Interpretation of statutes

 Que1. Explain the doctrine of ‘Retrospective Operation of

Statutes

Ans_ I
Laws are made in any country to punish wrongdoers for the heinous crimes they might commit.
These are generally formulated when there are increased instances of people being left scot-free
despite committing an offence due to the lack of proper legal provisions. A prime example of this is
the anti-defection law, introduced in 1985 owing to mass defections. As a result, these laws are
applicable to similar crimes that might be committed in the future. However, there have been
several instances in which the newly formulated or amended laws could be used to hold a person
liable for offences committed before the introduction of that law as well. These types of laws or
amendments are very rarely found in any country and are known as retrospective laws or statutes

Retrospective laws can generally be made for both criminal as well as civil offences. In recent
times, such legislation has become a topic of debate. While certain scholars are of the opinion that
such legislation directly violates the rights of the people, others feel it is necessary that the
wrongdoers get punished even though they committed a wrongful act that was unrecognized at
that point in time owing to the lack of any statutory provisions. This article will delve deeper into
all these aspects resolve the existing ambiguities in such laws

What is retrospective operation of statutes

The term ‘retrospective’ essentially means speculating or looking into the events or incidents that
have taken place in the past. When any law that was already existing is changed, altered, or some
portion of it is removed, it doesn’t remain the same as it was previously. However, the new
changes still have an influence on the events that occurred in the past. In other words, if a person
commits an act that was not considered to be an offence at that point under any legislation, but
becomes one after some changes in the existing laws or the introduction of a new law, the person
could be held liable even for the acts committed by him in the past that are now an offence.

This operation of a statute acts contrary to the general perception that any law is introduced to
consider the crimes that might be committed in the future. When a statute operates
retrospectively, however, the new law can be applied to the facts or the actions that were carried
out even before such a law had been proposed. When such a statutory provision is introduced
which aims to consider past actions as well, it is clearly stated that the act was said to be in
operation from the given date in the past. From that date forth, all the offences would be included
within the purview of the statute and the people would be punished. These statutes are also
known as ex-post facto laws. There can be four different scenarios that might arise when
retrospective legislation is introduced.
Recognition of crime
In this scenario, if a person carries out an act that was not wrongful at that point of time but later
on, due to the passing of legislation recognizing the same act as wrongful, he could be held liable.
This would happen when the law has a retrospective operation, making the person liable for acts
committed in the past that are wrongful or criminal in nature, due to the introduction of
legislation or a statute.

Removal of a crime
In a very rare scenario, ‘if a person has been sentenced for around 7 years for committing any
wrongful act, but 2 years later, the act committed by him is no longer unlawful with a
retrospective impact, the person could be directly released.’ It is a very rare situation to actually
happen that an act previously declared unlawful becomes a legal act.

An example of this is the decriminalization of Section 377 of the Indian Penal Code, 1860, which
stated that it had declared homosexuality a criminal offence. It is applied retrospectively to all the
citizens who were criminally charged because of their sexual orientation before the introduction of
this Act.

Reduction in punishment
Under this scenario, if the person has been punished for an act under any given statutory
provision but later on, some changes are made, leading to a reduction in the period of punishment.
This is a situation of a retrospective law dealing with amnesty to decriminalize certain acts and
grant a pardon to the wrongdoer. A person serving a prison sentence for a specified period will
have the punishment reduced owing to the same.

An example of this is the Amnesty Scheme. The government may introduce it to reduce the
payment of the late fee for tax filing. This would reduce the punishment for the late payment of
taxes.

Increase in punishment
When an existing law is amended with a retrospective impact to bring a wrongful act into a more
severe category than it was while being committed, the sentence or the term of punishment might
be increased for the wrongdoer. This might involve an increase in penalties, increasing the fines
payable, increasing the sentence of imprisonment, or any other factor.

These are some of the general impacts that a statute with a retrospective operation might have on
a person who committed a wrongful act recognized by the statutes later on.

General application of retrospective operation

of statutes
Substantive laws
Retrospective laws are generally applied in a country to either increase or decrease the
punishment for any particular crime. They may be placed into a more serious category or reduce
the punishment of the crime, thereby reducing their sentence. However, the treatment of
retrospective laws also varies for the various laws. A retrospective operation can only be given to a
statute affecting the substantive rights of the people and could be made applicable to the events
that took place in the past. For example, if a person committed a crime 2 years ago, which was
held to be a punishable offence, the act now is no longer a crime with a retrospective effect. It
would be applicable to the person and he would be released. This is an example of a retrospective
operation on substantive law.

Procedural laws
On the other hand, the above-mentioned is not applicable to procedural laws. The procedural laws
generally have a retroactive operation and not a retrospective operation. The retroactive operation
essentially means that the statute introduces a new obligation or transaction and, at the same
time, impairs certain vested rights. Hence, the retrospective operation of laws applies only to the
substantive laws and not to the procedural ones.

Declaratory laws
A declaratory statute refers to a statutory provision that aims to remove any ambiguities related
to prior law, either by explaining the previous statute or by reconciling the conflicts in various
judicial decisions. The declaratory laws, as a result, have a retroactive operation as they aim to
improve the prior laws. It is only when the rights are vested or the litigation is settled that they
are applied retrospectively, as stated in the case of Commissioner of Income Tax v Sriram
Agarwal (1986).

Explanatory laws
Explanatory statutes are also very similar to declaratory statutes and have a retrospective
application. These statutes aim to explain the law and rectify all the omissions that existed in the
previous laws.

Criminal applicability of retrospective

operation of statutes
Retrospective laws can certainly be made for criminal acts. However, these are not encouraged in
India. This is so because holding a person liable for an act committed by him in the past, which
was not unlawful at that point but now is, would be clearly unjustified. Most of the interpreted
legal provisions state that the punishment for the offences is prohibited from having a
retrospective effect. Only if stated in an implied manner with the appropriate intention, the new
punishments introduced under the laws are allowed to have a retrospective impact.
Difference between retrospective laws and ex-
post facto laws
Though both the retrospective and ex-post facto laws might have the same effect most of the time,
there are slight differences that exist between them. While all the ex-post facto laws are
necessarily retrospective laws, all retrospective laws are not ex-post facto laws. While ex-post
facto laws are prohibited in India, there is no such express prohibition on retrospective laws.
There are several retrospective laws that aren’t ex-post facto laws that are allowed to be
introduced for the purpose of amnesty in taxation, criminal punishment, etc. The retrospective
laws only look backward at the events of the past, but the ex-post facto laws act on the things that
are in the past. The retrospective laws aim to focus on acts committed in the past before the
commencement of the statute. On the other hand, any ex-post facto law might impose various new
obligations on the transactions or any act committed by an individual or impair the vested rights.

These are the major differences between ex-post facto laws and retrospective laws. In most
situations, these terms can be used synonymously. Yet, there are several laws that can have a
retrospective operation but can’t be ex-post facto laws, such as the amnesty schemes of taxation.

Ex post facto laws Retrospective laws

All retrospective laws are certainly not ex

All ex post facto laws are to be necessarily
post facto laws. These are a bigger set of
retrospective laws.
which ex post facto laws form a part.

Retrospective laws, if explicitly mentioned,

Ex post facto laws are prohibited to be
are allowed to be introduced, however, with
formulated in India.
certain restrictions.

Ex post facto laws impose various new

Retrospective laws focus on all the acts
obligations on the transactions or acts
committed in the past before the
committed by an individual or impair certain
commencement of the statute.
vested rights.

Difference between retrospective and

retroactive laws
The retrospective and retroactive laws both aim to look into the past, but the method of dealing
with the laws is different. While the retrospective laws just aim to look into the legal provisions of
the past, the retroactive laws not only look into the past but also aim to act upon them.

In the case of Jay Mahakali Rolling Mills v. Union of India (2002), the Supreme Court provided
the distinction. The Court stated that retrospective means the law which contemplates the past,
referring to a given statute that was there previously. It is made applicable to all the events that
occurred in the past before the new law came into force. On the other hand, a retroactive statute
refers to any statute that aims to look into the previous legislation and create certain new
obligations or transactions. At the same time, it might even impair or destroy certain vested
rights.
The Court further went on to say that retroactive laws aim to cover two distinct concepts. One is
true retroactivity, which involves the application of a new rule to an act that was carried out
before the rule had been made. The other is quasi retroactivity which applies to an act that is still
in the process of completion. On the other hand, the retrospective operation might become very
ambiguous. Such statutes, however, generally operate in cases that affect, even if only for the
future, the character of acts the person has previously indulged in.

These are some of the major differences between retrospective and retroactive laws, but the one
thing common to both is that they both focus on past acts.

Applicability of retrospective operation of

statutes in India
In India, the retrospective operation of any statute is prohibited for any civil offence.
The Constitution of India doesn’t permit a retrospective operation of any given act unless there is
any implication in law stating that the law that is there has to be retrospective in nature. Any Act
that is introduced in India that is held to be retrospective but has not been specifically implied in
the act, is said to be unconstitutional as well as void.

Making ex-post facto laws is completely prohibited under the fundamental rights stated in the
constitution of India. Under Article 20(1) of the Constitution, it has been clearly stated that there
could be no retrospective impact of the formulated laws on offences committed before the
introduction of the statute. The primary objective of this article is to ensure that the law and
order are maintained properly and that there is absolutely no illegal detention taking place. The
person who carried out an act at that point was completely aware that it was not unlawful, and
later on, if it is declared to be unlawful, it is clearly violative of his rights. The person won’t have
knowledge of any sort that the act he committed would be in the future declared unlawful or
illegal and hence should not be punished.

Examples of retrospective legislation in India

There are various examples of retrospective legislation in India. Though these laws primarily deal
in the field of taxation, there have been several other laws introduced in India.

One of the examples of such legislation is the Karnataka Scheduled Caste and Scheduled Tribe
(Prohibition of Transfer of Certain Lands) Act, 1978, which was retrospective in nature. This Act
aimed to prohibit the transfer of land granted by the government to people belonging to the
Scheduled Castes and the Scheduled Tribes. This law was also applicable on the land under the
ownership of the Scheduled Castes and the Scheduled Tribes before the enactment of this law.
Nobody was even allowed to purchase the land owned by the people belonging to SC and ST
communities.

Another major legislation was the Tamil Nadu Land Acquisition (Revival of Operation,
Amendment, and Validation) Act, 2019, whose constitutional validity was recently upheld by the
Supreme Court, which was going to be applied retrospectively till the year 2013. The reasoning
behind this decision of the Supreme Court was that the basic principle of the legislature is to
protect the public interest at large. The legislature is at the helm of protecting the rights of the
people and ensuring a democratic polity among the people. Hence, any step taken towards
achieving this purpose is considered to be lawful, and the contention raised by the petitioner that
it violated the principle of the separation of powers is completely invalid. For the public good, any
law can be operated retrospectively without any stoppage since the law doesn’t completely
prohibit the same.

However, if any retrospective law is to be introduced, it is only allowed for criminal matters and
not in the case of civil matters.

Retrospective laws for taxation

The retrospective laws are generally utilized for tax-related matters, such as the Amnesty
scheme. Those who fail to file their taxes on time are provided with some rebate, especially in the
times of Covid-19. There were crores of people who lost their jobs and many even went bankrupt.
Even small industrialists suffered a lot during this period. Many of them become incapable of
paying their taxes on time.

It is at this point in time that the government can make good use of retrospective statutes. People
would need to pay fewer taxes if the government amended the Income Tax Act, 1961 to state
fewer taxes to be paid with a retrospective effect. At the same time, this operation can be used to
impose some justified charges on transactions that have been carried out in the past. Such
retrospective taxes help in rectifying any deviations in the taxation policies that previously
allowed businesses to benefit from any kind of loophole.

There were several amendments that took place in this Act that were retrospective in nature. An
example of the same is explanation 7 to Section 9(1)(i) of the Income Tax Act, 1995, which had to
be applied retrospectively. It was declared by the Court in the case of Augustus Capital PTE Ltd v
DCIT (2020) that explanation 5 of the Income Tax Act was applied retrospectively for the removal
of any doubt with respect to the payment of the interest amount. Later explanations 6 and 7 were
introduced that had to be read along with explanation 5 for providing further clarity regarding the
accrued income. Since explanation 5 was applied retrospectively, the same should be the
treatment of explanations 6 and 7. Hence the assessing officer, in this case, was ordered by the
Court to read the concerned explanation 7 of Section 9(1)(i) as applicable from the year under
consideration and that there shall be no further additions or questions regarding the same.

Another landmark case with regard to Section 9 of the Act is Ishikawajima Harima Heavy
Industries Ltd v. Director of Income Tax (2007). Section 9 of the Act gave a whole new dimension
to the concept of ‘income deemed to have accrued in India’. The company concerned in this case
was involved in selling its products in the Indian market but was incorporated in Japan. There
was a question in this case regarding the tax treatment of the fees for technical services that were
to be paid by the non-resident companies in India. The Apex Court in this particular case held
that two conditions are to be fulfilled for explanation 7 of Section 9 of this Act to be made
applicable. The services from which the company is earning money on which the taxes are to be
imposed must be rendered as well as utilized in India. If both these conditions are satisfied, the
income is said to be accrued in India.

This judgement completely reversed the general perception that if the technical or consultancy
services were provided in India, the company would be liable to pay the taxes regardless of
whether these services were rendered outside India or not.

Further, the retrospective operation can also be used when the policies in the present and the past
were very different owing to the fact that firms were required to pay a lesser amount of tax. In
order to create a level playing field and to ensure justice and fairness in the payment of taxes. The
most recent example of a retrospective taxation law is the policy under the Union Budget 2022-23.
It brought about certain amendments to the Income Tax Act, 1961, which carried a retrospective
impact. The examples of various amendments brought about under the Income Tax Act, 1961 are
as follows.

1. The government allowed an exemption on the amount received for the medical
treatment and on the account of death due to Covid-19 retrospectively from April 2020.
2. The gifts and freebies provided to the doctors are not going to be treated as business
expenditures under Section 37 of the Income Tax Act of 1961. Further, even capital
expenditures of a personal nature are not to be reflected as expenditures under this
given act.
3. There was also a retrospective change brought about in the financial year 2005-06
wherein it was stated that any form of cess or surcharge couldn’t be deducted in the
form of expenditure.
4. With respect to the funding of companies, it has also been laid down in the budget that
the source of funding for any given loan or borrowing for its recipient is going to be
reflected only if the source of funds is appropriately explained in the hands of the
creditor. This measure is retrospectively going to impact all the major business ventures
in their funding processes. It would have a much more adverse impact on the Startups if
the creditor is not a venture capital fund that is legally registered with the SEBI
(Securities and Exchange Board of India). Earlier, only the PAN of the creditor by the
taxpayer would suffice, but now this is no longer the case. The recipient is required to
prove that it is the right source of income and that the creditor’s net worth was
appropriate to provide this amount.
Hence, the retrospective operation of the various amendments in the Income Tax Act, 1961 has
played a vital role in ensuring the fair payment of taxes by every individual on time. Secondly, it
has facilitated the introduction of amnesty schemes to provide some relief to small businessmen
and industrialists.

Relevant judgements

Commissioner of Income Tax v. Hindustan

Electrographite Ltd (1998)
In this particular case, the assessee was a public limited company, which had filed the income tax.
Apart from that, there was an additional amount representing the cash compensatory support
that wasn’t offered to the tax as an adjustment. It was not required under the Act prevailing in
1989. However, there was the introduction of the Finance Act of 1990 with a retrospective effect,
stating that the tax is also required to be paid on cash assistance.

The suit was henceforth filed in the Court, stating that these provisions are penal in nature.
However, the Court in this case declared that the provisions of this Act were not penal and, hence,
this legislation can certainly be retrospective in nature. It is only a penal law on which the
retrospective operation can’t take place.

Garikapatti Veeraya v. N Subiah Choudhary (1957)

In this case, there was an issue in the appeal from the trial court to the Supreme Court. Since the
amount of the suit was Rs 11,000 but the amount required for an appeal before the High Court
was required to be Rs 20,000, the appeal was not allowed. In this case, the Court stated that if
there is an absence of any statement to show that the law has a retrospective operation, it can’t be
determined to be the same. Hence such laws also cannot change the existing laws that are to be
applicable for determining the validity of any claim in the Litigation.

Ratan Lal v. State of Punjab (1964)

In this particular case, a boy who was 16 years old was held liable for committing trespass and for
outraging the modesty of a 7-year-old girl. He was ordered to rigorous imprisonment by the
magistrate and a certain amount of fine was also imposed upon him. However, later on, the
legislation known as the Probation of Offenders Act, 1958, came into force, in which it was stated
that any person below the age of 21 should not be imprisoned. The Court in this case held that
any legislation could be operated in a retrospective manner for the benefit of that person to reduce
the punishment. Hence, any form of ex-post facto law which is required for the benefit of the
accused is not prohibited from being introduced retrospectively under Article 20(1) of the Indian
Constitution.

Assistant Excise Commissioner, Kottayam and Ors v.

Esthappan Cherian and Anr (2021)
In this case, a writ petition had been filed wherein it was demanded that the amendment to Rule
13 terminating the liquor license should be quashed. As a result, a certain amount that was
sought to be recovered by him for giving the liquor license in the past had been stuck.

The decision in the High Court of Kerala was passed in favour of the licensee. However, an appeal
was made before the Supreme Court. The Supreme Court overruled the High Court’s decision and
stated that any rule or law that is passed cannot be interpreted to be retrospective unless it
explicitly mentions the opposite. Hence, the state was allowed to claim only 50% of the
departmental management fees that were due for the period after the contract of sale for the
liquor was terminated from the licensee.

Hitendra Vishnu Thakur v. State of Maharashtra

(1992)
This case defined the scope of the amendment brought in an Act and whether it should be allowed
to operate retrospectively. The Court laid down that if any given law affects the substantive rights
of any individual, then it should not be allowed to operate retrospectively. Apart from this, several
other general principles were also laid down in this case, which are as follows.

1. If any Act affects the substantive rights of an individual, it is assumed to be prospective

in its operation unless stated expressly, either in oral or written form that the law is
said to operate in a retrospective manner.
2. Each and every person who approaches the court for certain claims is said to have
certain rights stated in substantive law but these are not stated in any procedural law.
 3. All the laws relating to forum and limitation are said to be procedural, but all the laws
relating to the right to appeal or the right to take any given action are substantive.
4. Any Act that changes the procedure or leads to a change in the period of punishment
shall be presumed as prospective in operation unless stated otherwise either in spoken
or through a written mode.
5. A procedural statute should not be applied retrospectively where the impact of the same
is going to create new rights or obligations or even impose new duties on any transaction
that has already taken place.

Applicability of retrospective operation of

statutes at the global level
The retrospective statutes are still used in several countries, however, within certain restrictions.
Some of the countries have been mentioned below.

United Kingdom (UK)

Under English law, there is a presumption that, unless stated specifically, the statutes are not
assumed to have a retrospective effect. However, if a clear intention of any law being applied
retrospectively has been specified, there is no need to stop the same from being implemented. An
example of it was the Wireless Telegraph (Validation of charges) Act 1954, which provided the
basis of a statutory provision for the wireless license fees that have been collected for the last 50
years. In the Supreme Court judgement of Walker v Innospec Ltd and Ors, 2017 it had been
clearly stated by the Court that any enactment unless a contrary intention has been expressly
stated, is going to be prospective in nature. Hence similar to the rule in India, every statute shall,
by default have a prospective application.

Australia
In Australia, both the state and the Central Government have the power to make retrospective
laws that would also apply to past events. However, this has been criticized time and again in
Australia for being violative of the rule of law. This is so because, under the Australian principle
of the rule of law, the law must be known to all so that they can comply with it. In the case of R v
Kidman (1915), the retrospective operation was challenged for the first time. However, the High
Court, in this case, stated that though the power of the Australian Parliament is limited by
the Constitution, there is no limit on either the State Legislature or Parliament to formulate any
retrospective law.

France
In France, the formulation of ex-post facto laws was completely prohibited, as per Article 2
of Code Civil or the Napoleonic Code. The basic reasoning given in this Article is that the law
should only look into the future and shouldn’t be retrospective in nature. However, it was later
determined by the Constitutional Council, one of the highest authorities in France, that
retrospective laws could be introduced within certain limits. Similar to India, the council
generally also introduces retrospective laws relating to taxation. In criminal law, the punishments
as per the ex-post facto laws are still prohibited except in those cases where this legislation might
benefit the wrongdoer.

United States of America (USA)

Congress in America is prohibited from making any ex-post facto laws. This is one of the very few
restrictions imposed by the Constitution of the United States of America on both the state and
federal governments. When deciding upon the ex-post facto cases, the Court has relied upon the
judgement given in the case of Calder v Bull (1798), in which it proposed the four forms of
unconstitutional ex-post facto laws. However, it has not always been the case that ex-post facto
laws aren’t allowed. There was an Act introduced in 2006 known as the Adam Walsh Child
Protection and Safety Act that imposed certain new rules for registration for convicted sex
offenders, also applying to those who had committed these offences in the past. Hence, for the
common good of society, retrospective operation of statutes is prohibited in most situations.

Difference between retrospective and

prospective operation of statutes
1. A prospective operation of any statute essentially means that the statute as it is
formulated is solely focused on the future acts or offences that might be committed. It
doesn’t consider any past act or incident that happened that in the present times would
have constituted a crime. On the other hand, the retrospective operation of the law is in
absolute contradiction with prospective laws. Under this form, the law that has been
passed or the amendment made to the current times is also going to be applicable to the
events carried out in the past which would now constitute an offence. Hence, this
contradicts the general presumption of the law being effective in the future.
2. Any law, unless stated otherwise, is considered to be prospective in nature, i.e., to be
effective from either the date of its enforcement or from any other future date. This is
not the case with retrospective legislation. If such legislation is to be introduced, the
legislators need to specify the past date from which the law is going to be applicable.
Also, the Supreme Court has the power to decide whether a law should be enforced
retrospectively or not.
3. In India, all the laws relating to both civil and criminal matters can have prospective
operation. In other words, all the statutory provisions are going to be applicable to
future events or any of the acts. However, the retrospective statutes can only be used for
criminal matters and not civil ones.
4. The retrospective operation of any statute is most of the times highly criticized by the
people for violating their rights. While committing that act, they didn’t have the
knowledge that it was going to become unlawful in the future for which they could be
punished. On the other hand, there is general acceptance by the public for the
prospective operation of the statutes because they acquire complete knowledge about the
various offences and hence don’t commit them to attract any penalty.
5. Most countries in this world don’t recognize the retrospective operation of any statute or
with certain restrictions. Even in India, Article 20(1) of the Constitution prohibits the
enforcement of any retrospective law or amendment which might be harmful to the
rights of the citizens. However, the same is not the case with prospective legislation.
They are always given preference because it upholds the values of democracy and, at the
 same time, is the most favourable path to follow as people acquire the necessary
information about offences.
These are some of the major differences between the retrospective and prospective operation of
the statutes.

Retrospective operation of statutes Prospective operation of statutes

Such a statute focuses on the events of the Such a statute focuses solely on events
past, and the new laws introduced are resorting to wrongful acts after the
applicable to those past events. introduction of the act or the amendment.

Any statute introduced, unless expressly

No statute is presumed to ever be
stated otherwise, is considered to be
retrospective in nature.
prospective in nature.

A statute can have a retrospective

operation only when it is concerned with Any statute, whether concerned with civil or
civil matters and not criminal matters. criminal matters, is presumed to have
Criminal matters can only have a prospective operation.
retroactive operation.

The prospective statutes enjoy acceptance

Retrospective statutes are generally
from the general public and the governments
criticized by society and not recommended
are also mostly in favour of such statutes.
by governments because of their being
These uphold the democratic values of justice
unfair and unjustified toward the citizens.
and the rule of law.

The retrospective operation of statutes is

All countries generally accept all the new
still not recognized in most countries. In
laws to be applicable for future events, i.e.,
several other countries, these can be
prospective operation of the laws.
introduced with several restrictions.

Issues with retrospective operation of statutes

The primary intention behind introducing retrospective laws is to ensure that the people who
escaped liability in the past are held responsible or to reduce their punishment. However, its
enforcement poses many challenges to democracy and also brings the government under scrutiny.
Some of its ill effects are as follows:

1. It is violative of the basic rights of the people. It is directly violative of the principle of
the rule of law since the people aren’t treated equally in this situation.
2. When a retrospective law is introduced, the people who previously committed the
offence don’t have the required knowledge to comply with the same. The law is enforced
later but the person is punished for his/her past acts which is completely unjustified.
3. In the case of retrospective laws, the assent of the Supreme Court is required which
could certainly cause some delays.
4. A statute can have a retrospective operation only in criminal and taxation matters
thereby reducing its scope significantly.
 5. The retrospective laws can be used to obtain certain taxes which were evaded by the
people previously making use of the loopholes. At times, it becomes very difficult to
determine the year in the past from which it should be made applicable because the
interests of both the government and the people are to be considered.
6. The amendments which are retrospective in nature are most of the time very short-
sighted or short-lived that it steals the existing law of its stability which is essential for
its healthy growth.
7. Only the substantive civil laws can be operated retrospectively; the rest all have to be
operated retroactively. This acts as a limit to the retrospective laws.
These are some of the major limitations of retrospective legislation. There are problems not only
with the procedural aspects of it with the various formalities but also with respect to the
democratic values, including the people’s rights.

Conclusion
The retrospective operation of statutes is highly beneficial in certain areas but, at the same time,
could be violative of people’s rights. The procedural aspects could also be very complicated if seen
along with the Constitution of India. As a result, there is a need to balance the interests of both
the government and the citizens by some measures. After observing all the aspects relating to it,
it is fair to conclude that such laws have more negative as compared to positive impacts on
society. Hence, except for certain circumstances in which there is no other alternative, these laws
or amendments should not be allowed. Even with the recent Supreme Court judgements,
legislators have the power to make retrospective legislation. They should still be used within
reasonable limits so that there is fair justice for all. The purpose of law-making would be fulfilled
only by ensuring fair justice. Any law, regardless of its retrospective or prospective application,
should always uphold the democratic principle; if it is otherwise, as could be possible in the case of
retrospective legislation, appropriate action must be taken.

Frequently Asked Questions (FAQs)

Is civil law retrospective in India?

According to Article 20(1) of the Indian Constitution, only retrospective criminal laws are
prohibited. There is no prohibition on imposing civil liability retrospectively.

What is the presumption of any law?

Any new law introduced is presumed to be prospective in nature unless expressly stated to be
retrospective with the date in the past from which the statute shall apply.

What are the examples of retrospective laws in India?

The various examples of retrospective legislation in India are the Income Tax (Amendment) Act,
2021, Finance Act, 1990, and also the Karnataka Scheduled Castes and Scheduled Tribes
(Prohibition on transfer of certain lands) Act, 1978.
 Que2. Explain Noscitur a Sociis
Ans_I

Every provision of the statute as well as every word or phrase must be generally seen through the
lens of its context of its applicability, and not in isolation. Every part of the provision has to be
ascribed a certain meaning as well as effect in that context in which it is made. In this
background, to give effect to the elementary rule, the judiciary has developed the rule of noscitur
a socii. According to the Merriam Webster Dictionary, noscitur a socii refers to “the meaning of an
unclear or ambiguous word (as in a statute or contract) should be determined by considering the
words with which it is associated in the context.”[1]

Every word has a place in every sentence, which means that every word has two understandings
with it – one, denotation, and two, connotation. Denotation refers to the actual meaning of the
word, and connotation is the meaning of that word according to the placement of the word in that
particular sentence. Both these understandings are used in order to apply the rule of noscitur a
socii for the purposes of interpretation. The rule of noscitur a socii is considered to be a subsidiary
rule of interpretation. The term has Latin origins, with noscitur meaning knowing, a meaning
with, and socii meaning association. Simply put, it refers to ‘knowing with association.’ This
phrase is also part of a longer Latin maxim “noscitur ex socio qui non cogiiositur ex se” which is to
be understood as “he who cannot be known from himself may be known from his associates.

Applicability of the rule

The applicability of this rule of interpretation arises when a word or phrase in question cannot be
interpreted in isolation and requires the words that surround it to also be understood in order to
better grasp the concept. Another legal maxim to substantiate the same is “qua non valeant
singular juna juvant” which stands for “words which are ineffective when taken singly operate
when taken conjointly”.

Scope of the rule

The scope of this rule of interpretation is limited, for it can only be applied in the circumstances
where the law was either not clear or it was ambiguous. Otherwise, when there are no apparent
problems with interpretation, the rule cannot be used. It has also been made clear that the rule
cannot be used nefariously to make any of the associated words redundant [2]. The rule of noscitur a
sociis cannot be used in cases where the intention of the legislature or Parliament as the case
maybe, reflects its deliberate usage of words which would widen the scope.

Lord Macmillan had defined this rule of interpretation of statutes as “the meaning of a word is to
be judged by the company it keeps.” The philosophy of the said rule has been stated in “Words and
Phrases” as ascertainment of the understanding of any unclear word through getting a grasp of
the nearby words associated with it.[3]

The next chapter explains the difference between the two doctrines of noscitur a socii and ejusdem
generis.
Issues to be dealt with
1. What is the difference between the rule of noscitur a sociis and that of ejusdem
generis in the Indian context?
2. How has the Indian judiciary used the rule of noscitur a sociis?

Rule of noscitur a socii and rule of ejusdem

generis
The rule of noscitur a socii has an offshoot rule referred to as the rule of ejusdem generis. It is
considered that the rule of noscitur a socii is broader in understanding as compared to the rule
of ejusdem generis.

To understand the difference between the two doctrines, the rule of ejusdem generis has to be
understood. In the case of Kavalappara Kottarathil Kochuni v. State of Madras,[4] the applicability
of this rule has been stated. Here, it was said that the rule is only to be applied when there are
general words that follow other words, where these other words belong to a particular category all
those words are similar. It has also been held in this case that the rule “… is not an inviolable rule
of law, but is only permissible inference in the absence of an indication to the contrary.”[5]

This case law has explained the applicability of the canon of ejusdem generis well. According to it,
it applies in the circumstances where there is already a list or genus present, and not otherwise.
An example for the same would be that of the placement of a tomato in a grocery list, for example.
If the list reads, “tomato, potato, onion and garlic,” it is an indication of tomato being treated as a
vegetable; but when the same tomato is read along with “papaya, apples, bananas, and melon,” it
makes it clear that it is to be taken as a fruit. The rule of noscitur a socii applies in cases where
there is an ambiguity in the understanding of any word and hence has to be understood in the
context of the associated words. The rule of ejusdem generis however is applicable in similar
context, but only when that context consists of a category or class of items. Another point of
differentiation between the two rules is the fact that the rule of ejusdem generis is applicable only
when certain conditions are fulfilled, thereby restricting the scope of the rule even further. These
conditions are –

“(1) the statute contains an enumeration of specific words,

(2) the subjects of enumeration constitute a category,

(3) that class or category is not exhausted by the enumeration,

(4) the general terms follow the enumeration, and

(5) there is no indication of a different legislative intent.”[6]

All these conditions make it clear that the mention of a singular class does not imply or amount to
a category[7], and the fact that if the item in question can be a part of two different classes of items,
the rule does not apply[8].
Application of the rule of noscitur a socii in the
Indian judiciary
There have been various cases in the courts where the rule of noscitur a socii has been used. In
some circumstances, although the rule has been made applicable, it has not gone by the name
of noscitur a socii. This chapter discusses some of these landmark cases in no particular order.

 One of the pivotal cases that had discussed this rule in detail is that of State of Bombay
v. Hospital Mazdoor Sabha[9], way back in 1960 in the judgement authored by Justice
Gajendragadkar. Although the application of the rule had been rejected in the case by
the SC, the scope of the rule had been analysed. The judgement stated that the rule
of noscitur a socii is a mere rule of construction. It cannot be used where the legislative
intent is clear, that is, the legislature has deliberately used words of an open nature and
where this usage does not cause any ambiguity. The judgement also defined the scope of
this rule, that it can be used in circumstances where the legislative intent is unclear
because it is relating broad words with words of narrow meaning.[10]
 The case had also referred to the English case of The Corporation of Glasgow v. Glasgow
Tramway and Omnibus Co. Ltd[11], where the Earl of Halsbury, L.C. had said: “the words
‘free from all expenses whatever in connection with the said tramways’ appear to me to be
so wide in their application that I should have thought it impossible to qualify or cut
them down by their being associated with other words on the principle of their being
ejusdem generis with the previous words enumerated.”[12]
 In the case of State of Assam v. Ranga Muhammad,[13] the court applied the rule for the
question of whether the HC had to be consulted by the Governor in the transfer of a
sitting Judge, and held that upon applying the rule of noscitur a socii in the instant
case, the word “posting” in the context of district judges was associated with the other
words of “appointments” as well as “promotions.” But these two words could not be
interpreted to include “transfer” as well, and hence the Governor had to consult the HC
in this circumstance.
 Later, in the case of State of Karnataka v. UOI,[14] clarification was sought for in respect
of Art.194 of the Constitution of India. The rule of noscitur a socii was applied to the
question – whether the Art. imposed powers on the legislature, or on the members of the
legislature. To answer this question, the court applied this principle to say that the word
in question (“powers”), got not only its meaning, but also its context from the words that
had been used in relation to it.[15]
 In the case of Vania Silk Mills Pvt. Ltd. v. Commissioner of IT, Ahmedabad,[16] the
understanding of S2(47) of the Income Tax Act 1961 was done with the help of the rule
of noscitur a socii. With the usage of this rule, the SC interpreted that the term
“transfer” and said that because the legislature had provided for examples such as sale
and exchange, the phrase “extinguishment of any rights therein” had to be interpreted as
an extinguishment of rights because of a transfer only, and that it cannot be said to
refer to termination of any other right either related to or unrelated to a transfer.[17]
 In another case, the SC held that the meaning of the word “consumables” in S5B of the
Andhra Pradesh Goods and Services Act 1957 had to be read along with the words “raw
materials,” “component part,” “sub-assembly part,” as well as “intermediate part”. S5B
allowed for the tax to be imposed on raw material and the other words as given above.
Reading the word “consumables” in the context of these words, implies that the good
used must be as a means to obtain the final end product. But the natural gas that had
been used by the assessee was not used in the capacity of a consumable, and hence the
 Court held that the concessional rate as given in S5B could not be availed by the
assessee.[18]
 The entries in the Schedule(s) of the Central Sales Tax Act of 1956 and that of the
Central Excise Act of 1944 had been interpreted using the rule of noscitur a socii by the
SC in the case of Pardeep Agarbatti, Ludhiana v. State of Punjab and Ors.[19] Here, it
was said that in the event of articles being grouped together in the Schedules, they were
to be interpreted together, for each item in the grouped entry was associated with the
other and also drew colour from the other words that had been used there too. It went
on to add that had there been no association to be interpreted, then the legislature
would not have grouped those items together too.[20]
 The rule was used in another SC case, where the SC had interpreted that the words
“mineral,” “mineral oil,” and “ores” were all associated words and hence were to be
understood together[21]. The assessee claimed deductions under S. 80HHC(2)(b)(ii) of the
Income Tax 1961 for export turnover of granite, citing that the section exempted
mineral oil and ores from the deductions, but not the granite. The SC however, rejected
this interpretation and held that because all mineral, mineral oil and ores were
extracted from earth, including that of granite, the deductions did not apply to granite
as well.
 One of the Rules of the Code of Civil Procedure, 1908 (Rule 2A) was also interpreted
using the rule of noscitur a socii in the case of Samee Khan v. Bindu Khan.[22] The
Hon’ble Apex Court, after using the said rule concluded by saying: “Hence the words
“and may also” in Rule 2-A cannot be interpreted the context as denoting a step which is
permissible only as additional to attachment of property of the opposite party.” [23]
 The case of Oswal Agro Mills Ltd. v. Collector, Central Excise[24] the SC has interpreted
the case using this rule succinctly as “It is no doubt true that the doctrine of noscitur a
socii, meaning thereby, that it is a legitimate rule of construction to construe words in an
Act of Parliament with reference to words found in immediate connection with them i.e.
when two or more words which are susceptible of analogous meaning are clubbed
together, they are understood to be used in their cognate sense. They take, as it were, their
colour from each other, the meaning of the more general is restricted to a sense analogous
to a less general.”[25]
 In another case, the conviction of the appellant under S. 2(4) of the Bombay Shops and
Establishments Act of 1948 was held to be illegal[26]. This interpretation was also
brought using the rule of noscitur a socii. It was held that the words “commercial
establishment” and “profession” were considered with the words “trade” and “business”
and hence the scope of the former words must be restricted to that of the latter. The
court later went on to prove that the profession of the appellant did not fall under the
purview of the Act and hence his conviction was liable to be set aside.
 The meaning of the term “any sale held without leave of the court” was interpreted in the
association of the words “any attachment, distress, or execution put in force” in the case
of MK Jagannath v. Govt. of Madras.[27] This interpretation meant that only the sale of
properties that were done with the intervention of the court were considered to be
within the scope of this section. Any other sale, such as a sale done to a creditor, as was
the facts of the case, was held to be outside the purview of this section because of the
fact that there was no intervention of the Court.

Conclusion
This project has referred to various cases of the SC, where the principle of noscitur a socii has
been used in the various circumstances as were present. In order to present a holistic picture, the
author has also attempted to present the offshoot rule of ejusdem generis, as well as the
differences between the two. Although the judiciary has taken the pains to use the appropriate
canon of interpretation, an element of caution has to be ever present while using either of two
rules, so as to avoid any discrepancies. This is to be noted because there have been instances of
the wrong rule being used, as in the case of Rajasthan State Electricity Board v. Mohanlal and
Ors.[28], where the rule of ejusdem generis had been applied regarding the interpretation of the
phrase “other authorities” in Art. 12 of the Constitution of India.

The SC had referred to the various decisions given by the HCs and had stated that “In our
opinion, the High Court’s fell into an error in applying the principle of ejusdem generis when
interpreting the expression “other authorities” in Art. 12 of the Constitution, as they overlooked the
basic principle of interpretation that, to invoke the application of ejusdem generis rule, there must
be a distinct genus or category running through the bodies already named.”[29] In order to avoid
such instances, the Courts have to be more cautious in using the various rules of interpretation,
particularly the rules of noscitur a socii and the rule of ejusdem generis.

Que3. Explain the ‘Doctrine of Pith and

Substance’
Ans_I

The Doctrine of Pith and Substance states that if the substance of legislation falls within a
legislature’s lawful power, the legislation does not become unconstitutional just because it
impacts an issue beyond its area of authority. “True nature and character” is what the phrase
“pith and substance” signifies. The infringement of the constitutional delimitation of legislative
powers in a Federal State is the subject of this concept. The Court uses it to determine whether
the claimed intrusion is just incidental or significant. Thus, the ‘pith and substance’ concept holds
that the challenged statute is fundamentally within the legislative competence of the legislature
that enacted it but only incidentally encroaches on the legislative field of another legislature. The
present article discusses this doctrine majorly highlighting the same on how the Indian
Constitution has perceived this doctrine.

Evolution of the doctrine of pith and

substance
The Canadian Constitution inspired the doctrine of pith and substance. The country of Canada is
divided into two parts, namely, the Dominion and the Provinces. In order to divide the powers of
the Dominions and Provinces, the framers of the Canadian Constitution inserted two separate
lists to the Constitution. Section 69 of the Canadian Constitution, which was first established in
1857 as the British North America Act, separated the powers delegated to the Dominion from
those delegated to the Provinces. Furthermore, Sections 91 and 92 of the Constitution Act of
1867 define the Dominions’ and Provinces’ exclusive rights.

The origin of this doctrine can be traced back to the case of Cushing vs. Dupuy (1880) in Canada,
and it has since spread to India, where it is firmly supported by Article 246 of the Indian
Constitution and the Seventh Schedule, through which the Constitution of India divides the scope
of legislative powers between the Centre and states. The Union, State, and Concurrent Lists of
the Indian Constitution make up this schedule.
While the term ‘Pith’ implies genuine nature or essence of anything, ‘Substance’ indicates the
most important or vital aspect of something, to break down the concept to its molecular meanings.
The state and union legislatures are made supreme within their respective areas, and they should
not intrude on the sphere delimited for the other, according to the doctrine’s interpretation.

When a law approved by one legislature is contested or trespassed by another legislature, the
doctrine of pith and substance is applied. This doctrine states that while assessing whether a
certain law applies to a specific issue, the court looks to the content of the case. If the content of
the thing falls inside one of the three lists, the encroachment by law on another list does not
render it illegal since it is said to be ultra vires

Reason behind the formation of doctrine of pith and

substance The objective behind the creation of this doctrine was to prevent absolute
intrusion of legislative powers by evaluating the ‘content’ of enactment and then determining
which list the specific subject matter fell within. As a result, this doctrine is applied to establish
the legislative competency of a given law by examining the ‘content’ of that statute. Examining an
enactment’s ‘substance’ might lead to one of two outcomes:

1. The enactment’s substance corresponds to the subject matter given to the

legislature for the purpose of enacting laws: This will constitute the enactment
totally lawful.
2. Enactment includes subject matter that is outside the jurisdiction of the
federal or state legislatures: This may result in a partial or accidental incursion of
legislative powers, which may or may not render the entire statute invalid and void.
Certain subject topics enumerated in the three lists indicated in the Seventh Schedule
might overlap at times, therefore incidental encroachments are permitted to some
extent when evaluating legislative competency.

Early takes on the doctrine of pith and substance by

the judiciary
During the course of examining the scope of the intrusion, a crucial question about the grounds on
which legislative competence should be confirmed arose. In the case of Cushing v. Dupey (1880),
the Privy Council came to the rescue in 1880. In its judgment, the Privy Council developed the
doctrine of pith and substance, holding that the ‘pith and substance’ of enactment must be
considered in determining whether it falls within or beyond the scope of legislative powers
allocated to either the Dominion or the Province.

Lord Watson, while testifying for the Privy Council in the matter of Union Colliery Company of
British Columbia v. Bryden in 1889, caught the notion of “real essence and character” of law and
treated it as a metaphor “whole pith and substance” of an enactment.

Features of the doctrine of pith and substance

1. The philosophy behind the doctrine emphasises that it is the primary subject matter
that must be contested, not its unintended consequences in another discipline. Pith
 refers to a thing’s ‘essence’ or ‘real nature,’ whereas substance refers to a thing’s most
significant or fundamental portion.’
2. The adoption of this doctrine is necessary because otherwise every law would be
considered unconstitutional since it encroaches on the subject matter of another realm.
3. The actual character of law is defined by pith and substance. The true subject matter is
being questioned in this regard and not its unintended consequences in another
discipline. The idea has also been used in India to allow some flexibility in an otherwise
strict electricity distribution structure.
4. To identify which list a piece of legislation belongs to, the doctrine looks at its genuine
nature and substance.
5. It considers whether the state has the authority to enact legislation that affects a
subject from another list or not.

Doctrine of pith and substance under the

Indian Constitution
The doctrine of pith and substance, sometimes known as incidental encroachment, is a product of
Canadian jurisprudence that has been applied to the Government of India Act, 1935, and the
current Constitution. Occasionally, legislation is enacted under the authority of an item in one of
the VII Schedule’s Lists. The idea of pith and substance is employed in such instances to
determine which legislature has the authority to implement such legislation. The court must
consider the genuine nature and character of the law, whether it essentially comes within the
authority of the legislature passing it, and whether it is valid even though incidentally it touches
upon some matter within the competence of another legislature.

In general, the Parliament and state legislatures are supposed to stay in their allocated sectors
and not trespass on each other’s jurisdiction. If otherwise, the legislation would be declared illegal
by the judiciary. But first, it will apply the doctrine of pith and substance to determine the true
authority that the aforementioned piece of law comes under. To put it another way, the idea of
pith and substance is used to identify which category a piece of legislation belongs to. However,
the powers bestowed on each level are certain to intersect at some point. It is impossible to draw a
clear line between the competencies of separate legislatures as they will inevitably overlap at
times.

Need for the doctrine of pith and substance in India

1. One of the key reasons for the doctrine’s adoption and use in India was to give flexibility
to an otherwise inflexible framework for power allocation under a federal structure.
2. Another important ground establishing a need for the doctrine in India is that if every
legislation were to be declared invalid on the ground that it encroached on the subject of
another legislature, then these powers assigned to the legislature would be enormously
restrictive, and this would not serve the purpose of the power being granted to the
legislature.

Article 246 of the Indian Constitution : all you need to

know
The distribution of authority between the Union and the States is addressed in the Constitution’s
Seventh Schedule, which is enshrined under Article 246 of the Indian Constitution. Article 246 of
the Constitution defines the Union’s and states’ powers by categorising them into three lists,
namely, Union List, State List, and Concurrent List. The Indian Constitution establishes the
doctrine of separation of powers between the national and state governments. The three lists have
been placed hereunder:

1. Union List: This is the List in which the Centre has sole authority to enact legislation.
The Union List essentially covers military, foreign affairs, railways, and banking,
among other areas where Parliament can enact legislation.
2. State List: This is the List in which states have sole authority to enact legislation.
Public order, police, public health, and sanitation, as well as hospitals and dispensaries,
betting, and gambling, are some of the subject matters covered under the same.
3. Concurrent List: The List in which both the Centre and the states can pass legislation
is the Concurrent List. The central law takes precedence over state law in circumstances
of repugnancy. It covers subject matters such as education, population management,
family planning, criminal law, animal cruelty prevention, wildlife and animal
preservation, forests, and several others.
The Constitution’s Seventh Schedule has been amended several times since 1950. The Union List
and the Concurrent List have grown in size, while the State List has converged over the years. In
1976, the 42nd Amendment Act rebuilt the Seventh Schedule, guaranteeing that State List
subject matters such as education, forest, wildlife, and bird preservation and administration of
justice. Whereas, weights and measures were transferred to the Concurrent List.

Interpretation of the doctrine of pith and substance

In Kartar Singh v. the State of Punjab (1961), the Supreme Court’s Constitutional Bench
explained how the doctrine of pith and substance should be applied. It was discovered that when
the idea of pith and substance is applied, legislation relating to a topic in one of the lists may also
be connected, if indirectly, to a subject in another list. The essence and substance of the legislation
must be determined in such a case. If a comprehensive examination of the law reveals that it is on
a topic listed in a list pertaining to the legislature, the act in its whole is to be deemed legal,
regardless of any accidental encroachments that may exist.

When there is a question of legislative power, the courts must apply the theory of pith and
substance. The court analyses the statute’s subject matter to the subjects covered by the three
Lists, namely, the Union, the State, and the Concurrent List, and determines which of the three
lists would cover the law. If the statute is covered by the List that pertains to the legislature in
question, it is intra vires and hence lawful. However, if the enactment is unconstitutional, it will
be declared null and invalid.

It was decided in State of Rajasthan v. Vatan Medical and General Store (2001) that once
enactment is inside the four corners of an item in List-II (State List), no central law, whether
issued with respect to an entry in List I or List III, can impact the legality of that state
enactment. The Court further concluded that once enactment is related to Entry 8 in List II, or
any other entry in List II for that matter, Article 246 cannot be used to argue that the state
legislature is not competent to pass that statute.

In the case of Zameer Ahmed Latifur Rehman Sheikh v. the State of Maharashtra and Ors. (2010),
the notion of pith and substance was effectively articulated. The doctrine, according to the Court,
should be used when the legislature’s legislative power in relation to a certain statute is called
into doubt. If there was a challenge to the legislature’s capacity, the court would assess the law’s
gist and content after the Act had been scrutinised. It is critical for the courts to evaluate the real
character of the legislation, its goal, scope, and impact, as well as to determine if the law in issue
was genuinely covered by a subject matter listed in the legislature’s concerned list.

Doctrine of ancillary or incidental encroachment

The idea of ancillary and incidental powers broadens the legislative power’s scope. It specifies that
the authority to legislate includes the ability to legislate on supplementary or incidental subjects.
These abilities are intended to assist the primary goal of the enactment in question. This concept
allows for a broad and liberal reading of the items in the three legislative lists. The doctrine of
ancillary or incidental powers is utilised to determine the legislative authorities’ goals and scope.
The ability to legislate on incidental and supplementary topics aids in the extension of these
powers.

The question in R. D. Joshi v. Ajit Mills (1977) was whether the State legislature had the
authority to adopt a statute allowing it to forfeit the sales tax received by dealers. The Court ruled
that this was a punitive measure to ensure that social policy was properly and effectively
enforced. It further said that the entries must be given a broad interpretation in order to include
ancillary and incidental capabilities.

The doctrine of ancillary or incidental encroachment is in addition to the doctrine of pith and
substance. The Constitution specifies the legislative powers of both the Union and state
governments. Neither of them should meddle with the other’s power. When one person’s powers
are encroached upon, the notion of pith and substance comes into play. It aids in determining
whether the legislature in issue was competent to pass the law in question. The ‘pith and
substance’ of law, i.e., the legislation’s goal, must be within the limits of the issue over which the
concerned legislature has the authority to legislate. If such is the case, the law would be
unconstitutional, even if it appeared to trespass on the power.

Application of doctrine of pith and substance

by the Indian judiciary
When declaring an Act null and invalid, several considerations must be taken into account. It’s
possible that the concerned legislature inadvertently encroached on the authority of another
legislative, and in that case, careful inspection is required to ensure that it wasn’t done on
purpose. The Supreme Court of India had observed in the case of Assn. of Natural Gas v. the
Union of India and Ors. (2004) that understanding what would ordinarily be treated as “covered
within that subject in legislative practice” as well as the practice of such State that had conferred
such power.

This concept is a well-established legal theory in India, having been recognized by different high
courts and the Supreme Court. The doctrine of pith and substance comes into play whenever a
law is deemed to be intruding or trespassing into an area whose legislation has been allocated to
another. The essence of the theory is that if a dispute arises about whether a certain law applies
to a specific subject (which would be listed in one of the lists under the 7th Schedule), the court, in
deciding such questions, examines the content of the case. Although there are several notable
decisions by courts across India concerning the discussed doctrine, five landmark judgments that
contributed to embedding this doctrine in the Indian Constitution have received explanation
hereunder.
Prafulla Kumar v. Bank of Commerce, Kulna (1947)
The Bengal Moneylender Act, 1940 was passed for the greater good of the people and set a limit
past which money lenders could not collect any money. Even the rate of interest was set at a
maximum that the money lenders could collect. Moneylenders questioned the Act’s legitimacy
since the loan rate was so low.

The issue that arose with respect to the case of Prafulla Kumar v. Bank of Commerce,
Kulna (1947) concerned the constitutionality of the Bengal Moneylenders Act, 1940, which was
adopted by state legislatures. It was contested on the grounds that the Act only applied to
promissory notes. As the subject matter of promissory note comes under the Union List, it was
argued that the state had no power to create laws concerning a union matter.

Privy Council’s observations

1. The Privy Council correctly determined that the genuine object, scope, and effect of the
Act is money lending and interest on the same, that the primary issue is not promissory
notes, and that the state legislature can pass legislation to safeguard the true object,
extent, and effect.
2. In this case, the doctrine of pith and substance is critical in interpreting the case’s main
subject matter. The doctrine is used to safeguard the rigorous pattern of power-sharing
between the state and the Union since the major subject matter is money lending.
3. Whatever is supplementary or indirectly influences legislation established by a state
legislature must be credited to the proper list according to its genuine nature and
character to serve the wider public interest.

State of Bombay and another v. F.N Balsara (1951)

The decision in the case of State of Bombay and another v. F.N Balsara (1951) is noteworthy in
constitutional law because it clarified several ambiguities around the doctrine of pith and
substance. When a legislature’s legislative competence in regard to a particular enactment is
challenged with reference to entries in different legislative lists, the doctrine of pith and
substance is applied, as a law dealing with a subject in one list within the competence of the
legislature concerned also touches on a subject in another list, not within the competence of that
legislature. In such a circumstance, what must be determined is the essence and content of the
legislation, its genuine character, and nature.

Observations of the Supreme Court of India

1. Under List II, Entry 31 of the Indian Constitution, the state legislature has the
authority to entirely outlaw the keeping, marketing, and use of intoxicating wine. As a
result, there is no issue about the state’s and the centre’s jurisdictions clashing with
each other in this regard.
2. The Apex Court viewed that any act passed by the state legislature that prohibits or
restricts the export of the items listed in Entries 27 and 29 of List II outside the state’s
borders is illegal. However, because this Act was approved under List II Entry 31,
Section 297(1)(a) of the Bombay Prohibition Act, 1949 does not apply to it. As a result,
 the exemption granted to Army men, Land Forces messes, and Water Ships cannot be
ruled unconstitutional under Section 37 of the aforementioned Act.
3. The Supreme Court ruled that the portions of the Bombay Prohibition Act that dealt
with maintaining alcohol-mixed medications and toilet products, selling and buying
them, as well as using them, were unconstitutional under Article 19(1)(g) of the
Constitution, but the remainder of the provisions were upheld to be valid. It was also
established that an Act cannot be deemed entirely invalid simply by declaring any of its
sections to be illegal.
4. The Apex Court had also stated that under Article 277 of the Constitution, any taxes,
duties, cesses, or fees that were lawfully levied by the government of any State or
municipality or other local authority or body for the purpose of the state, municipality,
district, or another local area immediately before the commencement of the Constitution
may continue to be levied and applied for the same purpose until provisions to the
contrary are made by Parliament by law. Thus the legal principle that has been
established provides that if the state government has adopted an Act on a topic over
which it has constitutional authority, the Act is valid.

Synthetics and Chemicals Ltd. and Others v. the State Of U.P. and
Ors.
The above-discussed case is no longer relevant because it was overturned by the Apex Court’s
decision in the case of Synthetics and Chemicals Ltd. and Others v. State of Uttar Pradesh and
Others (1989).

This decision was made on the grounds that there could not be a full restriction of therapeutic
remedies including alcohol. As a result, it was argued that in the case of alcohol that is unfit for
human consumption, commerce in such an object cannot be regarded as a noxious trade. Only
when it is produced or processed for human use will it be a toxic trade.

The reasoning provided in the FN Balsara’s case was followed here. As alcohol is counted under
luxurious goods, the state legislature will have to collect taxes on the ownership of alcoholic
liquors suited for human consumption. However, because alcohol that is unfit for human
consumption is not a luxury, state legislatures will not be able to charge taxes on it, according to
the learned Attorney General. It was held that all alcohol taxes not covered by any other entries
in Lists I and II will be levied by Parliament.

State of Rajasthan v. G Chawla (1959)

The state of Rajasthan passed legislation prohibiting the use of sound amplifiers in the case
of State of Rajasthan v. G. Chawla (1959). The respondent broke the law, and the judicial
magistrate declared the deed unconstitutional. On appeal to the Supreme Court, the state argued
that the law was within the legislative competence of the state legislature under Entry 6 of List
II, that is the power to legislate in relation to public health includes the power to regulate the use
of amplifiers because they produce a loud noise, whereas the opposition argued that amplifiers fell
under Entry 31 of List I that includes post and telegraphs, telephones, wireless, broadcasting and
other like forms of communication.

Supreme Court’s observation

The Apex Court observed that even though the amplifier is a broadcasting and communication
apparatus, it did not fall under Entry 31 of List I because the legislation was a state matter in its
essence and was not held invalid even if it encroached on the subject of broadcasting and
communication by accident.

State of Karnataka v. Drive-In Enterprises (2001)

The imposition of tax on ‘drive-in-cinemas’ was at issue in State of Karnataka v. Drive-In

Enterprises (2001). A drive-in cinema is an open-air theatre premise in which entrance is
generally granted to people who want to see the movie while sitting in their automobiles. The
state assessed an entertainment tax on automobiles entering the theatre, in addition to collecting
an entertainment tax on those being entertained. The dispute arose as to whether the state
legislature has the authority to adopt legislation imposing a tax on entry of cars/motor vehicles
within such theatres under Entry 62, List II of the 7th Schedule or not. It is to be noted that the
state legislature has the authority to charge a tax on ‘luxuries, entertainment, amusements,
betting, and gaming,’ according to Entry 62.

Observations by the Apex Court

1. The Supreme Court stated that what must be determined is the true character of the
levy, its essence and content and that it is in this light that the state legislature’s
competence must be assessed. The doctrine of pith and substance states that enactment
cannot be held ultra vires simply because its nomenclature indicates that it encroaches
on matters assigned to another heading of legislation if it substantially falls within the
powers expressly conferred on the legislature by the Indian Constitution.
2. The Court further observed that the true nature and character of the contested tax, in
this case, is not on the entrance of cars/motor vehicles, but on the person amused who
drives their automobile into the theatre and watches the movie from their car. In
essence, the tax is placed on the person who is entertained, and it makes no difference
under whichever name or forms it is enforced. The term ‘entertainment’ is broad enough
to encompass the luxury or comfort with which one entertains oneself. The levy is
justified and lawful if a link between legislative competence and the subject matter of
taxes is established.

State of A.P. v. K. Purushotham Reddy (2003)

The A.P. State Council of Higher Education Act, 1988, established a State Council for higher
education in the present case. The Council’s responsibilities and tasks are divided, and it must
operate in accordance with Central UGC’s rules. It must support the UGC in determining and
maintaining standards, as well as proposing corrective actions for higher education in the state. It
lacks the authority to operate as an independent entity in the areas of coordination and standard-
setting for higher education, research, and technical institutes. The state Act is within the
legislative competence of the state legislature and does not trespass on the Central field. In
addition, the Act is not a colorable piece of legislation.

Observations by the Supreme Court of India

 1. It was decided in State of A.P. v K. Purushotham Reddy (2003) that the state legislation
may only be declared ultra vires when it cannot coexist with the Central legislation. The
legislation should be construed in such a way that its constitutionality is preserved.
2. The Apex Court further noted that the entries in Schedule VII should be construed
broadly. On a combined reading of List I Entry 66 and List III Entry 25, it is evident
that, while the State has a large legislative field to cover, it is subject to List I Entries
63-66. When it is determined that a state Act does not encroach into the legislative
sphere defined by Entry 66 List I, the state Act cannot be declared illegal.

Conclusion
The doctrine of pith and substance has been relevant in a number of cases in which the Centre
and the States have fought for legislative primacy. Because the Centre has more clout in India
than the states, several of the subjects on the Union List are extremely important. States are only
obligated to legislate on things that affect them. Even yet, overlaps may exist merely because one
legislation is linked to another, either directly or indirectly. It is therefore important that the
courts carry out their responsibilities without error.

Que4. What do you mean by ‘Literal or

Grammatical Interpretation
Ans_ I

One of the most substantial and the principal duty which are vested on the judiciary is the
interpretation of the statutes or law which are in force. When the courts deliver justice in a legal
dispute, they strictly abide with the boundaries framed by the legal frameworks which
encompasses certain laws, statutes, The Constitution and delegated legislations. The legal
framework of a democratic country like India includes a plethora of legislations and regulations.
The Legislature with the compliance of the procedural Parliamentary rules, formulates and drafts
certain written statutes and legislations. The courts deliver justice in a legal matter by
interpreting the underlying principles in these legislations. The written laws are substantiated by
the courts and justice is administered by the courts through the pronouncement of verdict over
the legal dispute. For the purpose of interpreting statues and to prevent any wrongful
interpretation of the laws, the court should follow certain rules to shape these laws. So, one of the
most basic rules of interpretation is the Literal rule of Interpretation of statutes where the court
interprets the wordings of the law as it is. However, there may be certain loopholes which may be
found in the law due to which it is not interpret a straight-forward understanding of the language
of the statutes. It may lead to ambiguity and absurdity if the courts interpret the natural meaning
of the language used in the statute.

Interpretation meaning
The term has been derived from the Latin term ‘interpretari’, which means to explain, expound,
understand, or to translate. Interpretation is the process of explaining, expounding and translating
any text or anything in written form. This basically involves an act of discovering the true meaning
of the language which has been used in the statute. Various sources used are only limited to explore
the written text and clarify what exactly has been indicated by the words used in the written text
or the statutes.

Interpretation of statutes is the correct understanding of the law. This process is commonly
adopted by the courts for determining the exact intention of the legislature. Because the objective
of the court is not only merely to read the law but is also to apply it in a meaningful manner to suit
from case to case. It is also used for ascertaining the actual connotation of any Act or document with
the actual intention of the legislature.

There can be mischief in the statute which is required to be cured, and this can be done by applying
various norms and theories of interpretation which might go against the literal meaning at times.
The purpose behind interpretation is to clarify the meaning of the words used in the statutes which
might not be that clear.

According to Salmond, “Interpretation” is the process by which the court seeks to ascertain the
meaning of the legislature through the medium of authoritative forms in which it is expressed.

Literal Or Grammatical Rule Of

Interpretation
The literal rule of interpretation is the first rule

to this interpretation. According to this rule, the words used in the text are to be given on
interpreted in their natural or ordinary meaning. If the meaning of a statutory provision is entirely
unambiguous after interpretation, the provision will be given effect, regardless of the implications.
The basic rule is that the legislature's aim while making a provision was represented through
words, which must be read according to grammatical standards.

It is the most to explore the written content and clarify the secure rule for interpreting statutes
since the legislature's intention is determined by the words and language utilised. The court's only
responsibility is to give effect to the statute's plain words, and it does not need to investigate any
potential consequences. The court's only responsibility is to interpret the law as written, and if any
unpleasant consequences result, the legislature must seek and enforce a remedy

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

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

Interpretation Construction
1. Construction, on the other hand,
1. In law, interpretation refers to
refers to drawing conclusions from
exposing the true sense of the
the written texts which are beyond
provisions of the statutes and to
the outright expression of the legal
understand the exact meaning of the
text.
words used in any text.
2. The purpose of construction is to
2. Interpretation refers to the linguistic
determine the legal effect of words
meaning of the legal text.
and the written text of the statute.
3. In the case where the simple meaning
3. In the case where the literal
of the text is to be adopted then the
meaning of the legal text results in
concept of interpretation is being
ambiguity then the concept of
referred to.
construction is adopted.

Classification of Statutes
Codified statutory law can be categorized as follows-

Codifying statutes
The purpose of this kind of statute is to give an authoritative statement of the rules of the law on a
particular subject, which is customary laws. For example- The Hindu Marriage Act, 1955 and
The Hindu Succession Act, 1956.

Consolidating statutes
This kind of statute covers and combines all law on a particular subject at one place which was
scattered and lying at different places. Here, the entire law is constituted in one place. For
example- Indian Penal Code or Code of Criminal Procedure.

Declaratory statutes
This kind of statute does an act of removing doubts, clarifying and improving the law based on the
interpretation given by the court, which might not be suitable from the point of view of the
parliament. For example- the definition of house property has been amended under the Income
Tax (Amendment) Act, 1985 through the judgement of the supreme court.
Remedial statutes
Granting of new remedies for enforcing one’s rights can be done through the remedial statutes. The
purpose of these kinds of statutes is to promote the general welfare for bringing social reforms
through the system. These statutes have liberal interpretation and thus, are not interpreted
through strict means. For example- The Maternity Benefits Act, 1961, The Workmen’s
Compensation Act, 1923 etc.

Enabling statutes
The purpose of this statute is to enlarge a particular common law. For example- Land Acquisition
Act enables the government to acquire the public property for the purpose of the public, which is
otherwise not permissible.

Disabling statutes
It is the opposite of what is provided under the enabling statute. Here the rights conferred by
common law are being cut down and are being restrained.

Penal statutes
The offences for various types of offences are provided through these statutes, and these provisions
have to be imposed strictly. For example- Indian Penal Code, 1860.

Taxing statutes
Tax is a form of revenue which is to be paid to the government. It can either be on income that an
individual earns or on any other transaction. A taxing statute thus, levies taxes on all such
transactions. There can be income tax, wealth tax, sales tax, gift tax, etc. Therefore, a tax can be
levied only when it has been specifically expressed and provided by any statute.

Explanatory statutes
The term explanatory itself indicates that this type of statute explains the law and rectifies any
omission left earlier in the enactment of the statutes. Further, ambiguities in the text are also
clarified and checked upon the previous statutes.

Amending statutes
The statutes which operate to make changes in the provisions of the enactment to change the
original law for making an improvement therein and for carrying out the provisions effectively for
which the original law was passed are referred to as amending statutes. For example- Code of
Criminal Procedure 1973 amended the code of 1898.
Repealing statutes
A repealing statute is one which terminates an earlier statute and may be done in the express or
explicit language of the statute. For example- Competition Act, 2002 repealed the MRTP Act.

Curative or repealing statutes

Through these statutes, certain acts which would otherwise be illegal are validated by curing the
illegality and enables a particular line of action.

Rules of Interpretation

Literal or Grammatical Rule

It is the first rule of interpretation. According to this rule, the words used in this text are to be given
or interpreted in their natural or ordinary meaning. After the interpretation, if the meaning is
completely clear and unambiguous then the effect shall be given to a provision of a statute
regardless of what may be the consequences.

The basic rule is that whatever the intention legislature had while making any provision it has
been expressed through words and thus, are to be interpreted according to the rules of grammar. It
is the safest rule of interpretation of statutes because the intention of the legislature is deduced
from the words and the language used.

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

Case Laws

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

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

It was held by the court that the Seas Act neither a court nor any judicial tribunal. Thus,
accordingly, he was not prosecuted earlier. Hence, his trial was held to be valid.
Manmohan Das versus Bishan Das, AIR 1967 SC 643

The issue in the case was regarding the interpretation of section 3(1)(c) of U.P Control of Rent and
Eviction Act, 1947. In this case, a tenant was liable for evidence if he has made addition and
alternate in the building without proper authority and unauthorized perception as materially
altered the accommodation or is likely to diminish its value. The appellant stated that only the
constitution can be covered, which diminishes the value of the property and the word ‘or’ should be
read as land.

It was held that as per the rule of literal interpretation, the word ‘or’ should be given the meaning
that a prudent man understands the grounds of the event are alternative and not combined.

State of Kerala v. Mathai Verghese and others, 1987 AIR 33 SCR(1) 317, in this case a person
was caught along with the counterfeit currency “dollars” and he was charged under section 120B,
498A, 498C and 420 read with section 511 and 34 of Indian Penal Code for possessing
counterfeit currency. The accused contended before the court that a charge under section 498A and
498B of Indian Penal Code can only be levied in the case of counterfeiting of Indian currency notes
and not in the case of counterfeiting of foreign currency notes. The court held that the word currency
notes or bank note cannot be prefixed. The person was held liable to be charge-sheeted.

The Mischief Rule

Mischief Rule was originated in Heydon’s case in 1584. It is the rule of purposive construction
because the purpose of this statute is most important while applying this rule. It is known as
Heydon’s rule because it was given by Lord Poke in Heydon’s case in 1584. It is called as mischief
rule because the focus is on curing the mischief.

In the Heydon’s case, it was held that there are four things which have to be followed for true and
sure interpretation of all the statutes in general, which are as follows-

1. What was the common law before the making of an act.

2. What was the mischief for which the present statute was enacted.
3. What remedy did the Parliament sought or had resolved and appointed to cure the disease
of the commonwealth.
4. The true reason of the remedy.
The purpose of this rule is to suppress the mischief and advance the remedy.

Case laws

Smith v. Huges, 1960 WLR 830, in this case around the 1960s, the prostitutes were soliciting in
the streets of London and it was creating a huge problem in London. This was causing a great
problem in maintaining law and order. To prevent this problem, Street Offences Act, 1959 was
enacted. After the enactment of this act, the prostitutes started soliciting from windows and
balconies.

Further, the prostitutes who were carrying on to solicit from the streets and balconies were charged
under section 1(1) of the said Act. But the prostitutes pleaded that they were not solicited from
the streets.
The court held that although they were not soliciting from the streets yet the mischief rule must
be applied to prevent the soliciting by prostitutes and shall look into this issue. Thus, by applying
this rule, the court held that the windows and balconies were taken to be an extension of the word
street and charge sheet was held to be correct.

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

Kanwar Singh v. Delhi Administration, AIR 1965 SC 871.

Issues of the case were as follows- section 418 of Delhi Corporation Act, 1902 authorised the
corporation to round up the cattle grazing on the government land. The MCD rounded up the cattle
belonging to Kanwar Singh. The words used in the statute authorised the corporation to round up
the abandoned cattle. It was contended by Kanwar Singh that the word abandoned means the loss
of ownership and those cattle which were round up belonged to him and hence, was not abandoned.
The court held that the mischief rule had to be applied and the word abandoned must be interpreted
to mean let loose or left unattended and even the temporary loss of ownership would be
covered as abandoned.

Regional Provident Fund Commissioner v. Sri Krishna Manufacturing Company, AIR

1962 SC 1526, Issue, in this Case, was that the respondent concerned was running a factory where
four units were for manufacturing. Out of these four units one was for paddy mill, other three
consisted of flour mill, saw mill and copper sheet units. The number of employees there were more
than 50. The RPFC applied the provisions of Employees Provident Fund Act, 1952 thereby directing
the factory to give the benefits to the employees.

The person concerned segregated the entire factory into four separate units wherein the number of
employees had fallen below 50, and he argued that the provisions were not applicable to him
because the number is more than 50 in each unit. It was held by the court that the mischief rule
has to be applied and all the four units must be taken to be one industry, and therefore, the
applicability of PFA was upheld.

The Golden Rule

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

The literal rule follows the concept of interpreting the natural meaning of the words used in the
statute. But if interpreting natural meaning leads to any sought of repugnance, absurdity or
hardship, then the court must modify the meaning to the extent of injustice or absurdity caused
and no further to prevent the consequence.
This rule suggests that the consequences and effects of interpretation deserve a lot more important
because they are the clues of the true meaning of the words used by the legislature and its intention.
At times, while applying this rule, the interpretation done may entirely be opposite of the literal
rule, but it shall be justified because of the golden rule. The presumption here is that the legislature
does not intend certain objects. Thus, any such interpretation which leads to unintended objects
shall be rejected.

Five part analysis of the golden rule of interpretation

Whenever there is a shadow of scepticism casted on the grammatical construction of any law then
in such circumstances, the golden rule of interpretation can be applied on the law in order to
apply it to the facts in a legal dispute. The external manifestation of the underlying law which is
interpreted from reading between the lines projects the true intent of the legislature for which the
golden rule is used. By taking into consideration the consequences of the judgement, the judges
have the discretion to interpret the law in a rational manner. The analysis of Golden Rule can be
divided into five categories as discussed below:

 WARBURTON’S CASE
Explaining the principle underlying the Golden rule, Justice Burton in the case of Warburton v.
Loveland observed that in the very first instance of application of law the grammatical sense of
the wordings of law must be paid heed. But if there is involvement of any absurdity,
inconsistency, or is against the declared purpose of the statute then in such circumstance, the
grammatical sense of the law can be modified or interpreted so far as there is no injustice caused
to the parties of the case. Even though the elementary rule of interpreting the words as it is in
their grammatical sense has been upheld by the courts in numerous cases like Madan Lal v.
Changdeo Sugar Mills, the courts should still be open to various interpretations of the law so that
no injustice is caused. This well-known rule was strictly formulated by Parke B. in the case
of Becke v. Smith wherein it was held that, the wordings of the law which are unambiguous and
plain nature should be construed in their regular sense even though, if in their assessment it is
absurd or promotes injustice. We assume the function of the legislature when we deviate from the
ordinary meaning of the statute due to which from the adherence to its literal meaning we
prevent the manifestation of injustice.

 LORD WENSLEYDALE’S GOLDEN RULE

The term golden rule was coined by Lord Wensleydale which was later adopted in the case of Gray
v. Pearson due to which it is primarily called the Lord Wensleydale’s Golden Rule of
Interpretation. Lord Wensleydale expressing this opinion of the rule, mentioned that he is deeply
awestruck with the perception of the rule which is being universally accepted by the courts all
over the world in order to understand all the written laws, construing wills and other written
frameworks. He also mentioned that the ordinary derivative and the grammatical construction of
the law should be abided by in the first instance unless there is any absurdity or repugnancy due
to which it is necessary to modify the ordinary understanding of the words. In the case
of Matteson v. Hart the golden rule was elaborately discussed by Jervis CJ where he relied on the
Golden Rule of Construction in order to understand the words used by the Legislature in the Acts
and also to prevent any absurdity and injustice which may stem from the intention of the statute.

 HEYDON’S RULE OF MISCHIEF

In the Heydon’s Rule of Mischief, he elaborated that only in such circumstances where the
intention of the legislature appears to be unjust, only in such cases the intervention of the office of
judges in interpreting the law is reasonable. Slightly deviating from what Lord Wensleydale has
opined, instead of viewing the legislative intent as a whole and construe it all-together, the
reasons for the enactment of the laws in retrospect should be taken into consideration so that we
can derive the object it plans to subserve and the evil it plans to end. In the case of Newspaper
Ltd. v. State Industrial Tribunal, the Latin maxim “ex visceribus actus” was cited which meant
that while determining the intention of the legislation, detached sections of parts of the Act
should not be taken, instead the intention of the act as a whole which construes the constituent
parts should be considered. This principle was reaffirmed in the case of Inland Revenue
Commissioners. V. Herbert where Lord Haldane interpreted a legislation which was newly
enacted and he adjudged that “Where words of general understanding are used, the common
understanding of men is one main clue to the meaning of legislature.” But the Golden Rule of
Interpretation laid by Lord Wensleydale has been a principle accepted worldwide.

 LITERAL GOLDEN MISCHIEF

As described by Lord Granworth LC, this is a “Cardinal Rule ” which is a rule based on common
sense which is as strong as can be”. In the English cases, there are three basic rules as elucidated
by GW Paton. Those are:

1. Whatever the result, if the meaning of the wordings of law is plain then they should be
applied as per the Literal Rule.
2. Unless there is any ambiguity or absurdity in the wordings of the law, the ordinary
sense of the law should be resorted to as per the Golden Rule.
3. The general policy or intention of the statute must be considered and eliminate the evil
which was directed as per the Mischief Rule.

 LATTER PART OF THE RULE

There is a lot of care which must be taken with regards to the later part of the Golden Rule and in
the case of Christopher v. Lotinga, every word of the Golden Rule was subscribed to by Justice
Willes. In the case of Woodward v. Watts, Justice Crompton expressed his doubts regarding this
rule and opined that the Legislature must have enacted the legislation with a particular intent
which may be destroyed if the courts reinterpret it due to some absurdity which defeats the whole
purpose of the enactment. To understand the applicability of the three methods of judicial
approach which is the literal rule, the golden rule and the mischief that the statute is designed for
in order to prevent it, the case of Vacher v. London Society of Compositors can be referred to. In
this case, the validity of Section 4(1) of the Trade Disputes Act, 1906 was in question as to
whether any torturous acts which are committed by the trade unions are included under the
protection or is it only such are which was torturous in nature in furtherance of any trade dispute.
Deciding on the former view, the House of Lords relied on the aforementioned three judicial
approaches in which Lord Macnaughten adopted the golden rule of interpretation which is derived
from the case of Grey v. Pearson, while Lord Atkinson espoused the literal approach which is
derived from the case of Cooke v. Charles A Vageler and lastly, the history of the enactment of the
stature and the application the mischief method has been relied upon by Lord Moulton.

Applicability and usage of golden rule of interpretation

If there is a choice between two interpretations, then the interpretation which reduces the futility
or which is narrower in nature fails to incorporate the purpose of the legislation due to which such
a construction must be avoided as discussed in the case of Nokes v. Doncaster Amalgamated
Collieries Ltd by Viscount Simon L.C. Instead, we should admit the bolder form of the
construction which is the intention of the Parliament to enact the legislation only for the purpose
of making the result effective. The transfer of an undertaking which includes, property, duties,
liabilities and rights from the old company to a new company is dealt with under Section 154 of
the Companies Act, 1929. In the case of Luke v. R.R.C. an issue was raised with regards to the
transfer of contract of service existing between the former company and the individual. The House
of Lords adjudged that the notice of amalgamation should be provided to the individual. The
golden rule of interpretation has been used in this case where if the prima facie meaning of the
words would be taken into consideration, then no consent would be required of the employee
during amalgamation, but this would lead to injustice. But in the present case the court deviated
from the wordings of the law and decided that it is the duty of the transferor company to inform
the workers about the amalgamation.

A restricted Construction was adopted by the legislature while drafting the Central Services
(Classification, Appeal And Control) Rules, 1956 specifically Rule 11(VI) due to which it was
interpreted by the court by using the Golden Rule in the case of Nyadar Singh v. Union of India.
This provision imposes a penalty if there is any reduction in the grade post or service or the pay
scale of the employee. It was adjudged by the Supreme Court that if any person is appointed to a
bigger post or pay grade, then he cannot be abridged to a lower pay grade or post due to which
this provision acquired a wider construction as interpreted by the Court. As per Maxwell, the
applicability of Golden Rule is significant in the area which is dedicated to the construction of
legislations to adjudge consequences and also the construction of certain provisions which
eliminate injustice and inconvenience or also evasion.

To explain the applicability of the Golden rule, the case of Free Lanka Insurance Co. Ltd. v.
Panasinghe can be referred where it was held that if a prisoner escapes from prison due to fire
accident, then he did not commit a felony under the Statute as this act committed by him was not
with the intention of getting freedom but it is to save his life. Similarly, if there is any act which is
done on certain justifiable grounds then that act would not qualify as criminal in nature.

The Supreme Court and High Court in India have applied the Golden Construction of Statutes in
various judgements as previously discussed. But there is a certain confusion which is observed
between the Golden rule and the Literal Rule as even though initially the literal meaning of the
statute is taken into consideration if it is plain and logical but if there is any trace of absurdity or
uncertainty then the interpretation of the court would pay a significant role. But if there is a
possibility that there is more than one meaning of the wording in the statute, then any addition,
substitution or rejection should be done by the court modifying the language so that the intention
of the legislature is expounded. Some of the landmark Indian cases in which the Golden Rule was
used was with respect to the interpretation of the provisions like “Section 23 of the
Representation of People’s Act, 1951” and Section 3A of the U.P. Sales Tax Act, 1948 which were
dealt with in Narendra Kiadivalapa v. Manikrao Patil and Annapurna Biscuit Manufacturing Co.
v. Commissioner of Sales Tax, U P respectively. Therefore, the applicability of the Golden Rule of
Interpretation in the Indian cases and the foreign cases has a narrow and wide approach which
needs to be observed by the courts in their working.

The judicial criticism faced on the

application of golden rule
The golden rule of interpretation should be adopted with caution because of certain reasons which
were discussed by the Court in the case of Lord Moulten in Vacher & Sons v. London Society of
Compositor. There is a possibility that this rule could develop into a conventional jurisdictive
critique of the legislature’s acts’ legality. The statutes must be interpreted on the basis of the
wordings of the law, and while the respective resultants of two competing interpretations may
occasionally direct us in our options, we can only do so if we are in a position to convince ourselves
that the words could not have been used as per the sense of the suggested arguments by looking
at the Act as a whole and comparing it to the prevailing law of the land at the time of the
enactment of the legislation. The legal rights or laws which are formulated for the advantage of
the community at large may come in struggle with the individual interest of the public due to
which it may cause injustice in the form of repugnancy or absurdity. The Apex Court in the case
of State Bank of India v. Shri N. Sundara Money has judged that the duty of the courts of justice
is to take care of the rights of the public at large instead of individual rights. If the words of the
statute are absurd in their nature, then they should even come under the term of repugnancy in
order to use the Golden Rule due to which the scope of the term is wide.

The Golden Rule is considered to be an old law which has been used since the 16th century, when
British law was the fundamental basis for law and parliamentary sovereignty had not yet been
constituted. It is contended that it gives the unelected judiciary too much jurisdiction and
responsibility, which is undemocratic in nature. The Golden Rule also clearly violates the law of
the land by constructing a crime after the occurrence of the events, as observed in in Smith v
Hughes and Elliot v Grey. It encroaches on the separation of powers by assigning judges a
legislative role, and judges can bring their own opinions, conscience, and preconceptions to a
matter, as seen in the case of DPP v Bull and Smith v Hughes.

Case laws
Tirath Singh v. Bachittar Singh, AIR 1955 SC 850

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

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

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

State of Madhya Pradesh v. Azad Bharat Financial Company, AIR 1967 SC 276, Issues of
the case are as follows.

A transporting company was carrying a parcel of apples was challenged and charge-sheeted. The
truck of the transporting company was impounded as the parcel contained opium along with the
apples. At the same time, the invoice shown for the transport consisted of apples only.

Section 11 of the opium act 1878, all the vehicles which transport the contraband articles shall
be impounded and articles shall be confiscated. It was confiscated by the transport company that
they were unaware of the fact that opium was loaded along with the apples in the truck.

The court held that although the words contained in section 11 of the said act provided that the
vehicle shall be confiscated but by applying the literal rule of interpretation for this provision it is
leading to injustice and inequity and therefore, this interpretation shall be avoided. The words
‘shall be confiscated’ should be interpreted as ‘may be confiscated’.
State of Punjab v. Quiser Jehan Begum, AIR 1963 SC 1604, a period of limitation was
prescribed for, under section 18 of land acquisition act, 1844, that an appeal shall be filed for the
announcement of the award within 6 months of the announcement of the compensation. Award was
passed in the name of Quiser Jehan. It was intimated to her after the period of six months about
this by her counsel. The appeal was filed beyond the period of six months. The appeal was rejected
by the lower courts.

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

Harmonious Construction
According to this rule of interpretation, when two or more provisions of the same statute are
repugnant to each other, then in such a situation the court, if possible, will try to construe the
provisions in such a manner as to give effect to both the provisions by maintaining harmony
between the two. The question that the two provisions of the same statute are overlapping or
mutually exclusive may be difficult to determine.

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

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

Cases –

Ishwari Khaitan Sugar Mills v. State of Uttar Pradesh, in this case, the State Government
proposed to acquire sugar industries under U.P Sugar Undertakings (Acquisition) Act, 1971. This
was challenged on the ground that these sugar industries were declared to be a controlled one by
the union under Industries (Development and Regulation) Act, 1951. And accordingly, the
state did not have the power of acquisition of requisition of property which was under the control of
the union. The Supreme Court held that the power of acquisition was not occupied by Industries
(Development and Regulation) Act, 1951. The state had a separate power under Entry 42
List III.

M.S.M Sharma v. Krishna Sinha, AIR 1959 SC 395.

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

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

Conclusion
Every nation has its own judicial system, the purpose of which to grant justice to all. The court aims
to interpret the law in such a manner that every citizen is ensured justice to all. To ensure justice
to all the concept of canons of interpretation was expounded. These are the rules which are evolved
for determining the real intention of the legislature.

It is not necessary that the words used in a statute are always clear, explicit and unambiguous and
thus, in such cases it is very essential for courts to determine a clear and explicit meaning of the
words or phrases used by the legislature and at the same time remove all the doubts if any. Hence,
all the rules mentioned in the article are important for providing justice

Que5.Explain the ‘Doctrine of

Colourable Legislation’
Ans_ I

Federalism is the basic structure of the Indian Constitution. The sovereign authority derived from
the Constitution is distributed between the two levels of government: the centre and the states.
This step promotes better administration and includes growth in the nation. At times, one
government body attempts to encroach on the jurisdiction of another government body by
enacting legislation that is not within their purview of governance or by passing laws that give
them authority to enact laws from another’s domain of governance. This defeats the very purpose
of federalism, and there is always a constant risk of one government authority becoming more
powerful and starting to impose its decisions on another government authority.

The doctrine of colourable legislation discourages the misuse of the legislative authority of the
government by judicial intervention to maintain the balance of power in the country. The doctrine
of colourable legislation is not explicitly mentioned in the Indian Constitution; however, the
judiciary has interpreted this doctrine via its judgements to protect the federal nature of our
country. Whenever the centre or any state tries to expand its legislative sphere
unconstitutionally, the doctrine provides the judiciary with the authority to prevent them from
doing so.

The following article delves into the concept of the doctrine of colourable legislation in detail and
further provides comprehensive details of constitutional provisions, significance and limitations of
the doctrine of colourable legislation.
The doctrine of colourable legislation
The doctrine of colourable legislation is a legal principle that aims at the prevention of excessive
and unconstitutional use of the legislative authority of the government. The doctrine is derived
from the Latin maxim “quando aliquid prohibetur ex directo, prohibetur et per obliquum” which
means things that cannot be done directly should not be done indirectly either. The Black’s Law
Dictionary defines the word ‘colourable’ as:

1. Appearing to be true, valid or right.

2. Intended to deceive; counterfeit.
3. Appearance, guise or semblance.
In a literal sense, the doctrine of colourable legislation means that the government is enacting
legislation under the guise of having authority even though it does not possess any competent
authority to do so.

The judiciary has the authority to prevent the government from the abuse of its power. When the
government misuses its legislative authority by making laws outside its demarcated jurisdiction,
the judiciary has the power to review them and strike them down if they are found
unconstitutional.

The doctrine of colourable legislation is also known as “Fraud on the Constitution” because the
legislature of the government authority does not enact laws according to the provisions mentioned
in the Constitution. The legislative authority creates a delusion that it is acting in compliance
with the constitutional provisions but in reality, it does not.

The Supreme Court in the case of R. S. Joshi v. Ajit Mills (1977) determined the term colourable
exercise of power, fraud on legislative power and fraud on the constitution are similar expressions
which mean the legislature is incompetent to enact a particular law.

According to this doctrine, the legitimacy of legislation is identified depending on the competency
of the legislature to enact a particular law, not on the motives or intentions of the legislature. The
judiciary, while determining whether a law is a colourable legislation, does not take into account
the intentions of the legislature; it only considers whether the particular legislation is within the
jurisdiction of the government authority or not.

Evolution of the doctrine of colourable

legislation in India
he doctrine of colourable legislation was introduced in India by the British administration.
Though the British practised a unitary form of government in the initial days of their rule, later
they shifted to the federal mode of government. During British rule, power was distributed
between the centre and the provincial units. The doctrine of colourable legislation was used to
determine the authority of different government bodies in the country and ensure the balance of
power between them. This doctrine was adopted by the British government from Canada and
Australia.

Canada: The doctrine of colourable legislation is an important component of the constitution of

Canada. The British North America Act, 1867 established a federal government in Canada by
incorporating the territories of Nova Scotia and New Brunswick. Section 91 – 95 of the Act deals
with the distribution of power among the central government and the provincial units. Later, the
Constitution Act, 1982 also had provisions for the distribution of powers among the government
bodies. These constitutional provisions led to the development of the doctrine of colourable
legislation. The doctrine is used to supervise the legislative authority of the government bodies.

Australia: Australia adopted a federal government with the enactment of the Commonwealth of
the Australia Constitution Act, 1901 by incorporating the territories of New South Wales,
Tasmania, Queensland, Victoria, Western Australia and Southern Australia. Australia comprises
of two-tier government system- Commonwealth government or Federal government and state
governments. Section 51 of the Australian Constitution consists of the legislative powers of the
Commonwealth government and the states have the authority to enact laws on unlisted subjects
in section 51. These are known as residuary powers. Apart from these the Australian Constitution
also comprises a concurrent list where both the Commonwealth government and state
government can enact laws. The doctrine of colourable legislation was developed by the judiciary
based on these constitutional provisions. The doctrine was used to determine the valid exercise of
legislative powers by the government bodies.

Even after independence, the doctrine of colourable legislation remained to be an integral part of
the Indian Constitution. The judiciary further developed the doctrine of colourable legislation
through its judgements to regulate the legislative authority of the government bodies.

Article 246 of the Indian Constitution

The Indian Constitution does not expressly mention the doctrine of colourable legislation.
However, Article 246 and Article 246A outlines the legislative authority of the centre and states
and judiciary have the power to declare any legislation unconstitutional if the legislature exceeds
its authority.

Article 246 of the Constitution discusses the federal nature of India. Article 246 distributes the
power between the centre and the states and specifies their authority to enact laws on various
subjects. The Seventh Schedule divides the legislative authority between the centre and states
into three distinct lists in order to prevent them from intruding on each other’s legislative
domain.

The subjects are divided into three lists:

(1) Union list;

(2) State list;

(3) Concurrent list.

The subjects in each list are carefully divided to avoid conflicts between the centre and states. The
Constitution grants complete autonomy to the centre and the states to make legislation within the
purview of their jurisdiction to ensure efficient governance.

Union list
The union list contains matters of national importance, and the central government has the
exclusive right to make legislation for the whole country or any region. The centre has the power
to make laws regarding the subjects mentioned in the union list. The union list contains 97
subjects such as external security, defence, communication, trade etc.

The central government is entrusted with the responsibility of maintaining external security and
internal peace in the country. With respect to this, the union government can raise funds to
develop armed forces and make necessary laws on warfare industries for the manufacturing of
arms and ammunition.

The central government has the right to make laws on transportation to improve connectivity
between different parts of our country and other nations. They include the creation and
management of roads, railways, national waterways, airways, aircraft, ports, and lighthouses for
the establishment of transport, infrastructure, and communication both domestically and
internationally.

The union government also engages in diplomacy and maintains foreign relations for the nation’s
best interest. The union government represents India at international conferences and in foreign
countries for conventions and trade negotiations.

Apart from these, the central government has the right to enact laws on currency, coinage, foreign
exchange, foreign loans, the Reserve Bank of India, inter-state communications, trade,
incorporation, regulation and winding of corporations, banking, stock exchange and futures
exchange, patents, copyrights, insurance, trademarks, and inter-state disputes.

State list

The state list contains subjects that are vital for the effective functioning and administration of
the state. Every state in India has the exclusive power to make laws pertaining to the subjects in
the state list suitable for the respective state. The state list contains 61 subjects. Initially, there
were 66 subjects in the state list, but after the 42nd amendment of the Indian Constitution, five
subject matters relating to education, forests, protection of wild animals and birds, weights and
measures, and administration of justice, including the constitution and organisation of all courts
except the Supreme Court and High Courts were transferred to the concurrent list.

The state government has the power to implement necessary legislation to maintain law and
order in their respective states. The state government controls the police forces in the state. The
police are entrusted with the maintenance of peace and harmony within the state. The
government has the right to enact laws and regulations with regard to state police in compliance
with the requisites of the state.

The state government, in accordance with the socio-economic demands of the state, can facilitate
public hospitals, dispensaries, libraries, museums, and provisions for unemployed people.

The municipal corporations, improvement trusts, district boards, mining settlement authorities,
and other local authorities are subject to state control to ensure the proper functioning of local
self-government or village administration.
Apart from these, the state list also includes prisons, reformatories, pilgrimages, the
manufacturing of liquors, burial grounds, agriculture, agricultural research and education,
irrigation, land revenue, taxes on agricultural produce, buildings, and the sale or consumption of
electricity.

Concurrent list
The concurrent list contains subjects that are of interest to both the centre and the states. Both
the centre and states have exclusive power to enact laws pertaining to the subjects mentioned in
this list. However, if both the union and state governments make laws on the same subject, the
central government’s law will take precedence. The primary aim of the concurrent list is to
promote the diversity of laws, social traditions, and federal experimentation. The concurrent list
contains 52 subjects in total.

The subjects of the concurrent list include criminal law and procedure, civil law, preventive
detention, marriage and divorce, adoption, will, intestacy and succession, transfer of property,
registration of deeds, relief, and residence of people displaced from their original place of
residence, drugs and poisons, charitable institutions, religious endowments and institutions,
newspapers, books, printing presses, actionable claims, trusts and trustees, bankruptcy and
insolvency and contracts including partnership, agency and contract of carriage.

Article 246A of the Indian Constitution

Article 246A was enacted into the Constitution through the One Hundred and First Amendments
in 2016. Article 246A confers power to the centre and the states to levy and collect taxes
simultaneously. This resulted in the introduction of the Goods and Services Tax (GST) in India.

In the pre-GST period, the Value Added Tax (VAT) was implemented for the collection of indirect
taxes. This system required taxes to be paid at every stage of production, from the manufacturing
of raw materials to finished goods. However, this system achieved very little success. The Report
of the Task Force on Implementation of the Fiscal Responsibility and Budget Management Act,
2003, recommended a comprehensive GST policy based on the VAT principle with the integration
of all state governments.

The GST system was introduced in 2016, and it is a single taxation policy enacted to remove
numerous indirect taxes levied by the central and state governments. Article 246A mentions that
the Legislature of every state shall have the power to make laws with respect to goods and
services taxes imposed by the Union or by such a state. It also states that the central government
will have the exclusive power to levy and collect taxes in the course of inter-state trade.

Significance of the doctrine of colourable

legislation
 The doctrine of colourable legislation plays a crucial role in preventing the misuse of the
legislative authority of the government through timely judicial intervention.
  The judiciary, with the assistance of this doctrine, maintains balance in the country,
whenever any government authority attempts to become more powerful than the rest in
an unauthorised manner.
 The doctrine of colourable legislation confers the power of the judiciary to check the
competency of legislation in accordance with its jurisdiction. The courts also have the
power to strike them down if they find them unconstitutional.
 When the legislature becomes the dominant power, it may impose its decisions on other
organs of the government. This becomes a serious threat to the concept of separation of
powers. The doctrine of colourable legislation prevents this abuse of authority by a
single body.
 It encourages the legislature to act in a more vigilant manner.
 It preserves the spirit of democracy by reminding the government of its responsibilities
towards the country and promoting the desires and aspirations of the people.

The doctrine of pith and substance

The doctrine of pith and substance aims at determining the true essence of a law. The term “pith”
signifies “true nature” or “essence of something” and the term “substance” signifies “the most
important part of something.” When the legislature enacts a law by encroaching on the authority
of another legislature, such a law is deemed to be void or ultra vires. In such circumstances, the
doctrine of pith and substances examines whether there is incidental or significant trespass by
the legislature, and if there is only the slightest trespass by the legislature, the doctrine
determines such a law to be valid.

The doctrine of colourable legislation aims at the prevention of the excessive use of the legislative
authority of the government, while the doctrine of pith and substance deals with the true nature
of the law. The doctrine of colourable legislation only examines whether the law is within the
legislative sphere of the government and strikes it down as being ultra vires, but the doctrine of
pith and substance considers the degree of violation of the legislative powers in the judicial
review.

The doctrine of pith and substance eases the rigid federal structure. The doctrine assists the
legislature in the maintenance of its power by not allowing the judiciary to declare a law invalid
for the slightest trespass on legislative power.

The doctrine of colourable legislation and the doctrine of pith and substance derive their authority
from the Constitution of India to maintain the federal structure of our country and protect the
powers of legislative bodies. Whenever the legislature exceeds its authority the courts are at the
discretion to apply any one of the doctrine depending on the circumstances of a case.

In the case of Prafulla Kumar Mukherjee v. The Bank of Commerce (1947), the validity of
the Bengal Money-Lenders Act, 1940, was challenged before the Bombay High Court. This Act
was introduced to govern money lending, which belongs to the state list; however, some provisions
of the Act controlled matters relating to promissory notes, which fall under the union list. It was
argued that the Act encroaches on subject matter belonging to the central government. The Court,
applying the doctrine of pith and substance, held that it is not possible to make a clear-cut
distinction between the powers of legislatures, and the powers are bound to overlap. Thus the
Court determined that the Bengal Money-Lending Act should be examined according to its true
nature and character rather than merely looking at the legislative capacity of the state. The court
held the Act to be valid by applying the concept of pith and substance.
Limitations of the doctrine of colourable
legislation
While the doctrine of colourable legislation is considered one of the primary safeguards to prevent
the misuse of legislative power by the government, it is also constrained by a few limitations.

Subordinate Legislation

Subordinate legislation is a law passed under the power of existing legislation, not directly by the
legislative body of the government. Subordinate legislation is also known as delegated legislation.
Since subordinate legislation is enacted by the delegated authority of competent primary
legislation, there is always a presumption of the legitimacy of such laws. The burden of proof lies
with the person challenging the legality of the law.

The Supreme Court in Ram Krishna Dalmia v. Justice S.R. Tendolkar (1958) stated that “there is
a presumption in favour of the constitutionality of an enactment and the burden is upon him who
attacks it to show that there has been a clear transgression of the constitutional guarantee”. This
decision was upheld in another Supreme Court judgement, Mahant Moti Das v. S.P. Sahi (1959).

Intentions or motives

The doctrine of colourable legislation merely examines the competency of the legislature to pass a
law; the doctrine is not concerned with the mala fide or bona fide intentions and motives of the
government to enact the law. The judiciary only reviews legislation on whether it is within the
competent jurisdiction or not and fails to examine the bona fide or good intentions of the law.
Sometimes, a good law, despite having the potential to serve the interests of the public, gets
rejected because it is not within the competent jurisdiction.

Justice B.K. Mukherjea in the judgement of K.C. Gajapati Narayan Deo v. State of Orissa
(1954) stated that “The question whether a law was colourable legislation did not depend on the
motive or bona fides of the legislature in passing the law but upon the competency of the legislature
to pass that particular law, and what the courts have to determine in such cases is whether though
the legislature has purported to act within the limits of its powers, it has in substance and reality
transgressed those powers, the transgression being veiled by what appears, on proper examination,
to be a mere pretence or disguise. The whole doctrine of colourable legislation is based upon the
maxim that you cannot do indirectly what you cannot do directly”.

Applies only within Constitutional limit

The doctrine of colourable legislation applies when the legislature exceeds its authority as
mentioned in the Constitution. However, the doctrine proves to be ineffective when the legislature
is barred by any constitutional limit. The doctrine of colourable legislation is inapplicable where
the legislature is not restricted by any limitation.

Landmark case laws

State of Bihar v. Maharajadhiraja Sir Kameshwar
Singh (1952)
State of Bihar v. Maharajadhiraja Sir Kameshwar Singh (1952) is a landmark judgement in the
doctrine of colourable legislation.

Facts of the case

After independence, many state governments passed legislation on the abolition of the zamindari
system and intermediaries between the cultivators and the state. The Bihar Land Reforms Act,
1950, the Madhya Pradesh Abolition of Proprietary Rights Act, 1950, and the Uttar Pradesh
Zamindari Abolition and Land Reforms Act, 1950 were enacted in their respective states with a
similar view. However, landlords filed a case in the High Courts of their states challenging the
legitimacy of the act. The Bihar High Court declared the Bihar Land Reforms Act to be invalid
under Article 14 of the Constitution, while the other two acts were held valid and legitimate. This
decision was challenged in the Supreme Court. During this period, the Indian Constitution added
the Ninth Schedule through the First Constitutional Amendment. The subjects under the Ninth
Schedule were provided immunity from judicial review, and the Bihar Land Reforms Act was
placed in the Schedule in the same year. Articles 31A and 31B were passed accordingly in this
regard. This amendment took away the opportunity of zamindars to attack the legislation on
infringement of Part III of the Constitution.

However, the zamindars presented their arguments based on the lack of legislative authority on
the principles of compensation for the acquisition of property for public purposes mentioned in the
concurrent list. They argued the government committed fraud on the constitution by not
complying with the required provisions and offering them less or negligible compensation in
comparison to the market price.

The Uttar Pradesh and Madhya Pradesh High Court judgements were also challenged by the
aggrieved proprietors in the Supreme Court, stating that some of the estates sought to be
acquired by the states of Uttar Pradesh and Madhya Pradesh belonged to former rulers of Indian
princely states. They argued that this property was subject to a “Covenant of Merger” between the
Government of India and rulers in order for them to merge the property in the states of Uttar
Pradesh and Madhya Pradesh. They further argued that “personal rights” of the property were
guaranteed to them under the instrument of merger and they cannot be deprived of their rights in
accordance with Article 362 of the Constitution.

Issues
1. Whether the Bihar Land Reforms Act of 1950 is a colourable legislation
2. Whether the Madhya Pradesh Abolition of Proprietary Rights Act, 1950, and the Uttar
Pradesh Zamindari Abolition and Land Reforms Act, 1950 constitutional

Observation
The Supreme Court contended that the acquisition of land by the government from the zamindars
is not in accordance with “public purposes” mentioned in entry 42 of the concurrent list. The term
public purpose is vaguely defined as anything for the benefit of the public. The Court observed
that Article 31(2) of the Constitution states that land can be acquired only for public purposes
with adequate compensation to the landlord. Even though Articles 31(4) and 31B debar people
from challenging an Act according to Article 31(2), the Court held that the judiciary will be open
to review. The Court further stated that the failure to comply with the constitutional provisions
may be overt or covert. In converting non-compliance, the legislature pretends to act within its
power while not doing so. The Supreme Court held the Act committed fraud on the constitution by
not providing adequate compensation.

With the estates of Uttar Pradesh and Madhya Pradesh, the Court observed that there was no
contravention of the rights of proprietors because the property was acquired by the government as
“private property” and nothing more.

Judgement
The Supreme Court held that the whole Act cannot be determined as invalid. The Court declared
Sections 4(b) and 23(f) of the Bihar Land Reforms Act, 1950, to be unconstitutional, while the rest
of the Act remains valid. Contentions concerning the Uttar Pradesh and Madhya Pradesh Act
were overruled by the Supreme Court

M. R. Balaji v. State of Mysore (1962)

M. R. Balaji v. State of Mysore (1962) is a landmark judgement on the reservation system in
India.

Facts of the case

The state of Mysore passed an order that included all the communities except the Brahmin
community within socially and educationally backward classes and reserved 75% of seats in all
educational seats. Later, the state passed another order which superseded all the previous orders.
Under this order, the state created two categories, i.e., backward classes and more backward
classes. 68% of seats were reserved for them, including Scheduled Caste and Scheduled Tribes, for
all engineering and medical colleges, leaving only 33% seats for unreserved students. The
petitioners argued that the order was fraud on Article 15(4) of the Constitution.

Issues
1. Whether the reservation order is within the constitutional purview of Article 15(4)
2. Whether the 68% of the reservation for the backward classes reasonable?

Observation
The Supreme Court observed that the state is entitled to use caste as the sole basis to determine
criteria for reservation in educational institutions. The Court opined that caste is irrelevant to
establishing whether a class of citizens is socially and economically backward or not. The Court
stated that the reservation made under the order is highly inconsistent and not permitted within
the provisions of Article 15(4) of the Constitution.
Judgement
The Supreme Court ruled that the order was a fraud on the powers conferred by Article 15(4) of
the Constitution. The Court also ruled that the reservation should not exceed more than 50% in
the public interest.

Animal Welfare Board of India v. Union of India (2023)

Animal Welfare Board of India v. Union of India (2023) is a recent Supreme Court judgement on
the famous traditional bull race practised in the states of Tamil Nadu, Maharashtra, and
Karnataka known as “Jallikattu” and “Bullock Cart Race”.

Facts of the Case

In 2014, the Supreme Court held customary bull sport practised in Tamil Nadu, Maharashtra,
and Karnataka to be unconstitutional and held the sport was in violation of the provisions of
the Prevention of Cruelty to Animals Act, 1960. The Court further held the Tamil Nadu
Regulation of Jallikattu Act, 2009, regulating the sport of Jallikattu, as void. However, an
exception was made, allowing training for the bulls to participate in Jallikattu. The Tamil Nadu
government passed the Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act, 2017 as
an amendment to the Prevention of Cruelty to Animals Act, 1960. The Prevention of Cruelty to
Animals (Maharashtra Amendment) Act, 2017, and the Prevention of Cruelty to Animals
(Karnataka Second Amendment) Act, 2017 by the respective states were enacted to remain in
accordance with the Supreme Court judgement. The petitioners claim that the amendment fails to
remove the defects of the Act. The petitioners argued that since the state government lacks the
authority to enact legislation through List II of the seventh schedule, they brought enactment
through List III of the seventh schedule when they do not possess the authority to pass an
amendment through List III as well.

Issues
1. Does the judiciary have the authority to invalidate legislation for failure of people to
comply with it?
2. Whether the impugned Acts introduced by the state legislatures colourable legislation?

Observation
The Supreme Court observed that the Amendment Acts brought by the respective state
legislatures substantially reduced the pain and cruelty inflicted on the animals in comparison to
the pre-amendment period. The Supreme Court further said the judiciary cannot strike down
legislation on the assumption of failure to comply with the Act. The Supreme Court stated that
the 1960 Act and the amendment deal with the prevention of cruelty to animals mentioned in List
III. As there are no other entries in any other lists that deal with this subject, the Court rejected
the petitioner’s contention that the state legislature lacks the jurisdiction to pass the Amendment.

Judgement
The Supreme Court held that the Amendment Acts introduced by the states are not a colourable
legislation but instead relate to the doctrine of pith and substance in List III of the Seventh
Schedule to the Constitution of India. The Court stated that the Amendment Acts minimises
cruelty to animals and would not come within the purview of the Prevention of Cruelty to Animals
Act, 1960.

Conclusion
The doctrine of colourable legislation aims to prevent the use of the legislative authority of the
government for unauthorised purposes. The primary objective of the division of powers is to
prevent the concentration of powers under one government authority. Whenever a government
authority tries to expand its powers by enacting new laws outside its territory, this situation may
pose a serious threat to democracy in the country. The judiciary, by applying the doctrine of
colourable legislation, reviews such laws passed by the government and strikes them down if it
finds them to be outside the jurisdiction of the legislative authority.

Que6. Explain the ‘Doctrine of Ultra Vires of

the constitution’
Ans_ I

Companies have to borrow funds from time to time for various projects in which they are engaged.

Borrowing is an indispensable part of day to day transactions of a company, and no company can

be imagined to run without borrowing from time to time. Balance sheets are released every year by

the companies, and you will hardly find any balance sheet without borrowings in the liabilities

clause of it. However, there are certain restrictions while making such borrowings. If companies go

beyond their powers to borrow then such borrowings may be deemed as ultra-vires

What is the doctrine of ultra-vires?

Ultra-vires
It is a Latin term made up of two words “ultra” which means beyond and “vires” meaning power
or authority. So we can say that anything which is beyond the authority or power is called ultra-
vires. In the context of the company, we can say that anything which is done by the company or
its directors which is beyond their legal authority or which was outside the scope of the object of
the company is ultra-vires.

Doctrine of Ultra-Vires
Memorandum of association is considered to be the constitution of the company. It sets out the
internal and external scope and area of company’s operation along with its objectives, powers,
scope. A company is authorized to do only that much which is within the scope of the powers
provided to it by the memorandum. A company can also do anything which is incidental to the
main objects provided by the memorandum. Anything which is beyond the objects authorized by
the memorandum is an ultra-vires act.

Origin of the doctrine

The doctrine of ultra-vires first time originated in the classic case of Ashbury Railway Carriage
and Iron Co. Ltd. v. Riche, (1878) L.R. 7 H.L. 653, which was decided by the House of Lords. In
this case the company and M/s. Riche entered into a contract where the company agreed to
finance construction of a railway line. Later on, directors repudiated the contract on the ground of
its being ultra-vires of the memorandum of the company. Riche filed a suit demanding damages
from the company. According to Riche, the words “general contracts” in the objects clause of the
company meant any kind of contract. Thus, according to Riche, the company had all the powers
and authority to enter and perform such kind of contracts. Later, the majority of the shareholders
of the company ratified the contract. However, directors of the company still refused to perform
the contract as according to them the act was ultra-vires and the shareholders of the company
cannot ratify any ultra-vires act.

When the matter went to the House of Lords, it was held that the contract was ultra-vires the
memorandum of the company, and, thus, null and void. Term “general contracts” was interpreted
in connection with preceding words mechanical engineers, and it was held that here this term
only meant any such contracts as related to mechanical engineers and not to include every kind of
contract. They also stated that even if every shareholder of the company would have ratified this
act, then also it had been null and void as it was ultra-vires the memorandum of the company.
Memorandum of the company cannot be amended retrospectively, and any ultra-vires act cannot
be ratified.

What is the need or purpose of the doctrine of

ultra-vires?
This doctrine assures the creditors and the shareholders of the company that the funds of the
company will be utilized only for the purpose specified in the memorandum of the company. In
this manner, investors of the company can get assured that their money will not be utilized for a
purpose which is not specified at the time of investment. If the assets of the company are
wrongfully applied, then it may result into the insolvency of the company, which in turn means
that creditors of the company will not be paid. This doctrine helps to prevent such kind of
situation. This doctrine draws a clear line beyond which directors of the company are not
authorized to act. It puts a check on the activities of the directors and prevents them from
departing from the objective of the company.

Difference between an Ultra-Vires and an Illegal

act
An ultra-vires act is entirely different from an illegal act. People often mistakenly use them as a
synonym to each other, while they are not. Anything which is beyond the objectives of the
company as specified in the memorandum of the company is ultra-vires. However, anything which
is an offense or draws civil liabilities or is prohibited by law is illegal. Anything which is ultra-
vires, may or may not be illegal, but both of such acts are void-ab-initio.

The doctrine of ultra-vires in Companies Act,

2013
Section 4 (1)(c) of the Companies Act, 2013, states that all the objects for which incorporation of
the company is proposed any other matter which is considered necessary in its furtherance should
be stated in the memorandum of the company.

Whereas Section 245 (1) (b) of the Act provides to the members and depositors a right to file a
application before the tribunal if they have reason to believe that the conduct of the affairs of the
company is conducted in a manner which is prejudicial to the interest of the company or its
members or depositors, to restrain the company from committing anything which can be
considered as a breach of the provisions of the company’s memorandum or articles.

Basic principles regarding the doctrine

1. Shareholders cannot ratify an ultra-vires transaction or act even if they wish to do so.
2. Where one party has entirely performed his part of the contract, reliance on the defense
of the ultra-vires was usually precluded in the doctrine of estoppel.
3. Where both the parties have entirely performed the contract, then it cannot be attacked
on the basis of this doctrine.
4. Any of the parties can raise the defense of ultra-vires.
5. If a contract has been partially performed but the performance was insufficient to bring
the doctrine of estoppel into the action, a suit can be brought for the recovery of the
benefits conferred.
6. If an agent of the corporation commits any default or tort within the scope of his
employment, the company cannot defend it from its consequences by saying that the act
was ultra-vires.

Exceptions to the doctrine

1. Any act which is done irregularly, but otherwise it is intra-vires the company, can be
validated by the shareholders of the company by giving their consent.
2. Any act which is outside the authority of the directors of the company but otherwise it is
intra-vires the company can be ratified by the shareholder of the company.
3. If the company acquires property in a manner which is ultra-vires of the contract, the
right of the company over such property will still be secured.
4. Any incidental or consequential effect of the ultra-vires act will not be invalid unless the
Companies Act expressly prohibits it.
 5. If any act is deemed to be within the authority of the company by the Company’s Act,
then they will not be considered as ultra-vires even if they are not expressly stated in
the memorandum.
6. Articles of association can be altered with retrospective effect to validate an act which is
ultra-vires of articles.

Types of ultra-vires acts and when can

an ultra-vires act be ratified?
Ultra-vires acts can be generally of four types:

1. Acts which are ultra-vires to the Companies Act.

2. Acts which are ultra-vires to the Memorandum of the company.
3. Acts which are ultra-vires to the Articles of the company but intra-vires the company.
4. Acts which are ultra-vires to the directors of the company but intra-vires the company.

Acts which are ultra-vires to the Companies Act

Any act or contract which is entered by the company which is ultra-vires the Companies Act, is
void-ab-initio, even if memorandum or articles of the company authorized it. Such act cannot be
ratified in any situation. Similarly, some acts are deemed to be intra-vires for the company even if
they are not mentioned in the memorandum or articles because the Companies Act authorizes
them.

Acts which are ultra-vires to the memorandum of the company

An act is called ultra-vires the memorandum of the company if, it is done beyond the powers
provided by the memorandum to the company. If a part of the act or contract is within the
authority provided by the memorandum and remaining part is beyond the authority, and both the
parts can be separated. Then only that part which is beyond the powers is considered as ultra-
vires, and the part which is within the authority is considered as intra-vires. However, if they
cannot be separated then whole contract or act will be considered as ultra-vires and hence, void.
Such acts cannot be ratified even by shareholders as they are void-ab-initio.

Acts which are ultra-vires to the Articles but intra-vires to the

memorandum
All the acts or contracts which are made or done beyond the powers provided by the articles but
are within the powers and authority given by the memorandum are called ultra-vires the articles
but intra-vires the memorandum. Such acts and contracts can be ratified by the shareholders
(even retrospectively) by making alterations in the articles to that effect.

Acts which are ultra-vires to the directors but intra-vires to the

company
All the acts or contracts which are made by the directors beyond the powers provided to them are
called acts ultra-vires the directors but intra-vires the company. The company can ratify such acts
and then they will be binding.

Development of the doctrine

Eley v The Positive Government Security Life Assurance Company,

Limited, (1875-76) L.R. 1 Ex. D. 88
It was held that the articles are not a matter between the company and the plaintiff. They may
either bind the members or mandate the directors, but they do not create any contract between
plaintiff and the company.

The Directors, &C., of the Ashbury Railway Carriage and Iron

Company (Limited) v Hector Riche, (1874-75) L.R. 7 H.L. 653.
The objects of the company as per the memorandum of association were to supply and sell some
material which is required in the construction of the railways. Here the contract was for
construction of railways which was not in the memorandum of the company and thus, was
contrary to them. As the contract was ultra-vires the memorandum, it was held that it could not
be ratified even by the assent of all the shareholders. If the sanction had been granted by passing
a resolution before entering into the contract, that would have been sufficient to make the
contract intra-vires. However, in this situation, a sanction cannot be granted with a retrospective
effect as the contract was ultra-vires the memorandum.

In Shuttleworth v Cox Brothers and Company (Maidenhead),

Limited, and Others, [1927] 2 K.B. 9
It was held that if a contract is subject to the statutory powers of alteration contained in the
articles and such alteration is made in good faith and for the benefit of the company then it will
not be considered as a breach of the contract and will be valid.

In Re New British Iron Company, [1898] 1 Ch. 324

It was held that in this particular case the directors will be ranked as ordinary creditors in
respect of their remuneration at the time of the winding-up of the company. This was stated
because generally articles are not considered as a contract between the company and the directors
but only between shareholders. However, in this particular case, the directors were employed, and
they had accepted office on the footing of the articles of association. So at the time of winding-up
of the company they were considered as the creditors.

Rayfield v Hands and Others, [1957 R. No. 603.]

Field-Davis Ltd. was a private company carrying on business as builders and contractors, The
plaintiff, Frank Leslie Rayfield, was the registered holder of 725 of those shares, and the
defendants, Gordon Wyndham Hands, Alfred William Scales and Donald Davies were at all
material times the sole directors of the company. THere was a provision in the Articles of
association of the company where it was required that if he wants to sell his shares, he will inform
the directors, who will buy them equally at a fair valuation. However, when he informed the
directors, they refused to buy them by saying that there is no such liability imposed by the articles
upon them.

The plaintiff claimed that fair value of the shares must be determined and directors must be
ordered to purchase them at a fair value. It was held that articles of the company required the
directors to buy the shares at a fair price, but the relationship between them was not as a member
and director but as a member and a member.

Effects of ultra vires Transactions – Doctrine of

Ultra Vires
1. Void ab initio: The ultra vires acts are null and void ab initio. These acts are not
binding on the company. Neither the company can sue, nor it can be sued for such
acts.[Ashbury Railway Carriage and Iron Company v. Riche ].
2. Estoppel or ratification cannot convert an ultra-vires act into an intra-vires act.
3. Injunction: when there is a possibility that company has taken or is about to
undertake an ultra-vires act, the members can restrain it from doing so by getting an
injunction from the court. [Attorney General v. Gr. Eastern Rly. Co., (1880) 5 A.C.
473].
4. Personal liability of Directors: The directors have a duty to ensure that all corporate
capital of the company is used for a legitimate purpose only. If such funds are diverted
for a purpose which is not authorized by the memorandum of the company, it will
attract a personal liability for the directors. In Jehangir R. Modi v. Shamji Ladha,
[(1866-67) 4 Bom. HCR (1855)], the Bombay High Court held, “A shareholder can
maintain an action against the directors to compel them to restore to the company the
funds of the company that have by them been employed in transactions that they have
no authority to enter into, without making the company a party to the suit”.
Criminal action can also be taken in case of a deliberate misapplication or fraud. However, there
is a small line between an act which is ultra-vires the directors and acts which are ultra-vires the
memorandum. If the company has authority to do anything as per the memorandum of the
company, then an act which is done by the directors beyond their powers can also be ratified by
the shareholders, but not otherwise.

1. If any property is purchased with the money of the company, then the company will
have full rights and authority over such property even if it is purchased in an ultra-vire
manner.
2. Relationship of a debtor and creditor is not created in an ultra-vires borrowing. [In Re.
Madras Native Permanent Fund Ltd., (1931) 1 Com Cases 256 (Mad.)].

Effects of an act which is Ultra Vires – on

borrowings
Any borrowing which is made by an act which is ultra-vires will be void-ab-initio. It will not bind
the company and company and outsiders cannot get them enforced in a court.
Members of the company have power and right to prevent the company from making such ultra-
vires borrowings by bringing injunctions against the company.

If the borrowed funds of the company are used for any ultra-vires purpose, then directors of the
company will be personally liable to make good such act. If the company acquires any property
from such funds, the company will have full right to such property.

No estoppel or ratification can convert an ultra-vires borrowings into an intra-vires borrowings, as

such acts are void from the very beginning. As no debtor and creditor relationship is created in
ultra-vires borrowings only a remedy in rem and not in personam is available.

Doctrine likely to lose sanctity

It is proposed in the Companies Amendment Bill,2016 that instead of adopting a universal
memorandum, business will be free to adopt a model memorandum of association. So now the new
companies will be enjoying the benefit of having a single object clause which states that they will
be engaged in any lawful act or business. In this situation, it would be challenging to trace out
that which act is ultra-vires and which act is intra-vires. The only case where it will be possible
will be when a company specifies the exact business instead of just a general clause.

Conclusion
No company can be imagined to run without borrowings. However, at the same time, it is
necessary to protect the interest of the creditors and investors. Any irregular and irresponsible act
may result in insolvency or winding up of the company. This may cause considerable losses to
them. So to protect the interest of the investors and the creditors, specific provisions are made in
the memorandum of the company which defines the objectives of the company.

Que7. What do you understand by

remedial statutes?
Ans_ I

One of the most substantial and the principal duty which are vested on the judiciary is the

interpretation of the statutes or law which are in force. When the courts deliver justice in a legal

dispute, they strictly abide with the boundaries framed by the legal frameworks which

encompasses certain laws, statutes, The Constitution and delegated legislations. The legal

framework of a democratic country like India includes a plethora of legislations and regulations.

The Legislature with the compliance of the procedural Parliamentary rules, formulates and drafts
certain written statutes and legislations. The courts deliver justice in a legal matter by

interpreting the underlying principles in these legislations. The written laws are substantiated by

the courts and justice is administered by the courts through the pronouncement of verdict over

the legal dispute. For the purpose of interpreting statues and to prevent any wrongful

interpretation of the laws, the court should follow certain rules to shape these laws. So, one of the

most basic rules of interpretation is the Literal rule of Interpretation of statutes where the court

interprets the wordings of the law as it is. However, there may be certain loopholes which may be

found in the law due to which it is not interpret a straight-forward understanding of the language

of the statutes. It may lead to ambiguity and absurdity if the courts interpret the natural meaning

of the language used in the statute.

Remedial statutes

Remedial statutes and statutes which have come to be enacted on demand of the permanent public

policy generally receive a liberal interpretation. On constructing a remedial statute the courts ought to

give to it ‘the widest operation which its language will permit. They have only to see that the

particular case is within the mischief to be remedied and falls within the language of the enactment.

The labour and welfare legislations should be broadly and liberally construed and while construing

them due regard to the Directive Principles of State Policy (Part IV) and to any international

convention on the subject must be given by the courts. In MC Mehta v. State of Tamil Nadu the Child

Labour (Prohibition and Regulation) Act, 1986 was construed. The Court, having regard to the

Directive Principles in Arts 39(e), 39(f), 4(i), 45 and 47 of the Constitution, the fundamental rights in

Art 24, the International convention on the right of the child, not only directed a survey of child labour

and its prohibition but also directed payment of Rs. 25,000 as contribution by the employer to the
Child Labour-Rehabilitation-cum-Welfare Fund or alternative employment to parent/guardian of the

child to ameliorate poverty and lack of funds for welfare of the child which is the main cause of child

labour.

In case of a social benefit oriented legislation like the Consumer Protection Act 1986 the provisions of

the consumer to achieve the purpose of the enactment but without doing violence to the language. If a

section of a remedial statute is capable of two constructions, that construction should be preferred

which furthers the policy of the Act and is more beneficial to those in whose intrest the Act may have

been passed. The liberal construction must flow from the language used and the rule does not permit

placing of an unnatural interpretation on the words contained in the enactment nor does it permit the

raising of any presumption that protection of widest amplitude must be deemed to have been conferred

upon those for whose benefit the legislation may have been enacted.

In case there is any exception in the beneficial legislation which curtails its operation, the Court in

case of doubt should construe it narrowly so as not to unduly expand the area or scope of exception. It

has been held that a law enacted essentially to benefit a class of persons considered to be oppressed

may be comprehensive in the sense that to some extent it benefits also those not within that class, for

example, tenants and landlords. The Control of Rent and Eviction Acts which drastically limit the

grounds on which a tenant can be evicted are essentially to benefit the tenants but they also to some

extent benefit the landlord can file a suit for eviction on the grounds mentioned in the Acts even

though the tenancy has not been terminated in accordance with the provisions of the Transfer of

Property Act.
When contracts and transactions are prohibited by statutes for the sake of protecting one class of

persons, the one from their situation and condition being liable to be oppressed and imposed upon by

the other, the parties are not in pari delicto and a person belonging to the oppressed class can apply

for redress even if he was a party to a contract or transaction prohibited by the statute.

In Noor Saba Khatoon v. Mohd Qasim, it was held that effect of a beneficial legislation is not

construed to be defeated by a subsequent legislation except through a clear provision. Therefore, the

rights of the minor children, irrespective of their religion, to get maintenance from their parents as

provided in § 127 of the Criminal Procedure Code 1973 was construed not to have been taken away in

respect of Muslims by the Muslim Women (Protection of Rights on Divorce) Act 1986. § 3(b) of the Act

enables a divorced Muslim woman to claim maintenance for the minor children up to the age of two

years only from her former husband. It has been held that the right of children to claim maintenance

under § 125 Cr PC is independent of the right of divorced mother to claim maintenance for the infant

children and the former is not affected by the Muslim Women Act 1986.

(i) Sadhoo v. Haji Lal Mohd Biri Works

In this case the Supreme Court interpreted § 31(2) (a) of the Beedi and Cigar Workers (Conditions of

Employment) Act 1966. This § 31(2) (a) provides that the employees discharged, dismissed or

retrenched may appeal to the prescribed authority. It was held that by the liberal construction of the

section there need to be no written order of termination to enable the employee to appeal and that an

employee who was terminated by stopping him to enter the place of work could appeal to the

prescribed authority.
(ii) Central Railway Workshop, Jhasi v. Vishwanath

In this case the question before the court was whether time-keepers, who prepared pay sheet of the

workshop staff, maintain leave account, dispose of settlement case and maintain records for other

statistical purposes, were workers as defined in the Factories Act 1948. § 2 defined ‘as a person

employed directly or through any agency, whether for wages or not in any manufacturing process used

for a manufacturing process or any other kind of work incidental to or connected with the

manufacturing process.’ The court gave a liberal construction to the definition of worker and held that

time-keepers were workers being employed in a kind of work incidental to or connected with the

manufacturing process.

(iii) Motor Owner’s Insurance Co Ltd v. JK Modi

In this case, the words ‘any one accident’ occurring in § 95(2) (a) of the Motor Vehicles Act 1939 was

construed. Having regard to the beneficial purpose of the Act, the words were construed to signify as

many accidents as the number of persons involved in the accident tto enable the limit of Rs. 20,000

payable by the insurance company to apply to each person injured.

(iv) Kuldip Kaur v. Surinder Singh

In this case the Supreme court dealt with § 125(3) of the Cr PC. This section provides for recovery of

maintenance granted in favour of a wife or minor child by issue of a warrant if the order for
maintenance is not complied with ‘without sufficient cause’ and enables the magistrate, if the amount

still remains unpaid to sentence the person against whom the order is made to imprisonment for a

period of one month. The court drew a distinction between ‘mode of enforcement’ and ‘mode of

satisfaction’ and held that even after a sentences of imprisonment, the person concerned remained

liable for arrests of maintenance for non-payment of which he was imprisoned and the liability for

payment could be satisfied only by payment and not by suffering the sentence.

(v) Bhagirath v. Delhi Administration In this case the Supreme Court held that the beneficent

provisions of § 428, Cr PC directing set-off of the period of pre-conviction detention against the ‘term’

of imprisonment is applicable even to cases where the sentence is imprisonment for life and that such

a sentence is also imprisonment ‘for a term’ within the section.

Penal Statutes

The principle that a statute enacting an offence or imposing a penalty is to be strictly construed is not

of universal application which must necessarily be observed in every case. It is now only of limited

application and it serves in the selection of one when two or more constructions are reasonably open.

The rule was originally evolved to mitigate the rigour of monstrous sentences for trivial offences and

although that necessity and that strictness has now almost vanished, the difference in approach made

to a penal statute as against any other statute still persists.

According to Lord Esher, MR, the settled rule of construction of penal sections is that ‘if there is a

reasonable interpretation which will avoid the penalty in any particular case we must adopt that

construction. If there are two reasonable constructions we must give the more lenient one.’

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

rights. Any provision which visits an accused with adverse consequences without affording him any

remedy to disprove an item of evidence which stands against his innocence, is inconsistent with the

philosophy enshrined in Art 21. It was held by the Supreme Court that they should so interpret such a

provision as to dilute it to make it amenable to Art 21 of the Constitution.

When words employed in a penal statute are not clear the principle ‘against double penalisation’

would be applied. Failure to comply with a statute may attract penalty. But only because a statute

attracts penalty for failure to comply with the statutory provisions, the same in all situations would

not call for a strict construction. An interpretation which strikes a balance between enforcement of law

and protection of valuable human right of accused (right of privacy) must be resorted to. § 105 of the

Evidence Act 1872 says that the burden to prove that the case of the accused falls within an exception

to a statutory offence lies on him. But the question whether the defence set up by an accused is really

a defence of an exception or a defence setting up non-existence of a fact which is an ingredient of the

offence to be proved by the prosecution depends upon the construction of the particular statute.

In applying and interpreting a penal statute, public policy is also taken into consideration. In a recent

case, the House of Lords held that consensual sadomasochistic homosexual encounters which

occasioned actual bodily harm to the victim were assaults occasioning actual bodily harm, contrary to

§ 47 of the Offences Against the Person Act 1861 and unlawful wounding contrary to § 20 0f the Act,

notwithstanding the victim’s consent to the acts inflicted on him. The following are some of the

propositions important in relation to strict construction of penal statutes:

(a) if the scope of prohibitory words cover only some class of persons or some well defined activity,

their scope cannot be extended to cover more on consideration of policy or object if the statute.

(b) prohibitory words can be widely construed only if indicated in the statute. On the other hand if

after full consideration no indication is found the benefit of construction will be given to the subject.

(c) if the prohibitory words in their own signification bear wider meaning which also fits in with the

object or policy of the statute.

(i) JK (Bombay) Ltd v. Bharti Matha Mishra

In this case, it was held that the expression ‘officer or employee of a company’ applies not only to the

existing officer or employee but also includes past officers or employees where such an officer or

employee either

· wrongfully obtains possession of any property, or

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

The expression would also include the ‘legal heirs or representatives.’ It was held by the court that the

penal statutes should not be so liberally construed with the aid of presumptions, assumptions and

implications as to rope in for the purposes of prosecution such persons against whom the prosecution
is not intended by the statute and initiation of prosecution would be violative of Art 21 of the

Constitution and against public policy.

(ii) Virtual Soft Systems Ltd v. CIT

The questions that arose before the Supreme Court in the case prior to the amendments by the

Finance Act 2002 with effect from 1 April 2003 were:What was meant by the words ‘in addition to any

tax payable’in the charging § 27(1) (c) (iii)?

· What was meant by the term ‘total income’ in Explanation 4(a) therein?

Allowing the appeals, it was held by the court that the statute crating the penalty is the first and the

last consideration and the penal provision must be construed within the term and language of the

particular statute. § 271 of the Act is a penal provision and there are well established principles for

interpretation of such a penal provision. Such a provision has to be construed strictly and narrowly

and not widely; with the object of advancing the object and intention of the legislature.

(iii) Municipal Corpn of Delhi v. Laxmi Narain Tondon

In this case, the definition of ‘sale’ in the Prevention of Food Adulteration Act 1954 was construed in

the sense having regard to the mischief intended to be remedied. It was held that the ‘sale’ in the Act

would include all commercial transactions where under an adulterated article of food was supplied for

consumption by one person to another person. Therefore, supply or offer of food to hotelier to a

customer when consolidated charge was made for residence and other amenities including food fell

within the definition.

(iv) Tolaram v. State of Bombay

In this case, § 18 of the Bombay Rents, Hotels and Lodging Houses Rates (Control) Act 1947 was

construed. This section provided that ‘if any landlord receives any fine, premium or other like sum or

deposit or any consideration other than the standard rent in respect of the grant, renewal or

continuance of a lease of any premise, such landlord shall be punished.’ It was held by the Supreme

Court that the section did not prohibit the taking of money by owner of an incomplete building in

consideration.

Conclusion

A statute may in certain aspects be a penal enactment and in certain others a remedial one. In respect

of those provisions which are sanctioned on the pain of punishment for a crime the rule of strict

construction in the limited sense may be applied. At any rate, as undue effort to construe such a

provision liberally to promote the beneficent purpose behind it may be effectively counter balanced on

consideration that a breach thereof leads to penal consequences.

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

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

Difference between Interpretation and

Construction

Interpretation Construction
1. In law, interpretation refers to 1. Construction, on the other hand,
exposing the true sense of the refers to drawing conclusions from
provisions of the statutes and to the written texts which are beyond
 understand the exact meaning of the
words used in any text.
2. Interpretation refers to the linguistic
meaning of the legal text.
3. In the case where the simple meaning
of the text is to be adopted then the
concept of interpretation is being
referred to.
the outright expression of the legal
text.
2. The purpose of construction is to
determine the legal effect of words
and the written text of the statute.
3. In the case where the literal
meaning of the legal text results in
ambiguity then the concept of
construction is adopted.

Classification of Statutes
Codified statutory law can be categorized as follows-

Codifying statutes
The purpose of this kind of statute is to give an authoritative statement of the rules of the law on a
particular subject, which is customary laws. For example- The Hindu Marriage Act, 1955 and
The Hindu Succession Act, 1956.

Consolidating statutes
This kind of statute covers and combines all law on a particular subject at one place which was
scattered and lying at different places. Here, the entire law is constituted in one place. For
example- Indian Penal Code or Code of Criminal Procedure.

Declaratory statutes
This kind of statute does an act of removing doubts, clarifying and improving the law based on the
interpretation given by the court, which might not be suitable from the point of view of the
parliament. For example- the definition of house property has been amended under the Income
Tax (Amendment) Act, 1985 through the judgement of the supreme court.

Remedial statutes
Granting of new remedies for enforcing one’s rights can be done through the remedial statutes. The
purpose of these kinds of statutes is to promote the general welfare for bringing social reforms
through the system. These statutes have liberal interpretation and thus, are not interpreted
through strict means. For example- The Maternity Benefits Act, 1961, The Workmen’s
Compensation Act, 1923 etc.

Enabling statutes
The purpose of this statute is to enlarge a particular common law. For example- Land Acquisition
Act enables the government to acquire the public property for the purpose of the public, which is
otherwise not permissible.

Disabling statutes
It is the opposite of what is provided under the enabling statute. Here the rights conferred by
common law are being cut down and are being restrained.

Penal statutes
The offences for various types of offences are provided through these statutes, and these provisions
have to be imposed strictly. For example- Indian Penal Code, 1860.

Taxing statutes
Tax is a form of revenue which is to be paid to the government. It can either be on income that an
individual earns or on any other transaction. A taxing statute thus, levies taxes on all such
transactions. There can be income tax, wealth tax, sales tax, gift tax, etc. Therefore, a tax can be
levied only when it has been specifically expressed and provided by any statute.

Explanatory statutes
The term explanatory itself indicates that this type of statute explains the law and rectifies any
omission left earlier in the enactment of the statutes. Further, ambiguities in the text are also
clarified and checked upon the previous statutes.

Amending statutes
The statutes which operate to make changes in the provisions of the enactment to change the
original law for making an improvement therein and for carrying out the provisions effectively for
which the original law was passed are referred to as amending statutes. For example- Code of
Criminal Procedure 1973 amended the code of 1898.

Repealing statutes
A repealing statute is one which terminates an earlier statute and may be done in the express or
explicit language of the statute. For example- Competition Act, 2002 repealed the MRTP Act.

Curative or repealing statutes

Through these statutes, certain acts which would otherwise be illegal are validated by curing the
illegality and enables a particular line of action.
Rules of Interpretation

Literal or Grammatical Rule

It is the first rule of interpretation. According to this rule, the words used in this text are to be given
or interpreted in their natural or ordinary meaning. After the interpretation, if the meaning is
completely clear and unambiguous then the effect shall be given to a provision of a statute
regardless of what may be the consequences.

The basic rule is that whatever the intention legislature had while making any provision it has
been expressed through words and thus, are to be interpreted according to the rules of grammar. It
is the safest rule of interpretation of statutes because the intention of the legislature is deduced
from the words and the language used.

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

Case Laws

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

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

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

Manmohan Das versus Bishan Das, AIR 1967 SC 643

The issue in the case was regarding the interpretation of section 3(1)(c) of U.P Control of Rent and
Eviction Act, 1947. In this case, a tenant was liable for evidence if he has made addition and
alternate in the building without proper authority and unauthorized perception as materially
altered the accommodation or is likely to diminish its value. The appellant stated that only the
constitution can be covered, which diminishes the value of the property and the word ‘or’ should be
read as land.

It was held that as per the rule of literal interpretation, the word ‘or’ should be given the meaning
that a prudent man understands the grounds of the event are alternative and not combined.
State of Kerala v. Mathai Verghese and others, 1987 AIR 33 SCR(1) 317, in this case a person
was caught along with the counterfeit currency “dollars” and he was charged under section 120B,
498A, 498C and 420 read with section 511 and 34 of Indian Penal Code for possessing
counterfeit currency. The accused contended before the court that a charge under section 498A and
498B of Indian Penal Code can only be levied in the case of counterfeiting of Indian currency notes
and not in the case of counterfeiting of foreign currency notes. The court held that the word currency
notes or bank note cannot be prefixed. The person was held liable to be charge-sheeted.

The Mischief Rule

Mischief Rule was originated in Heydon’s case in 1584. It is the rule of purposive construction
because the purpose of this statute is most important while applying this rule. It is known as
Heydon’s rule because it was given by Lord Poke in Heydon’s case in 1584. It is called as mischief
rule because the focus is on curing the mischief.

In the Heydon’s case, it was held that there are four things which have to be followed for true and
sure interpretation of all the statutes in general, which are as follows-

1. What was the common law before the making of an act.

2. What was the mischief for which the present statute was enacted.
3. What remedy did the Parliament sought or had resolved and appointed to cure the disease
of the commonwealth.
4. The true reason of the remedy.
The purpose of this rule is to suppress the mischief and advance the remedy.

Case laws

Smith v. Huges, 1960 WLR 830, in this case around the 1960s, the prostitutes were soliciting in
the streets of London and it was creating a huge problem in London. This was causing a great
problem in maintaining law and order. To prevent this problem, Street Offences Act, 1959 was
enacted. After the enactment of this act, the prostitutes started soliciting from windows and
balconies.

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

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

Pyare Lal v. Ram Chandra, the accused in this case, was prosecuted for selling the sweeten
supari which was sweetened with the help of an artificial sweetener. He was prosecuted under the
Food Adulteration Act. It was contended by Pyare Lal that supari is not a food item. The court held
that the dictionary meaning is not always the correct meaning, thereby, the mischief rule must be
applicable, and the interpretation which advances the remedy shall be taken into consideration.
Therefore, the court held that the word ‘food’ is consumable by mouth and orally. Thus, his
prosecution was held to be valid.
Kanwar Singh v. Delhi Administration, AIR 1965 SC 871.

Issues of the case were as follows- section 418 of Delhi Corporation Act, 1902 authorised the
corporation to round up the cattle grazing on the government land. The MCD rounded up the cattle
belonging to Kanwar Singh. The words used in the statute authorised the corporation to round up
the abandoned cattle. It was contended by Kanwar Singh that the word abandoned means the loss
of ownership and those cattle which were round up belonged to him and hence, was not abandoned.
The court held that the mischief rule had to be applied and the word abandoned must be interpreted
to mean let loose or left unattended and even the temporary loss of ownership would be
covered as abandoned.

Regional Provident Fund Commissioner v. Sri Krishna Manufacturing Company, AIR

1962 SC 1526, Issue, in this Case, was that the respondent concerned was running a factory where
four units were for manufacturing. Out of these four units one was for paddy mill, other three
consisted of flour mill, saw mill and copper sheet units. The number of employees there were more
than 50. The RPFC applied the provisions of Employees Provident Fund Act, 1952 thereby directing
the factory to give the benefits to the employees.

The person concerned segregated the entire factory into four separate units wherein the number of
employees had fallen below 50, and he argued that the provisions were not applicable to him
because the number is more than 50 in each unit. It was held by the court that the mischief rule
has to be applied and all the four units must be taken to be one industry, and therefore, the
applicability of PFA was upheld.

The Golden Rule

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

The literal rule follows the concept of interpreting the natural meaning of the words used in the
statute. But if interpreting natural meaning leads to any sought of repugnance, absurdity or
hardship, then the court must modify the meaning to the extent of injustice or absurdity caused
and no further to prevent the consequence.

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

Five part analysis of the golden rule of interpretation

Whenever there is a shadow of scepticism casted on the grammatical construction of any law then
in such circumstances, the golden rule of interpretation can be applied on the law in order to
apply it to the facts in a legal dispute. The external manifestation of the underlying law which is
interpreted from reading between the lines projects the true intent of the legislature for which the
golden rule is used. By taking into consideration the consequences of the judgement, the judges
have the discretion to interpret the law in a rational manner. The analysis of Golden Rule can be
divided into five categories as discussed below:

 WARBURTON’S CASE
Explaining the principle underlying the Golden rule, Justice Burton in the case of Warburton v.
Loveland observed that in the very first instance of application of law the grammatical sense of
the wordings of law must be paid heed. But if there is involvement of any absurdity,
inconsistency, or is against the declared purpose of the statute then in such circumstance, the
grammatical sense of the law can be modified or interpreted so far as there is no injustice caused
to the parties of the case. Even though the elementary rule of interpreting the words as it is in
their grammatical sense has been upheld by the courts in numerous cases like Madan Lal v.
Changdeo Sugar Mills, the courts should still be open to various interpretations of the law so that
no injustice is caused. This well-known rule was strictly formulated by Parke B. in the case
of Becke v. Smith wherein it was held that, the wordings of the law which are unambiguous and
plain nature should be construed in their regular sense even though, if in their assessment it is
absurd or promotes injustice. We assume the function of the legislature when we deviate from the
ordinary meaning of the statute due to which from the adherence to its literal meaning we
prevent the manifestation of injustice.

 LORD WENSLEYDALE’S GOLDEN RULE

The term golden rule was coined by Lord Wensleydale which was later adopted in the case of Gray
v. Pearson due to which it is primarily called the Lord Wensleydale’s Golden Rule of
Interpretation. Lord Wensleydale expressing this opinion of the rule, mentioned that he is deeply
awestruck with the perception of the rule which is being universally accepted by the courts all
over the world in order to understand all the written laws, construing wills and other written
frameworks. He also mentioned that the ordinary derivative and the grammatical construction of
the law should be abided by in the first instance unless there is any absurdity or repugnancy due
to which it is necessary to modify the ordinary understanding of the words. In the case
of Matteson v. Hart the golden rule was elaborately discussed by Jervis CJ where he relied on the
Golden Rule of Construction in order to understand the words used by the Legislature in the Acts
and also to prevent any absurdity and injustice which may stem from the intention of the statute.

 HEYDON’S RULE OF MISCHIEF

In the Heydon’s Rule of Mischief, he elaborated that only in such circumstances where the
intention of the legislature appears to be unjust, only in such cases the intervention of the office of
judges in interpreting the law is reasonable. Slightly deviating from what Lord Wensleydale has
opined, instead of viewing the legislative intent as a whole and construe it all-together, the
reasons for the enactment of the laws in retrospect should be taken into consideration so that we
can derive the object it plans to subserve and the evil it plans to end. In the case of Newspaper
Ltd. v. State Industrial Tribunal, the Latin maxim “ex visceribus actus” was cited which meant
that while determining the intention of the legislation, detached sections of parts of the Act
should not be taken, instead the intention of the act as a whole which construes the constituent
parts should be considered. This principle was reaffirmed in the case of Inland Revenue
Commissioners. V. Herbert where Lord Haldane interpreted a legislation which was newly
enacted and he adjudged that “Where words of general understanding are used, the common
understanding of men is one main clue to the meaning of legislature.” But the Golden Rule of
Interpretation laid by Lord Wensleydale has been a principle accepted worldwide.

 LITERAL GOLDEN MISCHIEF

As described by Lord Granworth LC, this is a “Cardinal Rule ” which is a rule based on common
sense which is as strong as can be”. In the English cases, there are three basic rules as elucidated
by GW Paton. Those are:
 1. Whatever the result, if the meaning of the wordings of law is plain then they should be
applied as per the Literal Rule.
2. Unless there is any ambiguity or absurdity in the wordings of the law, the ordinary
sense of the law should be resorted to as per the Golden Rule.
3. The general policy or intention of the statute must be considered and eliminate the evil
which was directed as per the Mischief Rule.

 LATTER PART OF THE RULE

There is a lot of care which must be taken with regards to the later part of the Golden Rule and in
the case of Christopher v. Lotinga, every word of the Golden Rule was subscribed to by Justice
Willes. In the case of Woodward v. Watts, Justice Crompton expressed his doubts regarding this
rule and opined that the Legislature must have enacted the legislation with a particular intent
which may be destroyed if the courts reinterpret it due to some absurdity which defeats the whole
purpose of the enactment. To understand the applicability of the three methods of judicial
approach which is the literal rule, the golden rule and the mischief that the statute is designed for
in order to prevent it, the case of Vacher v. London Society of Compositors can be referred to. In
this case, the validity of Section 4(1) of the Trade Disputes Act, 1906 was in question as to
whether any torturous acts which are committed by the trade unions are included under the
protection or is it only such are which was torturous in nature in furtherance of any trade dispute.
Deciding on the former view, the House of Lords relied on the aforementioned three judicial
approaches in which Lord Macnaughten adopted the golden rule of interpretation which is derived
from the case of Grey v. Pearson, while Lord Atkinson espoused the literal approach which is
derived from the case of Cooke v. Charles A Vageler and lastly, the history of the enactment of the
stature and the application the mischief method has been relied upon by Lord Moulton.

Applicability and usage of golden rule of interpretation

If there is a choice between two interpretations, then the interpretation which reduces the futility
or which is narrower in nature fails to incorporate the purpose of the legislation due to which such
a construction must be avoided as discussed in the case of Nokes v. Doncaster Amalgamated
Collieries Ltd by Viscount Simon L.C. Instead, we should admit the bolder form of the
construction which is the intention of the Parliament to enact the legislation only for the purpose
of making the result effective. The transfer of an undertaking which includes, property, duties,
liabilities and rights from the old company to a new company is dealt with under Section 154 of
the Companies Act, 1929. In the case of Luke v. R.R.C. an issue was raised with regards to the
transfer of contract of service existing between the former company and the individual. The House
of Lords adjudged that the notice of amalgamation should be provided to the individual. The
golden rule of interpretation has been used in this case where if the prima facie meaning of the
words would be taken into consideration, then no consent would be required of the employee
during amalgamation, but this would lead to injustice. But in the present case the court deviated
from the wordings of the law and decided that it is the duty of the transferor company to inform
the workers about the amalgamation.

A restricted Construction was adopted by the legislature while drafting the Central Services
(Classification, Appeal And Control) Rules, 1956 specifically Rule 11(VI) due to which it was
interpreted by the court by using the Golden Rule in the case of Nyadar Singh v. Union of India.
This provision imposes a penalty if there is any reduction in the grade post or service or the pay
scale of the employee. It was adjudged by the Supreme Court that if any person is appointed to a
bigger post or pay grade, then he cannot be abridged to a lower pay grade or post due to which
this provision acquired a wider construction as interpreted by the Court. As per Maxwell, the
applicability of Golden Rule is significant in the area which is dedicated to the construction of
legislations to adjudge consequences and also the construction of certain provisions which
eliminate injustice and inconvenience or also evasion.

To explain the applicability of the Golden rule, the case of Free Lanka Insurance Co. Ltd. v.
Panasinghe can be referred where it was held that if a prisoner escapes from prison due to fire
accident, then he did not commit a felony under the Statute as this act committed by him was not
with the intention of getting freedom but it is to save his life. Similarly, if there is any act which is
done on certain justifiable grounds then that act would not qualify as criminal in nature.

The Supreme Court and High Court in India have applied the Golden Construction of Statutes in
various judgements as previously discussed. But there is a certain confusion which is observed
between the Golden rule and the Literal Rule as even though initially the literal meaning of the
statute is taken into consideration if it is plain and logical but if there is any trace of absurdity or
uncertainty then the interpretation of the court would pay a significant role. But if there is a
possibility that there is more than one meaning of the wording in the statute, then any addition,
substitution or rejection should be done by the court modifying the language so that the intention
of the legislature is expounded. Some of the landmark Indian cases in which the Golden Rule was
used was with respect to the interpretation of the provisions like “Section 23 of the
Representation of People’s Act, 1951” and Section 3A of the U.P. Sales Tax Act, 1948 which were
dealt with in Narendra Kiadivalapa v. Manikrao Patil and Annapurna Biscuit Manufacturing Co.
v. Commissioner of Sales Tax, U P respectively. Therefore, the applicability of the Golden Rule of
Interpretation in the Indian cases and the foreign cases has a narrow and wide approach which
needs to be observed by the courts in their working.

The judicial criticism faced on the application of golden

rule
The golden rule of interpretation should be adopted with caution because of certain reasons which
were discussed by the Court in the case of Lord Moulten in Vacher & Sons v. London Society of
Compositor. There is a possibility that this rule could develop into a conventional jurisdictive
critique of the legislature’s acts’ legality. The statutes must be interpreted on the basis of the
wordings of the law, and while the respective resultants of two competing interpretations may
occasionally direct us in our options, we can only do so if we are in a position to convince ourselves
that the words could not have been used as per the sense of the suggested arguments by looking
at the Act as a whole and comparing it to the prevailing law of the land at the time of the
enactment of the legislation. The legal rights or laws which are formulated for the advantage of
the community at large may come in struggle with the individual interest of the public due to
which it may cause injustice in the form of repugnancy or absurdity. The Apex Court in the case
of State Bank of India v. Shri N. Sundara Money has judged that the duty of the courts of justice
is to take care of the rights of the public at large instead of individual rights. If the words of the
statute are absurd in their nature, then they should even come under the term of repugnancy in
order to use the Golden Rule due to which the scope of the term is wide.

The Golden Rule is considered to be an old law which has been used since the 16th century, when
British law was the fundamental basis for law and parliamentary sovereignty had not yet been
constituted. It is contended that it gives the unelected judiciary too much jurisdiction and
responsibility, which is undemocratic in nature. The Golden Rule also clearly violates the law of
the land by constructing a crime after the occurrence of the events, as observed in in Smith v
Hughes and Elliot v Grey. It encroaches on the separation of powers by assigning judges a
legislative role, and judges can bring their own opinions, conscience, and preconceptions to a
matter, as seen in the case of DPP v Bull and Smith v Hughes.
Case laws
Tirath Singh v. Bachittar Singh, AIR 1955 SC 850

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

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

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

State of Madhya Pradesh v. Azad Bharat Financial Company, AIR 1967 SC 276, Issues of
the case are as follows.

A transporting company was carrying a parcel of apples was challenged and charge-sheeted. The
truck of the transporting company was impounded as the parcel contained opium along with the
apples. At the same time, the invoice shown for the transport consisted of apples only.

Section 11 of the opium act 1878, all the vehicles which transport the contraband articles shall
be impounded and articles shall be confiscated. It was confiscated by the transport company that
they were unaware of the fact that opium was loaded along with the apples in the truck.

The court held that although the words contained in section 11 of the said act provided that the
vehicle shall be confiscated but by applying the literal rule of interpretation for this provision it is
leading to injustice and inequity and therefore, this interpretation shall be avoided. The words
‘shall be confiscated’ should be interpreted as ‘may be confiscated’.

State of Punjab v. Quiser Jehan Begum, AIR 1963 SC 1604, a period of limitation was
prescribed for, under section 18 of land acquisition act, 1844, that an appeal shall be filed for the
announcement of the award within 6 months of the announcement of the compensation. Award was
passed in the name of Quiser Jehan. It was intimated to her after the period of six months about
this by her counsel. The appeal was filed beyond the period of six months. The appeal was rejected
by the lower courts.

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

Harmonious Construction
According to this rule of interpretation, when two or more provisions of the same statute are
repugnant to each other, then in such a situation the court, if possible, will try to construe the
provisions in such a manner as to give effect to both the provisions by maintaining harmony
between the two. The question that the two provisions of the same statute are overlapping or
mutually exclusive may be difficult to determine.

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

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

Cases –

Ishwari Khaitan Sugar Mills v. State of Uttar Pradesh, in this case, the State Government
proposed to acquire sugar industries under U.P Sugar Undertakings (Acquisition) Act, 1971. This
was challenged on the ground that these sugar industries were declared to be a controlled one by
the union under Industries (Development and Regulation) Act, 1951. And accordingly, the
state did not have the power of acquisition of requisition of property which was under the control of
the union. The Supreme Court held that the power of acquisition was not occupied by Industries
(Development and Regulation) Act, 1951. The state had a separate power under Entry 42
List III.

M.S.M Sharma v. Krishna Sinha, AIR 1959 SC 395.

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

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

Conclusion
Every nation has its own judicial system, the purpose of which to grant justice to all. The court aims
to interpret the law in such a manner that every citizen is ensured justice to all. To ensure justice
to all the concept of canons of interpretation was expounded. These are the rules which are evolved
for determining the real intention of the legislature.

It is not necessary that the words used in a statute are always clear, explicit and unambiguous and
thus, in such cases it is very essential for courts to determine a clear and explicit meaning of the
words or phrases used by the legislature and at the same time remove all the doubts if any. Hence,
all the rules mentioned in the article are im
Que8.Examine fully the value of intrinsic
aids in the construction of statutes

Ans_ Short title

The short title of the Act is only its name and is given solely for the purpose of facility of reference.

It is merely a name given for identification of the Act and not for description and generally ends
with the year of passing of the Act, such as the Indian Contract Act, 1872, the Indian Penal Code,
1860, the Indian Evidence Act, 1872.

Even though it is a part of the statute, it has no role to play while interpreting a provision of the
Act. Neither can it extend nor can it delimit the clear meaning of a particular provision.

Long title
A statute is headed by a long title whose purpose is to give a general description about the object of
the act. Normally, it begins with the words An Act to…

For instance, the long title of the Code of Criminal Procedure, 1973 says: An Act to consolidate and
amend the law relating to criminal procedure, and that of the Prevention of Corruption Act, 1988
says: ‘An Act to consolidate and amend the law relating to the prevention of corruption and matters
connected therewith’.

In the olden days the long title was not considered a part of the statute and was, therefore, not
considered an aid while interpreting it.

There has been a change in the thinking of courts in recent times and there are numerous occasions
when help has been taken from the long title to interpret certain provisions of the statute but only
to the extent of removing confusions and ambiguities. If the words in a statute are unambiguous,
no help is derived from the long title.

In Poppatlal Shah v. State of Madras, AIR 1953 SC 274- the title of the Madras General Sales
Tax, 1939, was utilised to indicate that the object of the Act is to impose taxes on sales that take
place within the province.

In the case of Amarendra Kumar Mohapatra v. State of Orissa AIR 2014 SC 1716- the Court
has held that the title of a statute determines the general scope of the legislation, but the true
nature of any such enactment has always to be determined not on the basis of the label given to it
but on the basis of its substance.

In Manoharlal v. State of Punjab AIR 1961 SC 418- it was held that no doubt the long title of
the Act extracted by the appellant’s counsel indicates the main purposes of the enactment but it
cannot control the express operative provisions of the Act.
In Fisher v. Raven 1964 AC 210 (HL)

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

Limitations of Title as Internal Aid to Construction

 Title has no role to play where the words employed in the language are plain and precise
and bear only one meaning.
 Title can be called in aid only when there is an ambiguity in the language giving rise to
alternative construction.
 Title cannot prevail over the clear meaning of an enactment.
 Title cannot be used to narrow down or restrict the plain meaning of the language of the
statute.

Preamble
The Preamble to the Act contains the aims and objectives sought to be achieved, and is therefore,
part of the Act. It is a key to unlock the mind of the law makers.

Therefore, in case of any ambiguity or uncertainty, the preamble can be used by the courts to
interpret any provision of that statute. But there is a caution here. The apex court has held
in Maharishi Mahesh Yogi Vedic Vishwavidyalaya v. State of M.P. AIR (2013) 15 SCC
677– the court cannot have resort to preamble when the language of the statute is clear and
unambiguous.

Similarly it has been held that help from preamble could not be taken to distort clear intention of
the legislature– Burrakar Coal Company v. Union of India AIR 1961 SC 954.

In re Kerala Education Bill, 1957, it was observed that the policy and purpose of the Act can be
legitimately derived from its preamble.

In Global Energy Ltd. v. Central Electricity Regulatory Commission– it was held that the
object of legislation should be read in the context of the Preamble.

In Maharashtra Land Development Corporation v. State of Maharashtra, it was held that

Preamble of the Act is a guiding Light to its interpretation.

Another important example is found in Kesavananda Bharati v. State of Kerala, AIR 1973 SC
1461– wherein the apex court strongly relied on the Preamble to the Constitution of India in
reaching a conclusion that the power of the Parliament to amend the constitution under Article 368
was not unlimited and did not enable the Parliament to alter the Basic Structure of the
Constitution.
In A.C. Sharma v. Delhi Administration AIR 1973 SC 913

 In this case, the appellant challenged his conviction under Section 5 of the Prevention of
Corruption Act, 1947.
 His main ground was that after the establishment of the Delhi Special Police
Establishment, the anti-corruption department of the Delhi Police has ceased to have
power of investigating bribery cases because the preamble of the Delhi Special Police
Establishment Act, 1946 pointed out to this effect.
 The court, however, held that no preamble can interfere with clear and unambiguous
words of a statue.
 Section 3 of the Delhi Special Police Establishment, 1946 empowered the Delhi Special
Police also to investigate such cases.
In Rashtriya Mill Mazdoor Sangh v. NTC (South Maharashtra), the Supreme Court while
interpreting certain provisions of the Textile Undertakings (Take over of Management) Act, 1983
held that when the language of the Act is clear, preamble cannot be invoked to curtail or restrict
the scope of an enactment.

Limitations of Preamble as Internal Aid to Construction

 Preamble can be resorted to only when the language of a provision is reasonably capable
of alternative construction.
 Preamble cannot either restrict or extend the meaning and scope of the words used in the
enacting part.
 In case of conflict between Preamble and a section, the preamble would succumb and
section shall prevail.
 Preamble cannot be regarded as source of any substantive power or of any prohibition or
limitation.

Marginal Notes
Marginal notes are those notes which are inserted at the side of the sections in the Act and express
the effect of the sections. These are also known as side notes.

In the olden times help used to be taken sometimes from the marginal notes when the clear meaning
of enactment was in doubt. But the modern view of the courts is that marginal notes should have
no role to play while interpreting a statute.

The basis of this view is that the marginal notes are not parts of a statute because they are not
inserted by the legislators nor are they printed in margin under the instructions or authority of the
legislature. These notes are inserted by the drafters and many times they may be inaccurate too.

However, there may be exceptional circumstances where marginal notes are inserted by the
legislatures and, therefore, while interpreting such an enactment help can be taken from such
marginal notes. The Constitution of India is such a case. The marginal notes were inserted by the
Constituent Assembly and, therefore, while interpreting the Indian Constitution, it is always
permissible to seek guidance and help from the marginal notes.
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 Tara Prasad Singh v. Union of India, it was held that marginal notes to a section of the
statute cannot take away the effect of the provisions.

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 S.P. Gupta v. President of India

 The Supreme Court held that if the relevant provisions in the body of a statute firmly
point towards a construction which would conflict with the marginal note, the marginal
note has to yield.
 If there is any ambiguity in the meaning of the provisions in the body of the statute, the
marginal note may be looked into as an aid to construction.

Limitations of Marginal Notes as Internal Aid to

Construction
 Marginal notes are very rarely used for interpretation as they are not considered to be a
good aid to construction.
 Only those marginal notes can be used for construing a provision which have been
inserted with assent of the legislature.
 Marginal notes can be called in aid only when language suffers from ambiguity and more
than one construction is possible.
 Marginal notes cannot frustrate the effect of a clear provision.

Headings
In all modern statutes, generally headings are attached to almost each section, just preceding the
provisions. For example, the heading of Section 437 of the Code of Criminal Procedure, 1973 is
“When bail may be taken in case of non- bailable offence”.

Headings are not passed by the Legislature but they are subsequently inserted after the Bill has
become law.

Headings are of two kinds- one which are prefixed to a section and the other which are prefixed to
a group or set of sections. These headings have been treated by courts as preambles to those sections
or set of sections.
Naturally, the rules applicable to the preamble are followed in case of headings also while
interpreting an enactment. Therefore, if the plain meaning of enactment is clear, help from
headings cannot be taken by the courts.

However, if more than one conclusion are possible while interpreting a particular provision, the
courts may seek guidance from the headings to arrive at the true meaning.

A heading to one set of sections cannot act as an aid to interpret another set of sections– Shelly v.
London County Council, 1949 AC 56

But chapter heading can be used to interpret ambiguous provisions– Bullmer v. I.R.C.

In Sarah Mathew v. Institute of Cardio Vascular Diseases, it was held that sectional headings
have a limited role to play in the construction of statutes. The heading of Ch. XXXVI, Cr.P.C. is not
an indicator that the date of taking cognizance is the date on which limitation period commences.

In Novartis Ag. v. Union of India, the sectional headings were relied on while interpreting
Section 5, 3(d), 2(1) (j) and (ja) and 83 of the Patents Act, 1970.

In Union of India v. ABN Amro Bank

 It was held that the heading of a section can be regarded as key to interpretation of the
operative portion of said section.
 If there is no ambiguity in the language of the provision or if it is plain and clear, then
heading used in said section strengthens that meaning.
In N.C. Dhoundial v. Union of India, it was held that “Heading” can be relied upon to clear the
doubt or ambiguity in the interpretation of the provision and to discern the legislative intent.

Click Above

Limitations of Headings as Internal Aid to Construction

 Headings can neither cut down nor extend the plain meaning and scope of the words used
in the enacting part.
 Headings cannot control the clear and plain meaning of the words of an enactment.

Illustrations
Illustrations are sometimes appended to a section of a statute with a view to illustrate the provision
of law explained therein. A very large number of Indian Acts have illustrations appended to various
sections.

They being the show of mind of the legislature are a good guide to find out the intention of the
farmers. But an enactment otherwise clear cannot be given an extended or a restricted meaning on
the basis of illustrations appended therein.
The Supreme Court in Mahesh Chand Sharma v. Raj Kumari Sharma observed that
illustration is a part of the section and it helps to elucidate the principle of the section.

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

In Mudliyar Chatterjee v. International Film Co., it was observed that in construing a section,
an illustration cannot be ignored or brushed aside.

In Mohommed Sydeol Ariffin v. Yeah Ooi Gark, it was held that the illustrations are of
relevance and value in the construction of the text of the section, although they donot form part of
the section. Therefore, they should not be readily rejected as repugnant to the sections.

Exceptions and Saving Clauses

Exceptions are generally added to an enactment with the purpose of exempting something which
would otherwise fall within the ambit of the main provision.

For instance, there are ten exceptions attached to section 499, IPC which defines ‘Defamation’.
These ten exceptions are the cases which do not amount to defamation.

Similarly there are five exceptions attached to section 300 of the Indian Penal Code which defines
‘murder’. These five exceptions are the cases which are not murders but culpable homicide not
amounting to murder.

An exception affirms that the things not exempted are covered under the main provision.

In case a repugnancy between an operative part and an exception, the operative part must be relied
on.

Some decisions have, however, been given on the principle that an exception, being the latter will
of the legislature, must prevail over the substantive portion of the enactment.

In Director of Secondary Education v. Pushpendra Kumar, the Supreme Court held that a
provision in the nature of an exception cannot be so interpreted as to subserve the main enactment
and thereby nullify, the right conferred by the main enactment.

In Collector of Customs v. M/s. Modi Rubber Limited, the Supreme Court held that whenever
there is a provision in the nature of an exception to the principal clause thereof; it must be construed
with regard to that principal clause.

Saving clauses are generally appended in cases of repeal and re-enactment of a statute.

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

In Shah Bhojraj Kuverji Oil Mills v. Subhash Chandra Yograj Sinha, the Supreme Court did
not allow the use of a saving clause, which was enacted like a proviso, to determine whether a
section in an Act was retrospective in operation.

In Agricultural and Processed Food Products v. Union of India, the Supreme Court while
interpreting the saving clause in the Export Control Order, 1988 held that the clause only saved
the rights which were in existence before the order was issued and it did not confer any new rights
which were not in existence at that time.

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

Sometimes, a schedule may contain some subjects in the form of a list as is the case with the
Constitution of India to enable the Union and the states to legislate in their respective fields.

Schedules are parts of the Statute itself and may be looked into by the courts for the purpose of
interpreting the main body of the statute.

Similarly, while interpreting the schedules help may always be taken from the main body of the
Act to find out the true spirit of the Act.

Sometimes, a schedule may contain transitory provisions also to enable an Act to remain in
existence till the main provisions of the Act begin to operate, such as the Ninth Schedule of the
Government of India Act, 1935.

In M/s. Aphali Pharmaceuticals Limited v. State of Maharashtra, the Supreme Court held
that in case of a clash between the schedule and the main body of an Act, the main body prevails
and the schedule has to be rejected.

In Jagdish Prasad v. State of Rajasthan and others, the Supreme Court ruled that the purpose
of a schedule is to advance the object of the main provision and deletion of schedule cannot wipe out
provisions of an Act in effect and spirit.

Punctuation
In ancient times, statutes were passed without punctuation and naturally, therefore, the courts
were not concerned with looking at punctuation.

But in modern times statutes contain punctuation. Therefore, whenever a matter comes before the
courts for interpretation, the courts first look at the provision as they are punctuated and if they
feel that there is no ambiguity while interpreting the punctuated provision, they shall so interpret
it.
However, while interpreting the provision in the punctuated form if the court feels repugnancy or
ambiguity, the court shall read the whole provision without any punctuation and if the meaning is
clear will so interpret it without attaching any importance whatsoever to the punctuation.

In Aswini Kumar v. Arabinda Bose, the Supreme Court held that a punctuation cannot be
regarded as a controlling element and cannot be allowed to control the plain meaning of a text.

Therefore, in Shambhu Nath Sarkar v. State of West Bengal, the Supreme court held that the
word ‘which’ used twice in Article 22(7) of the Constitution, followed by a comma after each, was to
be read conjunctively because the context so required.

In Mohammad Shabbir v. State of Maharashtra

 Interpretation of Section 27 of the Drugs and Cosmetics Act, 1940 was in question.
 This provision says that whoever ‘manufactures for sale, sells, stocks or exhibits for sale
or distributes’ a drug without licence would be liable to punishment.
 The Supreme Court held that mere stocking of a drug is not an offence and an offence is
made out only when stocking is for sale.
 There is no comma after the word ‘stocks’ which means that the words ‘stocks or exhibits’
are both qualified by the words ‘for sale’ used thereafter.
In Dadaji v. Sukhdeobabu, the Supreme Court held that the punctuation marks by themselves
do not control the meaning of a statute where its meaning is otherwise obvious.

In the English case of I.R.C. v. Hinchy, it was held that it is very doubtful if punctuation marks
can be looked at for the purposes of construction.

In Bihar SEE v. Pulak Enterprises, it was held that punctuation mark (comma) is a minor
element in the interpretation of statute, especially in case of subordinate legislation.

In Director of Public Prosecution v. Schildkamp, LORD REID agreed that punctuation can
be of some assistance in construction.

Limitations of Punctuation Marks as Internal Aid to

Construction
 Some jurists have opined that punctuation marks are of no use as internal aids to
construction and it is an error to rely on punctuation marks in construing the Acts of
Legislature.
 Presence of comma or absence of comma must be disregarded if it is contrary to plain
intention of the statute.

Explanations
Explanations are inserted with the purpose of explaining the meaning of a particular provision and
to remove doubts which might creep up if the explanation had not been inserted.
It does not expand the meaning of the provision to which it is added but only ties to remove
confusion, if any, in the understanding of the true meaning of the enactment.

A large number of Indian Acts have explanations attached to various sections. For instance, Section
108 of the Indian Penal Code which defines the word ‘abettor’ has five explanations attached to it.
Sometimes, explanations are inserted not at the time of enactment of a statute but at a later stage.
For instance, the two explanations to Section 405 of the Indian Penal Code, which defines the crime
of ‘Criminal breach of trust’, were inserted in 1973 and 1975 respectively.

There may be a case where in spite of many clauses in a section only one explanation is attached to
the section as is the case with Section 20 of the Code of Civil Procedure, 1908. In such a case it must
be seen as to which clause the explanation is connected with– Patel Roadways limited v. Prasad
Trading Company.

In Bengal Immunity Company v. State of Bihar, the Supreme Court has observed that an
explanation is a part of the section to which it is appended and the whole lot should be read together
to know the true meaning of the provision.

In Bihta Co-operative Development Cane Marketing Union v. State of Bihar, the Supreme
Court said that in case of a conflict between the main provision and the explanation attached to it,
the general duty of the court is to try to harmonise the two.

In S. Sundaram v. V.R. Pattabhiraman, the Supreme Court observed that it is now well settled
that an explanation added to a statutory provision is not a substantive provision in any sense of the
term but as the plain meaning of the word itself shows it is merely meant to explain or clarify
certain ambiguities which may have crept in the statutory provision.

The object of an explanation to a statutory provision is:

 to explain the meaning and intendment of the Act itself;

 where there is any obscurity or vagueness in the main enactment, to clarify the same so
as to make it consistent with the dominant object which it seems to subserve;
 to provide additional support to the dominant object of the Act in order to make it
meaningful and purposeful.
An explanation cannot in any way interfere with or change the enactment of any part thereof but
where some gap is left which is relevant for the purpose of the explanation, in order to suppress the
mischief and advance the object of the Act it can help or assist the court in interpreting the true
purport and intendment of the enactment, and it cannot, however, take away a statutory right with
which any person under a statute has been clothed or set at naught the working of the Act by
becoming an hindrance in the interpretation of the same.

In M.K. Salpekar v. Sunil Kumar Shamsunder Chaudhari, the Supreme Court observed that
where a provision is related to two kinds of accommodation—residential and non-residential, and
the explanation attached to it refers to only residential accommodation, it cannot control non-
residential accommodation and, therefore, cannot be looked into in matters connected with the
latter.
Limitation of Explanation as Internal Aid to
Construction
 Explanation cannot have the effect of modifying the language of section.
 Explanation cannot control the plain meaning of words of the section.

Definition or Interpretation Clauses

Definition or interpretation clauses are generally included in a statute with the purpose of
extending the natural meaning of some words as per the definition given or to interpret such words,
the meanings of which are not clear, by assigning them the meaning given in the definition clause.

Generally, the meaning given to a particular word in the interpretation clause will be given to that
word wherever it is used in that statute.

The only exception to this rule is that if the court feels that in the context of a particular provision
the definition clause, if applied will result in an absurdity, the court will not apply the definition
clause while interpreting that provision.

Similarly, the definition clause of one Act cannot be used to explain the same word used in another
statute. However, if both the statutes are in pari materia and the word has been defined in one Act,
the same meaning may be assigned to the word in the other Act also.

Whenever the words means or means and includes are used in the definition clause, they afford an
exhaustive explanation of the word in the statute.

The language in which both words ‘includes and shall not include’ are used, such definitions are
inclusive and exclusive.

The word includes is generally used in the definition clause to enlarge the ordinary and natural
meaning of that particular word.

In M/s. Hamdard (Wakf) Laboratories v. Deputy Labour Commissioner, the Supreme Court
observed that when an interpretation clause uses the word ‘includes’, it is prima facie extensive.

When it uses the words ‘means and includes’, it will afford an exhaustive explanation to the
meaning which for the purposes of the Act must invariably be attached to the word or expression.

In Ramanlal Bhailal Patel v. State of Gujarat, the Supreme Court observed that the use of the
word ‘includes’ indicates an intention to enlarge the meaning of the word used in the statute.

The use of the word denotes in the interpretation clause shows that the expressions denoted therein
are covered within the ambit of that particular word.

The expression deemed to be in the interpretation clause creates a fiction. The use of the phrase
that is to say in the definition clause is illustrative of the meaning and not restrictive.
In State of Bombay v. Hospital Mazdoor Sabha, the JJ Group of Hospitals was held by the
Supreme Court an industry within the meaning of the Industrial Disputes Act, 1947. The court
observed that Section 2 (J) of the Act of 1947 is an inclusive definition clause and is, therefore, liable
to be interpreted in an extended way and not in a restrictive way.

In State of Madhya Pradesh v. Saith and Skelton Private Limited, the Supreme Court, while
interpreting the word ‘Court’ in Section 14 (2) of the Arbitration Act, 1940, held that its meaning
given in Section 2 (c) of the Act that it means a Court which would entertain a suit on the subject-
matter, cannot be accepted in the light of the context, and that ‘Court’ in the present instance must
mean a court which appoints the arbitrator.

The Supreme Court in Jagir Singh v. State of Bihar

 Was seized of the question of interpreting the word ‘owner’ in the Bihar Taxation on
Passengers and Goods (Carried by Public Service Motor Vehicles) Act, 1961 which defined
it as the owner and includes bailee of a public carrier vehicle or any manager acting on
the owners behalf.
The Court held that the use of the word includes gives a wider concept to the word and so
it means the actual owner as well as the others included in the definition.
In Commissioner of Income-Tax, Madras, v. G.R. Karthikeyan

 The question was whether prize money received by a participant in a motor rally was
‘income’ within the premise of Section 2 (24) of the Income-tax Act, 1961.
 The Supreme Court held that several clauses in Section 2 (24) were not exhaustive in
nature and, therefore, money received under any new head not covered under the
provision is income and so subject to income-tax under the law.
In Lucknow Development Authority v. M.K. Gupta, the Supreme Court ruled that:

 ‘Housing construction’ comes within the meaning of ‘service’ as defined in section 2(o) of
the Consumer Protection Act, 1986, even though the provision gives an inclusive
definition of the word ‘service.
 In the aftermath of the case, the Parliament amended the section and expressly included
‘housing construction’ in ‘service’.
In Delhi Judicial Service Association v. State of Gujarat

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

In some sections of a statute, after the main provision is spelled out, a clause is added, with the
opening words “provided that…”.

The part of the section commencing with the words “Provided that…” is called Proviso.

A proviso is a clause which is added to the statute to accept something from enacting clause or to
limit its applicability.
As such, the function of a proviso is to qualify something or to exclude, something from what is
provided in the enactment which, but for proviso, would be within the purview of enactment.

The general rule about the interpretation of a proviso is that proviso is not to be taken absolutely
in its strict literal sense but is of necessity limited to the ambition of the section which it qualifies.

The court is not entitled to add words to a proviso with a view to enlarge its scope. The proviso must
reasonably be conveyed by the words used therein.

Where the proviso is directly repugnant to a section, the proviso shall stand and be held a repeal of
the section as the proviso speaks the latter intention of the makers.

The real nature and function of a proviso has been effectively laid down in following case laws:

In Union of India v. Sanjay Kumar Jain, the function of proviso was declared that it qualifies
or carves out an exception to the main provision.

In Vishesh Kumar v. Shanti Prasad, the Supreme Court held that a proviso cannot be permitted
by construction to defeat the basic intent expressed in the substantive provision.

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

It has been held in R. v. Leeds Prison (Governor), that the main part of an enactment cannot be
so interpreted as to render its proviso unnecessary and ineffective.

In Commissioner of Income-tax, Bhopal v. M/s. Shelly Products, the Supreme Court:

 While interpreting the proviso to Section 240 of the Income-tax Act, 1961 clarified that
where a proviso consists of two parts, one part may be declaratory but the other part may
not be so.
 Therefore, merely because one part of the proviso has been held to the declaratory, it does
not follow that the second part of it is also declaratory.
 Since proviso (b) to Section 240 of the Act is declaratory, it was held to be retrospective in
operation.
In Shimbhu v. State of Haryana, the Apex Court held that a proviso should be construed in
relation to the main provision.

But, in Sree Balaji Nagar Residential Assn. V. State of Tamil Nadu, the apex court clarified
that where the main provision is clear and unambiguous, recourse to the proviso cannot be taken
to interpret it.

In State of Punjab v. Kailash Nath, the Supreme Court held that the proviso has to read as an
exception to the main provision of a section.

Sometimes more than one provisos are attached with the section. If there is any repugnancy
between the two provisos, the latter shall prevail.
A proviso may serve four different purposes:

 qualifying or excepting certain provisions from the main enactment;

 it may entirely change the very concept of the intendment of the enactment by insisting
on certain mandatory conditions to be fulfilled in order to make the enactment workable;
 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 option addenda to the enactment with the sole object
of explaining the real intentions of the statutory provision.

Limitations of Proviso as Internal Aid to Construction

 Proviso is constructed in relation to the section to which it is appended.
 The ambition and scope of enacting sections cannot be widened or curtailed by the proviso.

Que.9 What do you understand by the

strict constitution of penal statutes?
Explain with the help of leading cases
Ans_ I
The interpretation of statutes is restrained to courts of law. Courts have developed a large and
complicated set of rules to guide individuals in construing or interpreting laws. The majority of
interpreting laws are contained in the books of interpretation of statutes, and it is helpful to the
drafter to maintain these interpreting laws in consideration during drafting Acts. For example,
when interpreting Canadian laws, the interpretation of statutes must strictly follow every
Canadian Act that is remedial to its Act and acquire reasonable, broad, and liberal construction to
ensure the achievement of the Act’s purpose, which defines the Act’s original objective, meaning,
and character. It is the responsibility of the court to give effect to an Act in order to obtain its
actual meaning, while the process of rules or principles is formed to interpret which is restricted
to courts.

Interpretation is the process of finding the legal meaning of any legislation that means more than
construction. The finding of the meaning of a parliamentary Act or a provision of a parliamentary
Act is referred to as interpretation. The extraction of grammatical meaning is a major focus of
construction.

“Strict construction” refers to the interpretation which is made strictly, that assures each word in
legislation must be interpreted by letter and that the interpretation should never go beyond the
statute. A close or narrow reading of interpretation is known as a strict construction. In this
approach, courts must follow the literal rule. The term “liberal construction” relates to
interpretation that is applied freely with the goal of ensuring the purpose or advancing the aims
of the legislation. In this construction, the courts will choose between the golden rule and the
mischief rule.

What is a liberal construction of statute

The term “liberal construction” refers to the ability of the Bench to interpret different factors
while determining the meaning of a word or document. According to this interpretation, the
author most likely meant what the reader believes. The interpretation must be made liberally
with the goal of promoting or discovering the state’s objective. In the event of welfare laws,
equivocal terms or ambiguous language, and hindering statutes, liberal construction is used.

Liberal construction may also refer to beneficial or benevolent legislation, such as the Employer’s
State Insurance Act,1948 and the Contract Labour Act,1970. This construction is governed by the
golden rule and the mischief rule, which are referred to by judges. The Consumer Protection Act,
1986 is a valuable method of law that protects the interests of consumers. It ought to be
interpreted liberally. A provision in legislation offering incentives for boosting growth and
development should be liberally read such that the actual purpose of such encouragement is not
hindered.

The mischief rule is applied when a statute is ambiguous but does not invent imaginary
ambiguities. When the legislation is plain and clear, this criterion does not apply. The mischief
rule established an entirely different approach to the interpretation of statutes. It is also referred
to as a functional, purposeful, logical, and social engineering norm of interpretation. It is a vital
tool for legislative interpretation of statutes, but the intent or goal of the legislation is not always
plain or transparent, or it seems different to various observers. The whole impact is undeniably
one of the most flexible interpretations of statutes.

“The golden rule is that the words of a statute must prima facie be given their ordinary meaning,”
according to Viscount Simon L.C. It is argued that “unless it can be proven that the legal context
in which the words are employed needs a different interpretation, the natural and usual meaning
of words shall not be deviated from”. When interpreting with an exemption clause, the words
must be given a liberal interpretation, with no abuse to the language. It should be noted, however,
that illogical interpretation outcomes should be avoided. Thus, when interpreted liberally, judges
refer to the golden rule and the mischief rule.

Inapplicability of liberal construction or beneficial rule:

1. When the Court determines that applying the rule of liberal interpretation, would result
in re-legislating a statute provision by substituting, adding, or changing the terms in
the statute. Then this construction does not apply.
2. When a term in law can only have one meaning, the application is not possible.
However, if a term may have more than one meaning, liberal Construction is possible to
apply.
3. If the statute’s provision is clear, unambiguous, and without doubt, the applicability of
Liberal construction is not possible.- Shyam Sunder v. Ram Kumar, (2001) referenced
with approval in Union of India v. Tata Chemicals, (2014)
4. Beneficent legislation may have to be liberally interpreted, but when a statute does not
allow for more than one interpretation, a literal interpretation must be used — Collector
of Central Excise v. Saurashtra Chemicals, (2007)
 5. The assumption of liberal interpretation of beneficial law applies only when two points
of view are available – Manipal Academy of Higher Education v. Provision Fund
Commissioner 2008

Case laws

Allahabad Bank v. All India Allahabad Bank Retired

Employees Association, (2010)
In this case, the skilled counsel for the appellant side argued that remedial statutes, as opposed to
punitive statutes, such as welfare, beneficent, or social justice focused legislation, are preferable
to penal statutes. Such welfare statutes should be liberally construed. They must be interpreted
in order to get the remedies contemplated by the legislation. It is well established, and there is no
need for repetition, that labour and welfare statutes must be broadly and generously construed
with appropriate consideration for the directive principles of state policy. Welfare, beneficent, or
social justice-oriented statutes should always be construed liberally. In this case, this was the
judgement.

Om Prakash v. Reliance General Insurance, (2017)

The Consumer Protection Act, 1986 is a beneficial legislation that needs to be liberally construed
in order to defend the interests of consumers. This was the verdict.

Secretary v. Suresh, (1999)

The Contract Labour Regulation Act, 1970 is a beneficial piece of legislation that should be given
the broadest possible meaning in terms of the words used. Courts are created for the benefit of
society, and a question presented in the matter of interpreting beneficial legislation with a liberal
construction would not be appropriate, nor would a question posed in the matter of interpreting
the same with a narrow pedantic approach.

Madan Singh v. Union of India, (1999)

In the case, the Court’s obligation is to liberally interpret a provision, particularly one that is
helpful, in order to offer a broader meaning rather than a limited reading that would contradict
practically every goal of the law.

Radhyshyam v. Mewalal, (1929)

The Allahabad High Court ruled that the Excise Act should be interpreted strictly and
constructed liberally in the public interest.
What is a strict construction of a penal statute
The term “strict construction” refers to a statute that is strictly construed in legislation. Each
word must be interpreted by letters, and the interpretation must not exceed the scope of the
legislation. It is a legal theory that applies in a narrow manner or in a strict manner of
interpretation to legal legislation such as the United States Constitution. The bench’s ability to
read a text in written form that is provided inside the four boundaries of a legal document must
be evaluated. The constitution must be rigorously construed in its original meaning.

This form of construction is used in taxation and criminal legislation. In strict construction
interpretation, the courts refer to the literal rule. The literal rule, alternatively known as the
simple rule, is a traditional rule used by English courts. It is a guideline of law interpretation that
in the first instance, the grammatical interpretation of words must be followed. This is the
earliest construction rule to which judges refer when referring to strict construction. Even today,
judges utilize it since they do not have the authority to make laws. In each and every system of
interpretation, it is the primary and first interpretation of laws. In other words, it’s just what the
law says rather than what the law was meant to express.

The term “strict construction” refers to “a close or narrow reading and interpretation of a
legislation or written document.” In cases involving a dispute over terms of legal meaning, the
bench is sometimes called upon to determine a construction or interpretation of an ambiguous or
confusing phrase. The common law tradition has created a number of maxims and guidelines that
help courts interpret legislation or agreements such as contracts. Strict construction occurs when
ambiguous legal language is treated as an accurate and precise interpretation and no further fair
evaluations or justifiable consequences are considered. When interpreting legislation affecting the
subject’s liberty, strict construction is recommended, but only after verifying that all conditions
are met before the subject’s liberty is restrained.

In terms of penal law, strict construction must be used in penal legislation, which implies that
penal statutes may not be broadened by assumption or purpose beyond the fair meaning of the
language employed or the interpretation that is fairly justified by its provisions. These statutes
will not be construed to include offenses or people other than those expressly defined and provided
for in their wording. The rule of liberal is aided by the rule of strict construction under penal
statutes, which states that any complexity in a penal statute should be settled in favor of the
defendant. According to strict construction criteria of Maxwell, the gravity of the criminal
legislation should be determined. Penal legislation must be strictly construed, as stated in Smith
v. Wood (1889) and Kamal Prasad v King-Emperor (1947).

Case laws

State of Jharkhand v. Ambay Cements, (2005)

The judgment, in this case, was decided by a three-judge panel of the Supreme Court, and it was
determined that:

1. The exemption clause must be rigorously construed, and it is not available to the Court
to ignore conditions specified in the exemption notification.
2. A mandatory rule must be carefully obeyed, but a directory rule may be satisfied with
sufficient adherence.
 3. When legislation prescribes a certain Act to be performed in a specific manner and
states that failure to comply with the said requirement results in serious consequences,
such requirement is mandatory.
4. It is the basic principle of interpretation that if a statute directs that something must be
done, it must be done in the manner specified and not in any other way.
5. Where legislation is criminal in nature, it must be rigidly construed and obeyed.

State of Punjab v. Ram Singh, (1922)

The facts of the case seem to be that a constable was caught wandering in a public spot with a
gun, having been intoxicated while on duty. During a medical check, he abused the doctor. It was
determined that the policeman was capable of committing the most crimes as a result of his
drinking. The Supreme Court construed strict construction in accordance with Maxwell
standards, which are based on the seriousness of Penal legislation, and found it justified to punish
him for his misbehavior.

Bakhtawat Singh v. Balwant Singh, (1927)

The Allahabad High Court held that if punishment has been issued for failing to observe the
requirements of any legislation, it shall be construed strictly.

Difference between strict and liberal

construction of penal statutes
Strict Construction of penal
Liberal Construction of penal statutes
statutes

Strict Construction states that each

Liberal construction indicates that the
word in legislation must be interpreted
interpretation must be liberal in order to
1. letter by letter, and the interpretation
advance the legislation or accomplish the
must not go beyond the scope of the
legislation’s purpose.
statute.

Courts favour literal rule under this Courts favour the golden rule or mischief
2.
construction. rule under this construction.

The Employers State Insurance Act and the

Taxing and criminal laws are strictly
3. Contract Labour Act are both liberally
construed.
construed.

Strict construction denies widening the

law, resolving all reasonable disputes Liberal construction broadens the law by
4.
against the applicability of penal Acts, resolving any reasonable uncertainties
and disabling statutes. against the applicability of welfare laws,
 unclear words or sentences, and disabling
statutes.

It refers to the process through which It refers to the process through

5. legislation is broadened in order to which legislation is constrained in order to
express legislative purpose. express legislative purpose.

This construction implies that the bench

If the legislation is unclear or ambiguous in
believes that the original text has all of
6. nature, this interpretation can be expanded
the answers to any present or future
to grasp the attitudes and things change.
difficulties.

This statute construction is performed when

This strict construction can be used even
7. a statute does not allow for two or more
if just one interpretation is needed.
interpretations.

A strict interpretation is necessary for For the prevention of animal cruelty, a

8.
sales tax. liberal interpretation is necessary

The strict construction is interpreted The liberal construction is freely interpreted

rigidly by the courts. They do not by the courts. They are not bound by the
9. mistake in their interpretations of the exact interpretation of the law and can
legislation, and the decision is solely interpret it in a variety of ways using liberal
based on the original text. construction.

Case laws

Ravula Subba Rao and Another v. the Commissioner

Of Income-tax, (1956)
In this case, there is a distinction between strict and liberal construction in respect to the
following question: “Why should a statute be given a strict or liberal interpretation, depending on
the situation? The only possible accurate response is that the sort of construction used gives effect
to the legislative intention. Sometimes, in order to make the legislation effective, a liberal
construction is required, and sometimes, such construction will defeat the legislature’s intention.
If this is the correct understanding of the rule of construction to be followed, then a strict or
liberal construction is simply a method of extending or restricting the scope of a statute in order to
convey the legislative meaning. If this is the proper position to be given strict and liberal
constructions, it would make no difference whether the statute in question was penal, criminal,
remedial, or in exemption of common right, because the distinction based on this classification
would be meaningless.”

Conclusion
Thus, liberal and strict interpretations of penal legislation are applied to interpret regulations in
their own way. The strict interpretation of penal legislation is carefully construed in favour of the
individual being prosecuted. In the event of an ambiguity in the text of the provision, this rule
suggests a predilection for the subject’s liberty. Criminal and penal laws must be rigidly construed
and cannot be widened by intention, interpretation, or fair considerations. If a liberal
interpretation is established in criminal legislation, it must be for the advantage of the public
interest. Penal laws should not have a retrospective effect since it is harmful to the accused’s
interests. The literal rule of interpretation will be used by the courts in strict interpretation. The
golden rule of interpretation, or the mischief rule, will be applied by the courts in liberal
interpretation.

Que10. What do you mean by construction

‘ejusdem generis’? Explain with the help of
leading cases
Ans_ I
For knowing the meaning of the statute, the statutory interpretation is done by the Courts. There
are many rules for the interpretation of the statutes. One of them is “the doctrine of Ejusdem
Generis”. This doctrine is applied when there are some specified words which are been followed by
the general words. If there is any ambiguity in the meaning of the general words then this
doctrine is applied. This doctrine provides that the general words which follow the specified words
will be restricts to the same class of the specified words. This is very important doctrine through
which the purpose or the objectives of the statute can be achieved and a proper justice can be
given.

In this Article, the following topics will be covered: what is interpretation of statutes and the rules
of interpretations, then the meaning of ejusdem generis doctrine will be discussed and its
necessity and when it is applied, next thing which is discussed is the essentials of the doctrine
which will cover what conditions are necessary for its application, next the limitation of this
doctrine is been provided so as to when is doctrine is not applicable. At last the improper use of
this doctrine by the courts is been discussed that how courts does not use this doctrine properly
sometime and thus justice is not provided.

Statement of problem
The Doctrine of Ejusdem Generis is a canon of interpretation, which is used by the Courts for
providing the Justice, by interpreting according to the intention of the legislation so as to make
the provision of legislation clear and unambiguous and thus fulfilling the purpose of the
legislation. But the matter of concern is that whether the Courts are using the doctrine of
Ejusdem Generis in a proper manner, to properly interpret the legislations and fulfill its
purpose or the Courts are using this doctrine improperly where it is not required thus defeating
the purpose and causing the miscarriage to the Justice?

Objectives
 To understand the meaning of the statutory interpretation.
  To understand the meaning of “Ejusdem Generis”.
 To study the applicability and the non-applicability of the doctrine of Ejusdem Generis.
 To study the cases where this doctrine were applied and where not.
 To examine whether the Courts are using this doctrine in a proper manner or not.

Hypothesis
 For the application of this doctrine the general words must follow the specific words and
the specific words must necessarily constitute a genus/class
 There must be an intention of the statute for restricting the general word to the
genus/class of the specified words it follows.
 As this doctrine has to be used very cautiously by the Courts but sometimes the Courts
may not use this doctrine properly and apply it where it is not necessary thus defeating
the purpose of the statute and causing a miscarriage to Justice.

Research questions
 What is Ejusdem Generis?
 When this doctrine can be applied and when it cannot?
 Does the Court apply this doctrine of ejusdem generis properly or not?

Interpretation of statutes and rules of

interpretation
“The essence of law lies in the spirit, not in its letter, for the letter is significant only as being the
external manifestation of the intention that underlies it” – Salmond

Parliament creates the Law and then those Laws are interpreted by the Judges by the use of the
canons of Statutory Interpretations. While drafting the statues draftsmen makes sure that those
statutes are not ambiguous and clear. However, those statutes can include the words which have
uncertain meanings and with the progression of the society, the old statutes may include words
which are not used in the present day. Further, Parliament may have left some errors unnoticed.
Hence it is required by the Judges to interpret the statutes.

The right understanding of the legislation is known as the Interpretation of statutes. For the
determination of the intent of the legislation, this process is used. As the purpose of the Court is
not only the reading of the legislation, but also to understand its intent and in a meaning way to
apply it. The objective behind the statutory interpretation is to clarify the ambiguous words and
their meaning, according to the intention of the legislation, which was not clear before the
interpretation.

It is not expected by the Courts to arbitrarily interpret the stats. Hence, there are certain
principles of interpretations, which are exercised by the Courts. These principles are sometimes
called ‘rules of interpretation’ or ‘the canons of interpretations’. These rules of interpretations are:
Primary rules
 The Literal Rule.
 Mischief Rule : Heydon’s Rule
 Golden Rule.
 Harmonious Construction
 Rule of beneficial construction
 Rule of exceptional construction

Secondary rules
 Noscitur a sociis

 Ejusdem Generis
 Reddendo Singula Singulis
In this Article, a further and detailed discussion will be on the “principle of ejusdem generis”,
which is one of the principles of the rules of interpretations.

Doctrine of ejusdem generis

Meaning and definition

‘Ejusdem Generis’ is a Latin term and the meaning of it is “of the same kind and nature”.

According to the Black’s Law Dictionary (8th edition, 2004.), “the principle of Ejusdem
Generis is where general words follow an enumeration of persons or things by particular and
specific words. Not only these general words are construed but also held as applying only to
persons or things of the same general kind as those specifically enumerated.”

This doctrine is also called Lord Tenterden’s Rule (See here), which is an ancient doctrine.
The Doctrine of Ejusdem Generis provides that when a list of specific words are being followed by
the general words, the general words are interpreted in a way so as to restrict them to include
the items or things which will be of same type as those of the specific words. In other words,
“where a law lists specific classes of persons or things and then refers to them in general, the
general statements only apply to the same kind of persons or things specifically listed.” (See here)
For example if a law makes reference to cars, trucks, tractors, bikes and other motor-powered
vehicles, then the general word which is ‘other motor powered vehicles’ will not include any planes
or ships because the specific words preceding are of the kind of land transports and when doctrine
of ejusdem generis is applied then that general word will be restricted to includes the things of
same category as that of the specific words.

In case of Evans v. Cross [(1938) 1 KB 694], the Court had applied the ejusdem generis rule.
The issue was in relation to the interpretation of the word “other devices”. It was under the
definition of “traffic signals” under Section 48(9) Road Traffic Act, 1930, to include “all signals,
warning sign posts, signs, or other devices”. The Court held that a painted line on a road cannot be
included in the “other devices” as a traffic signs because devices are here indicating a thing,
whereas painted line on a road is not.

Need for the doctrine of ejusdem generis

The need for interpretation of statute by the doctrine of Ejusdem Generis arises when-

 There is ambiguity in the language of the provisions of statutes, or

 When in the provision, there is a possibility of two views, or
 The meaning which the provision of a statute gives, defeats the purpose of the statute.
There is no need for the interpretation if in the language there is no ambiguity and it is clear. (See
here)

WHEN APPLIED: Unless the context requires, the natural meaning should be given to the
general words normally. In the case of Lilawati Bai v. Bombay State, 1957 Supreme
Court (See here), the Court observed that “where the context and the object and mischief of the
enactment do not require restricted meaning to be attached to words of general import, the Court
must give those words their plain and ordinary meaning.”

But when on reading, it is found that there is some ambiguity in the provisions of the statute and
the intent of the statute is to restrict the general words to the category of the specifics words, then
this doctrine of ejusdem generis is applied. Therefore, when general words follows the specified
words and those specified words have a genus/category then the general words will be restricted
to the same genus/category. This is done because the legislation had shown it intention by using
such words of class/category and is the Court will go in contrary to that intention and gives wider
meaning to the general words then the purpose of the legislation will be defeated.

Ejusdem generis: a facet of noscitur a sociis

As been observed by the Court in the case of Maharashtra University of Health and others
Vs Satchikitsa Prasarak Mandal & Others, 2010 Supreme Court (See here) “soccis” is a
Latin word, which means “society”. “Noscitur a sociis” is a Latin maxim which means that “the
term in a statute is to be recognized by the associated words”. The doctrine of ejusdem generis
is a facet of Noscitur a sociis. “Therefore, when general words are juxtaposed with specific
words, general words cannot be read in isolation. Their color and their contents are to be derived
from their context.” Same observation was been made by the Court in the case of Viscount
Simonds in Attorney General v. Prince Ernest Augustus of Hanover, (1957) AC 436 at 461
of the report.

Essentials of the doctrine of ejusdem generis

In the case of Amar Chandra Chakraborty v. Collector of Excise, 1972 Supreme Court
(See here) and Uttar Pradesh State Electicity Board v. Harishanker, 1979 Supreme Court
(See here) the five essential conditions for the application of this rule were laid. “The conditions
or the elements are as follows:

1. The statute contains an enumeration of specific words,

 2. The subjects of enumeration constitute a class or category;
3. That class or category is not exhausted by the enumeration;
4. The general terms follow the enumeration; and
5. There is no indication of a different legislative intent.”
Thus, it can be seen that for the application of the doctrine of ejusdem generis, there has to an
enumeration of specific words and those words should necessarily be of a class or a genus and
there such genus or class should not be exhausted. Also such specific words must be followed by
the general words. And most importantly there was no contrary intention of the legislation. That
means that the intention of the legislation was there to restrict the general words by the doctrine
of ejusdem generis.

As can be seen from the above discussion the most two important elements for the application of
the doctrine of ejusdem generis are: the specific words should constitute a particular class or
genus and the intention of the legislation should be there for such restriction of the general words.

Class or genus of the specific words

In order to invoke the doctrine of Ejusdem Generis for its application, a distinct ‘category’ or
‘genus’ must be present. “The specific words must apply not to different objects of the widely
different character but to something which can be called a class or kind of object” (See here). This
implies that the enumeration of specific words preceding the general should necessarily constitute
a distinct genus: it must be of some class. Then only after the application of ejusdem generis the
general words can be restricted to the same class or genus.

In various ways, classes can be defined, however, in order to unlock the true value of this doctrine,
the key is to make sure that the class which is identified should have some objective relationship
with the purpose of the statute. If we say in a different manner, in the aim of the statute and in
its subject (which are revealed in the intention of the legislation), the basis is there which
determines which among various definitions of classes is correct.

There should be an Intention of the Legislation

Further, for the application of the rule of Ejusdem Generis, there should be an intention of the
legislation for the same. Meaning that when the specific words were forming a genus or a class,
followed by a general word and it can be seen that the intention of the legislation was there to
restrict the general words to include the thing of same class as that of specific words. Hence, it is
necessary that there was a clear intention of the legislation for interpretation its provision
through doctrine of ejusdem generis.

Cases where doctrine of ejusdem generis was

applied:

Siddeshwari Cotton Mills (P) Ltd v. UOI, 1989

Supreme Court (See Here)
 In this case, the Supreme Court applied the rule of ejusdem generis while interpreting the
general words ‘any other process’ under section 2(f) of the Central Excise & Salt Act, 1944 read
with Notification Number 230 and 231 dated 15-07-1977. This general word followed the specific
words which were “bleaching, mercerizing, dyeing, printing, water-proofing, rubberizing, shrink-
proofing, organic processing”. The Court here by applying the doctrine of ejusdem generis held
that “the specific words form a class of process which is importing a change which is of lasting
nature. And therefore ‘any other word’ must share one or any other of that process/incident”.

Kerala Cooperative Consumers’ Federation Ltd v. CIT,

(1988) 170 ITR 455 (Ker).
The Court in this case, interpreted the meaning of the phrase “‘Body of Individuals”, which was
provided in the section 2(31) of the Income Tax Act. The phrase was alongside “‘Association of
Persons”. The Court by applying the doctrine of ejusdem generis held that “Body of Individuals”
will have to be understood with the same context, meaning and background which are provided to
the words “Association of Persons”. In this decision, the court was required to interpret the
meaning of the phrase ‘Body of Individuals’. It has said that in construing the words ‘Body of
Individuals’ occurring in section 2(31) of the Income Tax Act along-side the words ‘Association of
Persons’, the words ‘Body of Individuals’ would have to be understood in the same background,
context and meaning given to the words “Association of Persons’.

Limitations for the application of doctrine of

ejusdem generis
As it has been previously discussed, for the application of rule of Ejusdem Generis, some essential
conditions are necessary to be fulfilled. Among which the most important are the existence of a
genus/class in the specified words and that the intention of the legislation was there to read the
statute in that way. The same has been held in two of the landmark cases mentioned earlier.
From that it can be easily deducted that, when this doctrine is not applicable. The Doctrine of
Ejusdem Generis cannot be applied in the following conditions:

1. If the general words are there before the specified words then this doctrine cannot be
applied. Therefore it is necessary that specific words must be followed by the general
words. Department of Customes Vs Sharad Gandhi, 2019 Supreme Court (See
here)
2. If the specific words in the provision of the statute which are been followed by the
general words do not form a distinct genus/class then this rule cannot be applied. As
this is the most important factor to restrict the general word to the same genus of the
specified words by using the rule of ejusdem generis. In the case of Jagdish Chandra
Gupta v. Kajaria Traders (India) Ltd, 1964 Supreme Court (See here), the Court
stated that whenever the specific words are been followed by general words, the
interpretation of ejusdem generis does not need to be applied. Before such
interpretation, there must be a category or a genus constituted so that the general
words with reference to it can be restricted, as intended.
3. Also the doctrine of ejusdem generis cannot be applied if the general word follows
only one word as that one word cannot form a distinct class/genus.
However there is a exceptional instance to this that the general words if is following a one word
genus which has been created by the court then that general word can be restricted to that genus
of one word.
 4. If the specified words exhaust the whole genus/class then this doctrine is not applicable
and in these cases the general word will be given a wider meaning or a different
genus/class as those specified words has already exhausted the whole genus and nothing
would be left to be included in the general words.
The same has been laid in the “Principles of Statutory Interpretation by Justice G.P. Singh
(page 512)”, that if the words preceding the general words not only forms a mere specifications of
a class/genus but also it forms the whole description of that genus/class then this rule of ejusdem
generis cannot be applied. The insurance in the ‘policy of insurance’, were been provided an option
for he termination of the policy if they so desired “by reason of such change or from any other
cause whatever”. Here the words “by reason of such change” can include any and each and every
act which is done to the insured property, whereby the risk of fire increased. Here Lord
Watson stated that, in the case, “In the present case, there appears no room for its application.
The antecedent clause does not contain a mere specification of particulars but the description of a
complete genus…”

5. If there is a contrary intention of the legislation for the application of the rule of
ejusdem generis, then this rule cannot be applied. In many decided cases, it has been
held that the doctrine of ejusdem generis is “not an inviolable rule of law”. It is
“permissible inference in the absence of an indication to the contrary”. This doctrine is
also one of the cardinal canons of interpretations and therefore, no interpretation of a
statute can be done in a manner so as to cause a part of it “otiose”. The State Of
Maharashtra vs Jagan Gagansingh Nepali, 2011 Bombay High Court (See here)

Cases where the doctrine of ejusdem generis

was not applied
It is not necessary that whenever there are some specific words, followed by the general words,
then the rule has to be applied. The conditions when this rule cannot be applied are being
discussed. Hence when these conditions exist, the court does not apply this doctrine of Ejusdem
‘generis. This is a rule of interpretation which may or may not be applied, depending on the
intention of the legislation and the other essential conditions.

Hamdard Dawakhana v. Union Of India

Here in this case the question was regarding the interpretation of the general phrase “any other
beverages containing fruit juices or fruit pulp”. This was in the Fruit Products Order, 1955, which
was passed under the section 3 of the Essential Commodities Act, 1955. Through the order the
obligation was made that in fruit syrup, peonage of fruit juice should be 25. The contention made
by the petitioner was that, to its product which is Rooh Afza, the order will not be applied because
the order provided “squashes, crushes, cordials, barley water, barreled juice and ready-to-serve
beverages or any other beverages containing fruit juices or fruit pulp”. Further by applying the
ejusdem generis, the general phrase will be restricted to the specified words.

This contention was rejected by the Supreme Court and concluded that ejusdem generis rule will
not apply here because the things mentioned before the general phrase does not constitute a distinct
genus. Further it is clear from the context that there was an intention that all other beverages
which contain fruit juice should also be included.
Jiyajirao Cotton Mills Ltd v. Madhya Pradesh
Electricity Board
In this case the issue was regarding the interpretation of the general words “any other relevant
factors”. Section 49 (3) of the Electricity Supply Act, 1948, empowers the electricity Board to fix
deposit tariff for supplying electricity to “any person having regard to the geographical position of
any area, the nature of the supply and the purpose for which the supply is required and any other
relevant factors”.

Here the Supreme Court held that the doctrine of Ejusdem Generis cannot be applied because the
words preceding the general words did not constitute a distinct genus/class.

Lilavati Bai v. State Of Bombay, 1957 Supreme Court

(See Here)
Here in the case the issue was regarding the interpretation of the general word “or otherwise”. In
the premises the widow of the tenant was residing. Under the section 6(4)(a) of Bombay Land
Requisition Act, 1948, the respondent had requisitioned the premises. Thus, this requisition was
challenged by the petitioner that the premises was not vacant. For this petitioner supported the
contention by explaining the section which provided that “vacancy will exist when the tenant
ceases to be in occupation upon termination of his tenancy, eviction or assignment or transfer in
any other manner of his interest in the premises or otherwise”. The petitioner contended that by
applying the doctrine of ejusdem generis, the general term must be restricted to the terms
preceding it.

The Supreme Court by rejecting the contention held that the doctrine here cannot be applied
because the words preceding the general tem does not form any identifiable genus.

Improper use of ejusdem generis: miscarriage

of justice
The application of doctrine of ejusdem generis must be done very cautiously. As by using this rule
there is a departure from the natural meaning of the words so that those meaning can be given to
them which the legislation had intended so as to fulfill its purpose. This rule has to be on the
basis of fundamental rule that “that the statutes must be construed so as to carry out the object
sought to be accomplished”. Thus this rule requires that there must be a genus constituted by the
specific words for which the general words would be restricted and if the context provides for any
contrary intention so as to give the terms a wider meaning then this rule cannot be applied.
Therefore, it should be applied cautiously as to where it must be applied and where not. If the
conditions necessary for the application are there, then this rule can be applied. However, where
the conditions are not been fulfilled and there exist those circumstances which were discussed
earlier for non application of this rule, even after this if the Court applies this rule, then it will be
a diversion from what the purpose of the legislation was and hence there will be a miscarriage of
justice.

There are many instances where the Courts have improperly used the rule of Ejusdem Generis,
even when it cannot be applied in those cases. Even when there was no distinct genus of specified
words or when genus of specified words were been exhausted or when only one words was there
before general words, the rule of Ejusdem Generis were been applied by the Courts. The Courts
also applied this rule in some cases where there was no legislative intent to restrict the wider
meaning of the general term.

The Courts by improperly using the rule of Ejusdem Generis, changes the whole meaning of the
provision and thus defeat the purpose of the Act, as to the intent of the legislation. This results in
miscarriage of Justice.

CASES:

State Of Bombay v. Ali Gulshan, 1955 Supreme Court

(See Here)
The Supreme Court in this case held that the decision of the High Court was in error and
therefore it rejected the decision of the High Court and concluded that High Court had not use the
doctrine of Ejusdem Generis properly and the doctrine should not have been applied in this case.

The issue was regarding the interpretation of the general word “any other purpose” in the
section 6 (4) (a) of the Bombay Land Requisition Act, 1948. The general words along with the
specified words were “‘State Government may requisition for the purpose of State or any other
public purpose”. Here the appellant contented that “under the provision the appellant was
entitled to requisition premises for housing a member of the foreign consulate”. The High Court
by applying the rule of ejusdem generis restricted the word “any other purpose” with the “purpose
of state”. The Supreme Court here held that this finding of High Court is wrong in applying the
rule of ejusdem generis and it further held that here “any other purpose” which is the general
expression follow only one expression, which is “for the purpose of State”. Thus it does not form a
distinct genus/class and therefore, the rule of ejusdem generis cannot be applied. Futrther, the
Court observed that by the words used in the statute, the intention of the legislation was also
clear to give the words their natural meaning, which means that the expression “ any other
purpose” will also include “providing accommodation to a member of foreign consulate”.

Maharashtra University Of Health And Others v.

Satchikitsa Prasarak Mandal & Others, 2010 Supreme
Court (See Here)
The Supreme Court in this case held that the High Court was wrong in its Judgment by wrongly
applying the doctrine of Ejusdem Generis when there was no room for its applicability.

The issue was regarding the interpretation of “teachers means full time approved Demonstrators,
Tutors, Assistant Lecturers, Lecturers, Readers, Associate Professors, Professors and other persons
teaching or giving instructions on full time basis in affiliated colleges or approved institutions in
the university”. The High Court applied the Doctrine of Ejusdem Generis and concluded that
unapproved teachers will not fall in the definition of teachers and thus under section 53, the
Grievance Committee for taking cognizance of complaint, does not have jurisdiction for
unapproved teachers as they have jurisdiction to take cognizance of the teachers defined in the
Act. Thus, for respondents 5th and 6th (being unapproved teachers), the grievance committee has no
jurisdiction to take complaints.

The Supreme Court held that the High Court wrongly applied the rule of ejusdem generis to the
definition of teachers and not to include unapproved teachers in the definition. The Court further
held that the definition of teachers is wide enough to include the unapproved teachers also. There
is even a contrary intention of the legislation to not restrict the definition and first part of the
definition includes the enumerated categories and the second part contains different category of
persons. This intention is clearly indicated by the disjunctive “and”. Thus first part deals with the
teachers mentioned in the enumerated category and the second includes the other persons who
are teaching or instructing in affiliated colleges/ approved institutions in the University, on full
time basis.

Further the Court held as there was a contrary intention, so the teacher definition will be given
wide scope, which means rule of ejusdem generis will not be applied to restrict the definition of
teacher to only approved teachers. If the restriction is applied, then the substantial part of the
definition of teacher will be redundant. By doing this, it will be against the doctrine of ejusdem
generis.

Conclusion
Ejusdem generis, which is one of the canons of the interpretation, is used by the Judges so as to
clear the ambiguity in the provisions of a statute and further make it clear by knowing the
intention of the legislature and thus properly fulfilling the purpose of the legislation. Here by
applying the rule of ejusdem generis and removing the ambiguity by examining what the
legislation intends, the justice is served by the Courts and thus, the purpose of the legislation is
fulfilled.

However as had been already discussed earlier in the project this doctrine has to be applied very
cautiously. Therefore the existence of the essential elements is necessary for the doctrine to be
applied. It is necessary that the general words follow the specified words and the specified words
to necessarily constitute a distinct genus/class. Further this doctrine is not an inviolable rule of
law. Hence it cannot be applied when the intention of the legislation is contrary, means if the
legislation intention is to give the general terms its wider meaning. Further the exceptions which
are been discussed should also be kept in mind while applying this principle. Because if there is
no genus of the specified words or the intention of the legislation was not to restrict the general
term then this can lead to change in the whole meaning of the provision and will defeat the whole
purpose of the Act.

However, it can be concluded from the cases discussed in the project that the Courts do apply this
doctrine improperly even when in the provisions the applicability of this principle was not
possible. The Courts apply this principle even when the specified words do not constitute a
genus/class, or when the intention of the legislation was to give the general words its wider
meaning. This step of the Courts can cause a great harm. It can change the whole meaning of the
provision, thus applying it in the wrong manner and defeating the whole purpose of the
legislation. Hence, it will cause a great miscarriage to the Justice. These mistakes can lead to
the opposite of what the main objective of the doctrine of ejusdem generis was.
Therefore, it is very necessary that this doctrine should be applied very cautiously by the Courts
by properly analyzing as to where this doctrine is to be applied and where not depending upon its
essential element and exceptions.

Que11. Distinguish between ‘judicial

review’ and ‘interpretation of statutes. Is
the power of the court same in both the
process
Ans_ I
The judiciary play a crucial role in interpreting the Constitution’s provisions. The court serves as
the sole interpretator, protector and caretaker of the Constitutional’s supremacy. The judiciary
must play a crucial role in interpreting and enforcing the country’s human rights, which are
codified in the country’s fundamental law. As a result, it is important to understand the
judiciary’s approach to constitutional interpretation, and a judiciary must formulate realistic
wisdom after adopting an innovative and purposeful approach to the interpretation of various
constitutional rights.

The issue arises if more time has elapsed for such laws to become outdated and no longer
relevant this is where judicial imagination comes into play. The spirit of the law that is applicable
to the moment and, more importantly, relevant to the facts of the case is given interpretation by
judges using their knowledge and natural sense of justice.

The Judicial system experienced a revolutionary change in terms of abandoning its conventional
approach and establishing a new frontier of diverse judicial activism with many aspects and
dimensions, paving the way for an activist liberal judicial mechanism based on the Constitution.

Statement analysis
As a casual observer, many consider law to be the laws and regulations enacted by the
government. Judicial creativity can be viewed as the flexible part of the law. As when required the
laws are not been rigid and judgments are delivered on the basis of the facts by the judges using
their wisdom.

The courts in Kesavananda Bharati exercised their creativity to ensure that the foundations of
the constitution are preserved and that the ultimate goal of democracy is preserved by creating a
basic structure doctrine. The constitutional rights, judicial review, and other aspects of our
Constitution is embodied in this doctrine.

Validity
At times the validity of the decisions might be questioned. When the society revolts against the
judiciary’s judgments, the issue of the judiciary’s legitimacy arises, since it lacks common
approval. That is why renowned legal scholars have advised the judiciary to exercise extreme
caution when ruling legislative acts unconstitutional. The judicial override must only be used in
situations where there is “no space for reasonable doubt.”

No legislature can predict future events with a fair degree of accuracy, and any enacted statute
will inevitably expose some holes that the judiciary will be required to fill. This is referred to as
judicial legislation. Although acknowledging this self-evident fact, Justice Oliver Wendell Holmes
observed:

“… I recognise without hesitation that judges do and must legislate, but they can do so only
interstitially; they are confined from molar to molecular motions.”

In the case of Seaford Court Estates Ltd. v. Asher, According to the judge the people who have
made the law cannot be blamed for not making laws required to the current situations but the
laws can be introduced or altered keeping the basic structure the same as when required on the
basis of the facts of the case.

Like it was done in this case when the landlord proved the valid reason to increase the rent of the
apartment as he was providing the extra facilities to the tenant.

Language of interpretation
The term “judicial interpretation” might refer to many different things. This word applies to any
idealisation of a normative concept to a norm-formulation in its broadest sense. When interacting
with legal words and language, this sense of “interpretation” is making the use of the language in
a particular context.

The English language is technical jargon and interpretation becomes difficult.

Many legal interpretation issues occur as a result of a misalignment seen between structure of our
universal grammar and the objectives of a context in rule of law.

This conflict is an unavoidable result of the human experience. To add to the linguistic intrigue,
the legislation has been known to incorporate linguistic concepts as constitutional concepts in
order to overcome linguistic vagueness.

With so many moving pieces, it’s no surprise that the legal system struggles to overcome linguistic
ambiguity. The fact that judges have started to include linguistic context to analysis in their array
of interpretive resources should be beneficial to the linguistic system.

Indian perspective
In India, the concept of judicial creativity has been implied as the judges have been delivering the
judgments in the spirit of laws and interpreting them in context of the facts. The judges are using
their wisdom and natural sense of justice and not just the literal meaning of the stated law. It is
very important to do so or else it would be difficult to make the right judgments. It’s been a while
where judges alter and introduce the law as and when they are required to update the system by
making it more efficient in current time.

For example:

“Article 21 – Protection of Life and Personal Liberty – Protection of life and personal liberty
No person shall be deprived of his life or personal liberty except according to procedure
established by law”.

The Supreme Court of India’s judicial activism, a slew of privileges have been held to be derived
from Article 21. However, some of these orders can raise serious concerns.

For instance – Rape has been declared a violation of a person’s right to a fundamental life
protected by Art. 21. The right to life includes the right to live with dignity. As a result, the right
to life will include all facets of life that contribute to making lives better, effective, and
worthwhile.

Rape is therefore not only a crime against a woman’s individual (victim), but also a crime against
society as a whole. It devastates a woman’s entire psyche and drives her into intense emotional
turmoil. Only through her sheer willpower does she rehabilitate herself in a world that, upon
learning of the abuse, looks down on her with scorn and disgust.

As a result, rape is by far the most despised crime. It is an offence toward basic human rights, as
well as a violation of the victim’s most prized civil right, the right to life and dignity enshrined in
Art 21.

The punishment for rape has not been standard or rigid. They all have differed on the basis of the
facts of the cases and Judges practice judicial creativity and interpretation.

Critical appraisal
The judiciary plays an important role in a country’s citizens’ rights being upheld and promoted.
Judicial advocacy refers to the judiciary’s active role in protecting citizens’ rights and maintaining
the country’s constitutional and legal framework. This means, on occasion, intruding into the
executive’s domain.
Judicial activism establishes a system of checks and balances for the government’s other

branches. It emphasizes the importance of necessary creativity in the form of a solution. It

encourages judges to use their own judgment in situations where the law fails to provide a

balance. It builds the faith in judges and offers information about the issues. Judge’s oath of

giving justice to the nation should not alter as a result of judicial activism. It just encourages

judges to do what they think is appropriate within reasonable bounds. As a result, the confidence

in the justice system and its decisions has been implanted. It aids the judiciary in reining in the

state government’s abuse of power as it interferes with and hurts citizens. In the case of a plu

Judicial activism and judicial restraint

“Judicial activism, is the exact opposite of judicial restraint. The two words used to characterize
the ideology and purpose behind certain judicial decisions are judicial activism and judicial
restraint. At its most basic level, judicial activism refers to a philosophy of judgment that
considers the spirit of the law as well as the social changes. Judicial restraint, on the other hand,
is based on a strict reading of the law and the value of precedent.”

Judicial activism and Parliament

Where there are any holes, ambiguities, or inconsistencies, the judges attempt to fill them in
creatively, describe the complexities, and explain the ambiguity. While practicing that, the judges
are acting as both an interpreter and a legislator. This position is evolving and taking on new
facets. The judiciary is not only monitoring the abuse of authority by other state institutions, but
it is also acting as a “activist.” The more ambiguous a statute is, the more room there is for
judicial discretion in making decisions. Many new ideas have emerged as a result of judicial
ingenuity that are not contained in any particular provision of the Constitution but are critical to
its significance. To fill in the gaps the judiciary needs to step in.

Judicial activism and public interest

litigation
. In a welfare state ruled by the rule of law, where personal and group rights are protected and
enforced, public interest litigation is a valuable impetus of judicial activism. The Supreme Court
considered a document written by two law professors arguing that the residents of a protective
home were living in inhumane conditions as a writ petition in Upendra Baxi v State of Uttar
Pradesh. As a result of their precarious situation, such prisoners were unable to seek legal relief
in the courts.

The court not only considered the letter as a writ petition, but also gave two law professors
standing to continue the case.
As a direct consequence, the goal of public interest litigation is to ensure justice for the poorer
members of society, while judicial advocacy is an attempt to ensure justice for all members of
society. Ever since emergency, the Supreme Court and the High Courts have issued judgments in
a variety of fields, including human rights, governance, and so on.

Judicial activism and human rights

“The basic requirement for a healthy functioning of the judicial process is the right consciousness
amongst the people whereby all possible interests in the society are pressed upon the judicial
system and the courts are able to strike a balance between these interests in the framework of the
social objectives. The social acceptance of judicial process as an objective and rational agency of
social orderings depends upon the intrinsic merit of the judicial pronouncements and their social
consequences.

Actually, the judiciary draws strength from the people’s confidence that the judiciary shares the
widely held values in the society and its policies are geared to the achievement of social goals. The
right to access to justice is the most important of all human rights. By easing the rule of locus
standi, the judiciary has attempted to alleviate the sufferings of a vast number of illiterate and
disadvantaged citizens via the innovative mechanism of Public Interest Litigations (PILs).”

Conclusion
There are instances where a decision made one way or the other would have long-term
consequences, advancing or delaying the progress of the law in a reasonable direction by a
significant amount of time or a small amount of time. The judge has an ability to shape the law in
these kinds of scenarios, where the judge must leap into the core of legal darkness, where the
lights of tradition and common law values flicker and disappear and that the court is given the
chance to form and guide the law.

Que12. What are the three general rules of

statutory interpretation? Illustrate
Ans_ The rules of statutory interpretation

In this part we will explore the number of rules developed by the courts to assist with the

interpretation of a statute. These are:

the literal rule

the golden rule

the mischief rule

the purposive approach.

These rules each take different approaches to interpretation of a statute. Some judges prefer

one rule, while other judges prefer another. Some judges also feel that their role is to fill the

gaps and ambiguities in the law whilst others think that it should be left to Parliament as the

supreme law-maker. As the rules can result in very different decisions, it is important to

understand each of them and how they may be used.

4.2a The literal rule

Under this rule the judge considers what the statute actually says, rather than what it might

mean. In order to achieve this, the judge will give the words in the statute a literal meaning,

that is, their plain ordinary everyday meaning, even if the effect of this is to produce what

might be considered as an otherwise unjust or undesirable outcome. The literal rule says that

the intention of Parliament is best found in the ordinary and natural meaning of the words

used. As the legislative democratic part of the state, Parliament must be taken to want to

effect exactly what it says in its laws. If judges are permitted to give an obvious or non-literal
meaning to the words of parliamentary law, then the will of Parliament, and thereby the

people, is being contradicted. Lord Diplock once noted:

“Where the meaning of the statutory words is plain and unambiguous it is not then for the

judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning

because they consider the consequences for doing so would be inexpedient, or even unjust or

immoral.”

Duport Steel v Sirs (1980)

The use of the literal rule is illustrated by the case of Fisher v Bell (1960). The Restriction of

Offensive Weapons Act 1959 made it an offence to offer for sale certain offensive weapons

including flick knives. James Bell, a Bristol shopkeeper, displayed a weapon of this type in

his shop window in the arcade at Broadmead. The Divisional Court held that he could not be

convicted because, giving the words in the statute a tight literal meaning, Mr Bell had not

offered the knives for sale. In the law of contract, placing something in a shop window is not

technically an offer for sale; it is merely an invitation to treat. (An invitation to treat is an

invitation to others to make offers, as by displaying goods in a shop window.) It is the

customer who makes an offer to the shop when he proffers money for an item on sale. The

court upheld that under the literal meaning of offer, the shopkeeper had not made an offer to

sell and so was not guilty of the offence. Parliament subsequently changed the law to make it

clear that displaying a flick knife in a shop window was an offence.

The literal rule has both advantages and disadvantages. Constitutionally it
respects parliamentary supremacy and the right of Parliament to make any laws it might wish no

matter how absurd they may seem. It also encourages precision in drafting and ensures that anyone

who can read English can determine the law, which promotes certainty and reduces litigation. Some

disadvantages, however, can also be identified. It fails to recognise that the English language itself is

ambiguous and that words may have different meanings in different contexts. The use of this rule can

sometimes lead to absurdities and loopholes which can be exploited by an unmeritorious litigant.

Judges have tended to over-emphasise the literal meaning of statutory provisions without giving due

weight to their meaning in a wider context. Placing emphasis on the literal meaning of words assumes

an unobtainable perfection in draftsmanship. Finally, it ignores the limitations of language. 4.2b The

golden rule This rule is a modification of the literal rule. It states that if the literal rule produces an

absurdity, then the court should look for another meaning of the words to avoid that absurd result.

The rule was closely defined by Lord Wensleydale in Grey v Pearson (1857) HL Cas 61, who stated:

“The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some

absurdity or some 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

inconsistency, but no farther.” The rule was used in the case of Adler v George (1964) to avoid an

absurd result. Under section 3 of the Official Secrets Act 1920, it was an offence to obstruct HM Forces

in the vicinity of a prohibited place. Mr Frank Adler had in fact been arrested whilst obstructing such

forces within such a prohibited place (Markham Royal Air Force Station, Norfolk). He argued that he

was not in the vicinity of a prohibited place as he was actually in a prohibited place. The court applied

the golden rule to extend the literal wording of the statute to cover the action committed by the

defendant. If the literal rule had been applied, it would have produced absurdity, as someone

protesting near the base would be committing an offence whilst someone protesting in it would not. Re

Sigsworth (1935) concerned a case where a son had murdered his mother. The mother had not made a

will and under the Administration of Justice Act 1925 her estate would be inherited by her next of kin,
i.e. her son. There was no ambiguity in the words of the Act, but the court was not prepared to let the

son who had murdered his mother benefit from his crime. It was held that the literal rule should not

apply and that the golden rule should be used to prevent the repugnant situation of the son inheriting.

The golden rule provides no clear means to test the existence or extent of an absurdity. It seems to

depend on the result of each individual case. Whilst the golden rule has the advantage of avoiding

absurdities, it therefore has the disadvantage that no test exists to determine what is an absurdity

4.2c The mischief rule This third rule gives a judge more discretion than
either the literal or the golden rule. This rule requires the court to look to what the law was before

the statute was passed in order to discover what gap or mischief the statute was intended to cover.

The court is then required to interpret the statute in such a way to ensure that the gap is covered.

The rule is contained in Heydon's Case (1584), where it was said that for the true interpretation of

a statute, four things have to be considered: 1. What was the common law before the making of the

Act. 2. What was the mischief and defect for which the common law did not provide. 3. What

remedy Parliament hath resolved and appointed to cure the disease of the Commonwealth. 4. The

true reason of the remedy; and then the office of the Judges is to make such construction as shall

suppress the mischief and advance the remedy. This rule gives the court justification for going

behind the actual wording of the statute in order to consider the problem that the particular

statute was aimed at remedying. At one level it is clearly the most flexible rule of interpretation,

but it is limited to using previous common law to determine what mischief the Act in question was

designed to remedy. The case itself concerned a dispute about legislation passed under Henry VIII

in 1540 and a legal action against Heydon for intruding into certain lands in the county of Devon.

An example of the use of the mischief rule is found in the case of Corkery v Carpenter (1951). In

1951 Shane Corkery was sentenced to one month's imprisonment for being drunk in charge of a

bicycle in public. At about 2.45 p.m. on 18 January 1950, the defendant was drunk and was

pushing his pedal bicycle along Broad Street in Ilfracombe. He was subsequently charged under

section 12 of the Licensing Act 1872 with being drunk in charge of a carriage. The 1872 Act made
no actual reference to bicycles. The court elected to use the mischief rule to decide the matter. The

purpose of the Act was to prevent people from using any form of transport on a public highway

whilst in a state of intoxication. The bicycle was clearly a form of transport and therefore the user

was correctly charged.

4.2d The purposive approach This approach has emerged in

more recent times. Here the court is not just looking to see what the gap was in the old law, it is

making a decision as to what they felt Parliament meant to achieve. Lord Denning in the Court of

Appeal stated in Magor and St. Mellons Rural District Council v Newport Corporation (1950), ‘we

sit here to find out the intention of Parliament and of ministers and carry it out, and we do this

better by filling in the gaps and making sense of the enactment by opening it up to destructive

analysis’. This attitude was criticised on appeal by the House of Lords. Lord Simmons called this

approach ‘a naked usurpation of the legislative function under the thin disguise of interpretation’.

He went on to say that ‘if a gap is disclosed, the remedy lies in an amending Act’.

These comments highlight one issue with the purposive approach. How Parliament's intentions

can be determined and whether judges should really be refusing to follow the clear words of

Parliament. The purposive approach is one used by most continental European countries when

interpreting their own legislation. It is also the approach which is taken by the European Court of

Justice in interpreting EU law. Since the United Kingdom became a member of the European

Economic Community in 1973, the influence of the European preference for the purposive approach

has affected the English courts in a number of ways. First, the courts have been required to accept

that, from 1973, the purposive approach has to be used when deciding on EU matters. Second, as

they use the purposive approach for EU law they are becoming accustomed to using it and more

likely to use it to interpret domestic law. One example is Pickstone v Freemans plc (1998). Here,

women warehouse operatives were paid the same as male warehouse operatives. However, Miss

Pickstone claimed that the work of the warehouse operatives was of equal value to that done by
 male warehouse checkers who were paid £1.22 per week more than they were. The employers

argued that a woman warehouse operative was employed on like work to the male warehouse

operatives, so she could not bring a claim under section 1(2) (c) of the 1970 statute for work of

equal value. This was a literal interpretation of the 1970 statute. The House of Lords decided that

the literal approach would have left the United Kingdom in breach of its treaty obligations to give

effect to an EU directive. It therefore used the purposive approach and stated that Miss Pickstone

was entitled to claim on the basis of work of equal value even though there was a male employee

doing the same work as her. When using one of the rules of statutory interpretation the courts may

rely on a presumption or secondary aids to assist them in making their decision.

4.2e Presumptions When determining the meaning of particular words

the courts will make certain presumptions about the law. If the statute clearly states the opposite,

then a presumption will not apply and it is said that the presumption is rebutted. The main

presumptions are: 1. A presumption against change in the common law. It is assumed that the

common law will apply unless Parliament has made it plain in the Act that the common law has

been altered. 2. A presumption that mens rea (‘guilty mind’) is required in criminal cases. Mens rea

is one of the elements that has to be proved for a successful criminal prosecution. There is a

common law rule that no one can be convicted of a crime unless it is shown they had the required

intention to commit it. 3. A presumption that the Crown is not bound by any statute unless the

statute expressly says so. 4. A presumption that a statute does not apply retrospectively. No

statute will apply to past happenings. Each statute will normally only apply from the date it comes

into effect. This is, however, only a presumption and Parliament can choose to pass a statute with

retrospective effect. This must, however, be expressly stated in the

statutes, for example, the 1965 War Damage Act, the 1991 War Crimes Act and the 1976 Adoption
Act. The secondary aids are rules of language, intrinsic and extrinsic aids. These will be covered in the
following section
Que13. Codifying statutes.
Ans_ Codifying statutes is the process of organizing and grouping a jurisdiction's laws and
regulations into a legal code or set of codes. The objective is to simplify the complexities of
legal systems, making the law more accessible and user-friendly. This involves collecting
existing laws, arranging them by specific topics, and ensuring that they are written in a clear
and standardized way. By creating a single source of information, codification streamlines
legal research, enhances readability, and promotes uniformity within the legal system.

The process of codification involves the methodical organization of an entire body of law
pertaining to a specific field, with the aim of presenting it in the form of principles and
regulations. In essence, it entails transforming oral laws into written statutes. This procedure
encompasses gathering, compiling, and systematically arranging legal provisions.
Furthermore, it establishes explicit rules in a concise and unambiguous manner while
amalgamating customary law, case law, and statutory law into a cohesive framework.
Ultimately, codification serves as a tool to direct judges towards adhering to well-defined legal
guidelines.

Legal codes are essential tools for legal professionals, judges, policymakers, and the public.
They provide a comprehensive overview of the laws governing a particular jurisdiction at the
federal or state level. Examples include the Indian Penal Code, Civil Procedure Code, United
States Code (USC) for federal laws and state-specific legal codes, such as the California Codes
or the Revised Code of Washington. Codified statutes are important for legal analysis as they
enable attorneys to easily locate and reference specific legal provisions, allowing them to
make arguments, conduct research, and provide legal advice more effectively.

Codified statutes are not static; they require regular updates to remain relevant and accurate.
Legislative amendments are made to reflect changes in the law. These updates are crucial to
ensure that the legal code stays in sync with evolving societal needs and expectations.
Additionally, codification helps reduce the risk of conflicting or contradictory laws within the
legal system, contributing to a more coherent and efficient legal framework. Legislative bodies
or government agencies typically oversee the process of codification.

International legal systems also employ codification. Some countries adopt comprehensive
legal codes, such as civil codes or criminal codes, to govern specific areas of law. Other legal
systems rely on a mixture of written, unwritten, or both. However, irrespective of the
approach taken, modern legal systems cannot do without codification of statutes, which
contributes towards making the law readily understandable, provides uniformity within the
same area, and simplifies the execution of laws in this century. Indian Laws are codified
whereas Laws of the United Kingdom are not codified.
Advantages of Codification of Laws:

The codification of laws or enactment of legislation brings about a sense of certainty and
amalgamates various regulations into a cohesive and unified legal framework.

It fosters coherence within the law by ensuring its comprehensiveness.

This process facilitates easy accessibility to the law for individuals seeking knowledge on legal
matters.

It plays a pivotal role in enhancing the efficiency and effectiveness of judicial administration.

Legislative action contributes to maintaining stability within the realm of law.

Disadvantages of Codification of Laws

When laws get put into code, they become stiff. This can make it hard for them to change
alongside shifting situations.

When you put laws into code, it can stifle their growth, causing them to become stagnant.

A code for law can't meet every need; new issues pop up all the time.

People who break these laws can twist the words in the code to their benefit with different
meanings.

Putting laws into code can place too much focus on exact words instead of the real spirit of the
law.

Difference between Codified and Uncodified Statutes:

Codified and Uncodified statutes represent two distinct approaches to the organization and
presentation of a jurisdiction's laws and regulations. Codified statutes involve the systematic
organization and consolidation of laws into a structured and comprehensive legal code. These
legal codes are typically categorized by subject matter, making it easier to locate and
reference specific provisions.

In contrast, uncodified statutes, also known as uncodified laws or unwritten laws, do not
follow a centralized code format but instead exist in scattered, unstructured forms. They may
be dispersed across various sources, such as legislative acts, judicial decisions, and customary
practices, without a comprehensive organization.

The primary difference lies in the degree of organization and accessibility: codified statutes
provide a centralized and user-friendly legal reference, while uncodified statutes are
dispersed and often require extensive legal research to navigate.

Codified statutes facilitate legal research and ensure clarity and uniformity in the language
used. They serve as fundamental references for legal professionals, judges, policymakers, and
the public, making the law more accessible and understandable.

Uncodified statutes, on the other hand, can be scattered across multiple sources and can lack
a systematic organization. They may include a mixture of statutory laws, common law
principles, and historical legal practices. Accessing and comprehending uncodified statutes
often demands extensive legal research and interpretation, as the laws are not compiled in a
centralized and structured manner.

The choice between codified and uncodified statutes is a fundamental aspect of a legal
system's organization and determines how accessible, user-friendly, and coherent the law
appears to those who interact with it.

Que14. Marginal notes.

Ans_ Marginal notes are inserted at the side of the sections in an Act and express the effect of the
sections stated. In the past, the marginal notes were also referred to as aid to construction, but now as
per majority Opinion, they are not considered to be helpful. The reason is that in most of the cases the
marginal notes are inserted by draftsmen and not by Legislators and not even under the instructions
of Legislature. In other words, marginal notes are not enacted part of the statute and are mostly
subsequently inserted to summarize the section and as such, they do not carry authority of law for
interpreting any statutory provision.

Definition of Marginal Notes:

According to LORD REID, marginal notes cannot be used a said to construction. A side note is a poor
guide to the scope of a section for it can do no more than to indicate the main object with which the
section deals.
LORD UPJOHN observed that a side note is a very brief precis of the section and therefore forms as
most unsure guide to construction of enacting section.

Case Laws On Marginal Notes

Cases in which marginal notes have been used for legislative interpretation (e.g. R v. A.D.H., 2013
SCC 28) but this is not uniformly the case. For example, in Imperial Oil Ltd. v. Canada; Inco Ltd. v.
Canada, 2006 SCC 46, it says at paragraph 57 although marginal notes are not entirely devoid of
usefulness, their value is limited for a court that must address a serious problem of statutory
interpretation.

These notes applied to the section cannot be used for interpreting the section. However, when words
are ambiguous, marginal notes are relevant factor to be taken into consideration while interpreting
the ambit of the section mentioned in case Shree Sajjan Mills Ltd v. CIT, (1985) 156 ITR 585 (SC). As
held in CIT v. Ahmed Bhai Umar Bhai Company HJR 1950 SC (134,141) marginal notes applied to the
section cannot be used for construing the section.

In Uttam Das Chela Sunder Das v. SGPC AIR 1996 SC 2133, it was observed that:

Marginal notes or captions undoubtedly, part and parcel of legislative exercise and the language
employed therein provides the key to the legislative intent. The words employed are not mere
surplusage.

Marginal note is legislative and not editorial exercise, C Bhagirath v. delhi Admn AIR 1985 SC 1050.
It gives an indication as to what was exactly the mischief that was intended to be remembered and
throws light on the intention of legislature. It is a relevant factor to be taken into consideration in
construing the ambit of the section. However with respect to Constitution, marginal notes appended to
the Articles have been made use of in interpreting the articles. Marginal notes can be used to
understand the legislative intent, but cannot limit or restrict the clear word used in a section.

In Balraj Kumar v. Jagatpal Singh, LORD MACHNAGHTEN observed that marginal notes to a
section of an Act of parliament cannot be referred to for the purposes of construing the Act. The
opinion that marginal notes can be used for interpretation had originated by mistake and has been
exploded long ago.

In Commissioner of Income Tax, Bombay v. Ahmedbhai Umarbhal and Co. Bombay, JUSTICE
PATANJALI SHASTRI observed that marginal notes cannot be referred to for the purpose of
constructing the statute.
In Tara Prasad Singh v. Union of India, it was held that marginal notes to a section of the statute
cannot take away the effect of the provisions.

In Guntaiah v. Hambamma, Karnataka Land Revenue Amendment Rules, 1960 were in question .It
was held that in the title to Rule 43-G, it is stated that the grants of lands under preceding rule shall
be subjected to the following conditions, This title to the rules as such cannot be taken as the key
words to interpret rule 43-G. They have got the effect of only marginal notes. The marginal notes are
not considered as legitimate aid to construction of any section or rule. The side notes are not
considered as a part of Act.

In exceptional cases the legislators themselves insert the marginal notes. The marginal notes so
inserted by the legislators are considered to be a part of enactment and can be legitimately used as aid
to construction of that section, in the margin of which they are printed.

In Bengal Immunity Co. Ltd. v. State of Bihar, it was held that the marginal noted appended to
Article 286 of the constitutions of India are part of the constitution because they prima facie furnish
some clue to the meaning and purpose of the Article. Thus the marginal notes appended to Articles of
Constitution have been held to constitute a part of constitution as passed by constituent Assembly and
therefore have been used in construing the Articles of the constitution.

Use of Marginal notes for resolving ambiguity

In Anwarul Haq v. State of U.P, Section 324 of Indian Penal Code, 1860 provides that:

whoever, except in the case provided for by Section 334, voluntarily causes hurt by means of any
instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is
likely to cause death, or by instrument which used as a weapon of offence, is likely to cause death, or
by means of fire or any heated substance, or by means of any explosive substance or by means of any
substance which is deleterious to human body to inhale, to swallow or to receive into the blood or by
means of animal shall be punished with imprisonment of either description for a term which may
extend to three years or with a fine or with both.

The expression any instrument which, used as weapons of offence, is likely to cause death was in
question before, used as a weapon of offence, is likely to cause death was in question before the
Supreme Court . The Marginal Note says voluntary causing hurt by dangerous weapons or means.
It was held that this expression should be construed with reference to the nature of instrument. This
section prescribes a severe punishment where an offender voluntarily causes hurt by dangerous
weapon or by other means stated in section. This expression when read in the light of marginal note of
Section 324, means dangerous weapon which if used by the offender is likely to cause death.

Limitations of Marginal notes as internal aid to construction:

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

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

Marginal notes cannot be resorted to for construing a provision if the word of that provision are
sufficiently clear, plain and precise and give out only one meaning.

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

Marginal notes cannot control the plain meaning of words of the enactment.

Marginal notes can be used for interpretation of that section only to which they are appended. In other
words, the Marginal Notes of one section cannot be used to interpret another section.

Marginal notes cannot frustrate the effect of a clear provision

Que15. Doctrine of Territorial Nexus

Ans_ I
The term federalism means the division of powers between the centre and state. It is a very
complex mechanism though it is the very purpose for which a federal state is formed includes the
distribution of powers between the union and the centre. Their power is partitioned by the
constitution so that they should their independence over the executive and legislative authority.
As our constitution is of federal structure it establishes dual polity between the union and state.
They are conferred with the sovereign powers which are to be used in a manner directed by the
Constitution. Our constitution is of is the supreme law of the land provides the basic meaning of
federalism that is the division of powers.

Territorial nexus
Under article 245 of the Indian constitution, it has been stated that:
 1. Parliament has jurisdiction to make laws for extraterritorial operations or laws for the
whole or any part of the country.
2. The state legislature has the jurisdiction to make laws for the whole or any part of the
state.
Thus it can be said that both the union and the state have their own territorial jurisdiction to make
laws.

Under article 246 it has been stated,

1. Parliament has the explicit power to make laws for the subject matters enumerated in
the union list (list I of the 7th schedule)
2. The state has the power to make laws for the subject matter enumerated in the state
list(list II of the 7th schedule)
3. Both the state and the union have the power to make laws for the subject matter
enumerated in the concurrent list(list III of the 7th schedule)
Under article 245(2) of the Indian constitution, if any law is made by the parliament regarding the
extraterritorial operations, no questions can be raised on its validity. Thus the validity of a
legislation can’t be questioned. In this case, a court is bound to enforce the laws made with regards
to extra-territorial operations. This legislation can’t be invalidated.

Legislative relation between the centre and

state
The legislative powers are distributed in two ways which are provisioned by the
constitution.

 Distribution of legislative powers in respect of the territory

 With respect to the subject matters of the list under 7th schedule

 Distribution of the legislative

powers with respect to the territory
 As enshrined under article 245(1) of the Indian constitution parliament can make laws for
the whole or any part of the territory of India. Parliament also has extra-territorial
jurisdiction for which it can make laws and these laws can’t be invalidated on the grounds
that they have no effect outside India.

 In the case of A.H. Wadia v. Income Tax Commissioner it was held that a question of
extraterritoriality of enactment can never be raised against a supreme legislative authority
on the grounds of questioning its validity. It may not comply with the rules of international
law or while enforcing it practical difficulties may arise but they are subjected to questions
of policy which is the concern of the national or domestic tribunal.
Theory of territorial nexus
In order to give effect to the laws made by a state for extraterritorial purpose, a nexus between the
object and state must be shown. The state legislature has the jurisdiction to make laws within its
territorial jurisdiction. Territorial nexus is one such exception which allows the state to make laws
for extraterritorial operations if it shows that there exists a nexus between the object and the state.

 Wallace Bros. And Co. Ltd. vs The Commissioner Of Income

In the instant case, a company which was registered and incorporated in also which also carried
out its business in India through a sleeping partner. The firm made a staggering profit in that
accounting year. The income tax authorities sought to levy a tax upon the company of the
respondent. The income tax authority was challenged by the respondent, but it was held by the
privy council that there existed the doctrine of territorial nexus and held the tax valid. It is said
that the major part of that income was extracted from British India was the sufficient ground to
establish a territorial nexus.

Territorial Nexus and the State Legislature

Our Constitution confers the power upon the state to make laws within its territorial jurisdiction

Now a question on whether a law falls under the ambit of the state legislature enacting it.

The state legislature is empowered to make laws for its own purpose. The doctrine of territorial
nexus is only applicable when the following conditions are fulfilled. Those conditions are as follows;

1. The nexus must be legitimate.

2. The liability shall be related to the territorial connection.
These conditions are sufficient enough to show that the nexus was legitimate and the court would
not question its validity. In several cases of the taxation law it has been held that the territorial
limits of a state would not hamper the sale and purchase of the goods. Buying and selling of goods
would be a reasonable ground to sustain the taxing power of the state.

What do you mean by Extra-Territorial

Operations?
Parliament is conferred with the power to make laws within its territorial jurisdiction and also for
extra-territorial purpose that has a legitimate nexus with India. Legislation or laws regarding this
matter come under the ambit of the parliament as it has the power to do so. These laws can’t be
questioned on its validity. If the parliament enacts any law which doesn’t establish any nexus with
India will turn out to be ultra vires and would be considered as the laws made for a foreign land.

This can be concluded that if any law passed by the parliament has a real connection with India
can’t be deemed to held as invalid or unconstitutional. If such laws enacted by parliament
establishes no nexus with India would be ultra vires.

Our constitution states that the legislative powers conferred upon the parliament in order to enact
laws within the territorial jurisdiction as well as for the purpose may take the cognizance of the
extraterritorial purpose and exercise the state powers or the collective powers Doctrine of public
trust states that all the laws enacted by parliament with respect to extraterritorial operations shall
be enacted for the purpose of safeguarding the welfare and security of India, which directly
concludes that no laws shall be made for the extraterritorial operations if there is no nexus of such
law or legislation with India.

The role of territorial nexus in Indian

Legislation
As it has been stated before in this article that Article 245 of the Indian constitution states the
extent to which the legislative powers are conferred in parliament and the state legislature in order
to make laws with respect to the territory. Parliament has the power to make laws for the for which
it has the jurisdiction. The jurisdiction of parliament extends to the whole or any part of India. They
can also be enacted by the parliament for extraterritorial operations if there is sufficient nexus of
the law with India. These laws cannot be questioned or held invalidated. However, all the laws
must comply with the provisions of the Indian constitution.

The powers conferred in parliament are not absolute. Laws made by the parliament for
Extraterritorial operations are for the purpose of operating outside the geographical limits of India.
The state legislature doesn’t have the power to make laws for extraterritorial operations. However,
this limitation of the state legislature is subjected to one exception and that is territorial nexus. If
it is established that there is sufficient connection with the object and the laws enacted by the state
legislature will have an effect outside the territorial limits of the state.

The following circumstances are required in order to invoke the jurisdiction of territorial nexus-

 If there exist extraterritorial operations in a state

 If there is legitimate nexus between the object and the state. It should be clear that the
object shall be situated outside the territorial limits of the state but it must have a
territorial connection with the state.
State of Bombay vs R.M.D. Chamarbaugwala

In the instant case, the respondent who was not a resident of Bombay conducted a prize competition
of a crossword puzzle through a newspaper which was printed and published in the Bangalore. This
paper was widely published in Bombay to. For this competition depots were established so that the
forms and fees can be collected. It attracted a lot of buyers for the ticket of that competition.

The state government then levy take over the respondents company for contesting a prize
competition in the state. The respondent challenged the supreme court and a question was raised
whether the tax can be levied upon a person who resides outside the territorial limits of the state.
It was held by the supreme court that there was a sufficient territorial nexus and the legislature
has the authority to tax the respondent for the revenue earned by his company through the prize
competition.

Tata Iron And Steel Company vs. Bihar State Tax Act

The state of Bihar passed sales tax act for levying a tax in on the sales whether it took place within
the territorial limits of the state or outside of that limit, it was also stated that the goods should be
manufactured in the state. In the instant case, it was held that there was an established nexus
between the object which was to be taxed and the law. These are the two essential elements that
constitute the doctrine of territorial nexus.

State of Bihar v. Charusila Dasi

In the instant case, the state of Bihar passed a legislation which dealt with the motive to safeguard
the properties relating to the Hindu religious trusts. This act consists of all the trusts within the
territorial limits of Bihar. So the respondent Madea trust deed several of her properties in situated
in Bihar and Calcutta, and the trust was inside the territorial limits of Bihar. Several questions
were raised about the scope of this act.

It was held that the act passed by the state of Bihar could have the effect over the property situated
outside the territorial limits of Bihar keeping in mind that the trust must be situated with the limits
of the state and there exist the sufficient nexus.

Shrikant Bhalchandra Karulkar v. State of Gujarat

The hon’ble supreme court in this instant case of Shrikant Bhalchandra Karulkar v. State of
Gujarat held that the state legislature is conferred with the power to enact legislation for extra-
territorial operations complying with the provisions enshrined under article 245 and 246.The laws
made by the state legislature is applicable to a person and his acts within the territorial limits of a
state is not considered as extra territorial.

Conclusion
It can be concluded that the legislative powers has been distributed in two folds between the centre
and state. Federalism is a very complex mechanism though it is the very purpose for which a federal
state is formed includes the distribution of powers between the union and the centre. Their power
is partitioned by the constitution so that they should their independence over the executive and
legislative authority.

As our constitution is of federal structure it establishes dual polity between the union and state.
Parliament has the power to make laws for any or whole part of India as well is conferred with the
power to make laws for extra territorial operations.however, a state legislature is not competent
enough to make laws for the extraterritorial operations. However there is one exception which
enables the state legislature to make laws for the extra territorial purposes if there exists a
sufficient connection between the object and the state. It means that the object shall be located
outside the territorial limits of the state and has a territorial connection with the state. The scope
of territorial nexus is wide and can be applied outside the territorial limits of India. The doctrine of
territorial nexus allows the effect of law out the territorial limits of a nation.

Que16. Mischief rule.

Ans_ I
Interpretation in its most general sense can be understood as synonymous with explanation. That
being said one has to understand why interpretation is necessary in the legal realm and the legal
meaning attached to the word “interpretation”. It is to note that irrespective of the fact that the law
can be codified or un-codified, the intention behind interpretation of such law remains the same that is
to bring uniformity and the responsibility of doing so falls to the judiciary. Application of judicial mind
is of utmost importance in this regard but then again question of to what extent such application of
judicial mind is desirable or permissible needs to be scrutinized carefully. Answering the second
question of what is the legal meaning attached to the word “interpretation”, it is to assert that there
isn’t a single exhaustive definition which will truly encompass the true essence of interpretation in the
legal realm. Renowned Jurist Salmond aptly said that: “by interpretation or construction is meant, the
process by which the courts seek to ascertain the meaning of the legislature through the medium of
authoritative forms in which it is expressed.”2 This definition by Salmond

THE MISCHIEF RULE

essentially draws out two of the most important characteristics of interpretation: A. It is the tool to
ascertain, clarify, and explain the legislative intent behind a particular law. B. The nature of
interpretation has a binding element to it which flows from the court’s authority in this juncture.
There are a plethora of rules that the courts are entitled to follow while interpreting law and mischief
rule is one of the trickiest if not the trickiest among them all.

II. WHAT IS “MISCHIEF” RULE OF INTERPRETATION? Before analyzing, understanding the

“mischief” rule let us first deal with the question of under what circumstances can mischief rule be
applied by the courts as a means of interpreting the law or in other words the applicability and extent
of mischief rule. To answer such question one has to clearly realize one of the very basic principles of
“interpretation”. In this regard let us stress upon the principle of separation of power which
essentially compartmentalizes the three wings of government, i.e., executive, legislation and judiciary.
Thus, it is quite evident that legislation is supposed to make the law and the judiciary is supposed to
ensure the due process of law. This might be confusing as judiciary is not supposed to make laws and
therefore prima-facie the rationale of entrusting them to interpret the law made by the legislation
which the legislation is supposed to do at the first place will seem dicey if not essentially vague. The
author will like to remind the readers that it is indeed not the work of the judiciary to make laws and
even interpret them but sometimes certain situations arise where it becomes unavoidable to not
interfere with the activities of legislation. This kind of situation arises when a particular law is
ambiguous, vague or has failed to keep up with time and therefore needs the judicial intervention to
remain contemporary and it is in this backdrop that the courts are bestowed with the sacrosanct duty
of interpreting laws and as a consequence of such make new laws as and when required. The Hon’ble
courts while discharging its primary objective of ensuring due process of law merely reassert and
confirm the legislative intent; this bare reading of laws is known as literal interpretation and is
considered to be the “grundnorm” or the default rule. Therefore it is conclusive that the applicability of
mischief rule of interpretation only arises in those cases where legislation has failed to duly discharge
their duties. Mischief rule of interpretation is a

discretionary power that the courts enjoy and use to intervene in the jurisdiction of legislation as a
last resort to clarify and mold the legislative intent to bring out the true essence of such legislation
and thereby to meet the ends of justice and thus must not be mistaken as a default rule of
interpretation or a mandate on the court’s part. In the case of Re Sussex Peerage it was held that the
mischief rule should only be applied where there is ambiguity in the statute.3 After having a basic
understanding of the applicability of mischief rule of interpretation, now let us understand the extent
of application of such rule. In this regard the Hayden case (1584) acts as the supreme authority. The
Hayden’s case reported by Lord Coke and adjudicated by the Barons of the Exchequer laid down the
four following rules which the Hon’ble courts are needed to take into consideration before applying the
mischief rule of interpretation: “That 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 considered –
1) What was the common law before the passing of the Act? 2) What was the mischief and defect for
which the common law did not provide? 3) What remedy the Parliament hath resolved and appointed
 to cure the “disease of the Commonwealth”. 4) The true reasons for the remedy.”4 III. INDIAN
COURTS AND APPLICATION OF “MISCHIEF” RULE OF INTERPRETATION Examples of
application of “Mischief” rule of interpretation by the Indian Judiciary in all honestly are abundant.
The Hon’ble Indian courts in a plethora of cases while dealing with several aspects of law have relied
on the mischief rule of interpretation. To understand the jurisprudence involving the mischief rule
developed by the Indian courts in a better way the author will like to observe, analyze and comment
on the interpretation of the word “wife” in reference to Sec 498A IPC and Sec 125 Crpc. Interpretation
of “wife” The question of who is a “wife” under section 498A of IPC has sparked much debate and as a
matter of fact has divided our judiciary. In this regard it is important to understand both the contrary
views of the Hon’ble apex court. The first view came in the case of Shivcharan Lal

Verma And Anr. vs State Of Madhya Pradesh5 (2002) where the three judge bench of the Hon’ble
Supreme court comprising Ld. Justices G Pattanaik, S Phukan, S Variava concluded that the second
marriage of a Hindu male while his first marriage is still subsisting, is null and void and thus the
statuses of “wife” and “husband” can’t be attributed to such marriage and thus a case of cruelty which
is in connection to the second marriage, under sec 498 of IPC must fail. In this context it is important
to realize the nature of marriage under the Hindu law. Hindu Jurisprudence views marriage as a
sacrosanct, an eternal bond which can’t be dissolved at all cost. I am of the opinion that this
institutional approach towards marriage influenced the Hon’ble Supreme court’s judgment in the
Shivcharan Lal Verma’s case. But one has to remember that even with this much strong
institutionalized beliefs towards marriage the Hindu jurisprudence also provided us with certain
grounds for dissolution of marriage, such as incident of desertion which later on got enlarged with the
enactment of Hindu Marriage Act, 1955. Without going into the depth of Hindu marriage Act and the
statutory provision for divorce under such act I will like to argue that this diluted the
institutionalized, sacrosanct nature of marriage and this premise is important for the next part of
discussion. The next part of the discussion will focus on the legislative intent behind the incorporation
of sec 498A in the IPC. The legislative intent was to protect married women from getting physically,
mentally harassed, tortured, and tormented by their husband or relative of their husband. The
provision intended to prevent the horrific abuses that a woman has to face in her matrimonial house
and thereby prosecute the abusers as domestic violence against women in India was rising in an
exponential rate. This coupled with the fact that the concept of marriage as an institution has been
diluted with the advent of Hindu Marriage Act, 1955 which effectively consolidated, codified the
common law jurisprudence of the Hindu’s called for a more rational, radical change. The Hon’ble
supreme court answered such call in the case of Reema Agarwal V Anupam6 (2004) opining that: “If
such restricted meaning is given, it would not further the legislative intent. On the contrary, it would
be against the concern shown by the legislature for avoiding harassment to a woman over demand of
money in relation to marriages. The first exception to Section 494 has also some relevance. According
to it, the offence of bigamy will not apply to "any person whose marriage with such husband or wife
has been declared void by a court of competent jurisdiction". It would be appropriate to construe the
expression "husband" to cover a person who enters into marital relationship

and under the color of such proclaimed or feigned status of husband subjects the woman concerned to
cruelty or coerces her in any manner or for any of the purposes enumerated in the relevant provisions,
whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498-A and 304-B
Indian Penal Code.” Such an interpretation, known and recognized as purposive construction has to
come into play in. The absence of a definition of "husband" to specifically include such persons who
contract marriages ostensibly and cohabit with such woman, in the purported exercise of their role
and status as "husband" is no ground to exclude them from the purview of Section 304-B or 498-A
Indian Penal Code, viewed in the context of the very object and aim of the legislations introducing
those provisions.7 I am of the opinion that this rationale is a beautiful example of the application of
the mischief rule to analyze and mold the legislative intent to deal with the contemporary societal
issues and therefore even being a division bench judgment, must carry higher importance value than
that of the precedent laid down by the larger bench in the case of Shivcharan Lal Verma. The Hon’ble
courts of India once again stumbled upon this very question of who is a wife while dealing with sec 125
of CrPC. Similar to that of the debate sparked by the same question in connection of sec 498A of IPC
but unlike that of the apparent contradicting interpretations of Sec 498A by the Hon’ble supreme
court, the development of liberal jurisprudence revolving sec 125 of Crpc has been rocky yet a steady
one. The groundbreaking step of applying mischief rule of interpretation began with the case of Mohd.
Ahmed Khan v Shah Bano Begum & ors8 (1985). Ld. justice Y.V. Chandrchud observed in this case
that: “Section 125 was enacted in order to provide a quick and summary remedy to a class of persons
who are unable to maintain themselves. What difference would it then make as to what is the religion
professed by the neglected wife, child or parent? Neglect by a person of sufficient means to maintain
these and the inability of these persons to maintain themselves are the objective criteria which
determine the applicability of section 125. Such provisions, which are essentially of a prophylactic
nature, cut across the barriers of religion. The liability imposed by section 125 to maintain close
relatives who are indigent is founded upon the individual’s obligation to the society to prevent
vagrancy and destitution. That is the moral edict of the law and morality cannot be clubbed with
religion.”9 . This rationale again satisfies and qualifies the ground rules laid down by the Hayden’s
case. The court clarified the legislative intent behind sec 125 of CrPC which is to ensure the survival of
such persons who are unable to maintain themselves. The socio-economic condition of that period would indicate a
strong patriarchal society. Further the author will vehemently argue that the common law jurisprudence attributable
to the Muslims indeed didn’t provide any such remedy to a divorced woman to claim for maintenance and thus the
court’s stand to acknowledge the absence of any remedy in the common law and to extend the remedy given by the
parliament to all women irrespective of their religion must be appreciated. The Hon’ble apex court further in the
case of Pyla v. Pyla Suri (2011) held that “marriage” for the purpose of sec 125 of CrPC need not be a “de-jure
marriage” rather a “de-facto marriage” will vest a woman with the status of “wife” and thereby enabling her to seek
maintenance from her husband. This was meant to protect women from ‘false denial of marriage’ by husbands with
a view to wriggle out of liability to pay maintenance.10 In the same line of thinking the Hon’ble Supreme court once
again asserted and reaffirmed that the interpretation of the word “wife” under sec 125 of Crpc must and does
encompass such cases where there is concealment of fact of first marriage from the second wife and she has been
deceived into believing that she is the first wife. 11

IV. CONCLUSION It will not be an exaggeration to claim that mischief rule of

interpretation helps to gap the bridge between judiciary and legislation, if any. While this rule of interpretation has
immense potential, the courts have to honour its limitation more than its applicability as to ensure that they don’t
over-step. The author will further like to remind the readers that this rule of interpretation must be acknowledged as
a preventive, defensive measure to certain justice to the aggrieved party; upon legislation’s failure to discharge its
duty. To sum up and to conclude two premises need to be realized extensively: 1. Mischief rule is not the default rule
on interpretation rather one of the discretionary powers of the courts. 2. That the courts have a legal duty to apply
mischief rule of interpretation to suppress any “mischief” for which common law hasn’t given a remedy and thereby
extending the remedy given the parliament for such purpose.

Que17. Doctrine of Eclipse

Ans_ I

The doctrine of eclipse under Indian laws is a legal doctrine that states that any existing law

which is inconsistent with fundamental rights does not completely become invalid. It can be made

valid if appropriate amendments are made to the Constitution of India, 1950, making that

impugned law in sync with the fundamental rights. This doctrine rests on the premise that

fundamental rights are prospective. Thus, any pre-Constitutional law which violated fundamental

rights would not become void because at the time of the creation of that law, the fundamental

rights of the Constitution of India, 1950 was not in existence. However, questions have arisen as

to whether this doctrine becomes applicable to post-Constitutional laws as well, all of which has

been addressed in this article.

The doctrine of eclipse and the Indian

Constitution
This doctrine is related to Article 13 of the Indian Constitution which talks about laws
inconsistent with or in derogation of fundamental rights. Article 13(1) states that any existing law
in force before the start of the Constitution within the territory of India which goes against or is
inconsistent with fundamental rights, present in Part III of the Indian Constitution, becomes void
to the extent of such inconsistency. Further, Article 13(2) states that any new law becomes void
the moment it comes into violation of fundamental rights, to the extent of such violation. These
provisions are directly in consonance with the doctrine of severability. This doctrine states any
provision of a statute which is against the Constitution will be severed from that act and will be
considered void to that extent only. Thus, the courts can declare that provision, instead of the
entire act, void. However, Article 13(4) states that Article 13 does not apply to constitutional
amendments. This implies that if any constitutional amendment law gets passed that takes away
certain fundamental rights or is in violation of them, those laws, although inconsistent with the
rights, is not void.

Origin and evolution of the doctrine of eclipse

After the passing of the Indian Constitution, numerous existing laws could be challenged for being
in contravention with fundamental rights and could be challenged in courts. Likewise, judicial
review has played a huge part in establishing the doctrine of eclipse. While Bhikaji Narain
Dhakras and Ors v. State of Madhya Pradesh (1955) was the case where this legal doctrine was
formally pronounced by the Supreme Court judges, the doctrine was used in principle in certain
other previous cases.

The first case where traces of the origin of this doctrine can be found is Keshava Madavan Menon
v State of Bombay (1951). In this case, the appellant had a case against himself under Indian
Press (Emergency Powers) Act, 1931 with regards to a pamphlet published in 1949. The appellant
contended that such a case could not be constituted against him because that pamphlet aligned
with the right to freedom of speech and expression are given in Article 19(1)(a). The Court opined
that because at the time when the pamphlet was published, fundamental rights of the Indian
Constitution did not exist. Thus, the appellant could not claim to have them. This case thus
established that fundamental rights did not have retrospective but only prospective application.
In the case of Article 13(1), the Court held that it was prospective and not retrospective, especially
since any statute is prospective, unless specifically stated otherwise. Because the language of this
article does not imply any kind of retrospective application, the same could not be assumed. This
opinion was reiterated in the case of Pannala Binaraj v. Union of India (1957).

The next important case, which spoke about the nexus between Article 13(1) and the validation of
pre-Constitutional laws infringing on fundamental rights was Behram Khurshid Pesikaka v. State
of Bombay (1955). Here, the appellant was accused under Section 66(b) of the Bombay Prohibition
Act, 1949. This section spoke about driving under the influence of alcohol. The appellant used the
case of State of Bombay and Anr v. F.N. Balsara (1951) where Section 13(b) of the Act was
declared to be void to the extent of its application to the use of alcoholic medicinal and toilet
preparations because the same was violative of fundamental rights in Article 19. By
extrapolation, the appellant contended that Section 66(b) should also be considered void insofar as
alcoholic medicinal and toilet preparations were concerned.

The Supreme Court judges initially held that the Balsara case did not repeal or amend the
section. But in reference to a larger constitutional bench, the majority opinion held that the
section was “notionally obliterated” from the statute for the determination of rights and
obligations of the citizens. It was further held that the ruling in Balsara was a good defence to a
charge under Section 66(b) in relation to alcoholic medicinal and toilet preparations. It was for the
prosecution to prove that the accused was driving under the influence of any prohibited alcohol
other than alcoholic medicinal preparations and for the accused to prove otherwise.

Salient features of the doctrine of eclipse

Pre-constitutional law
The Doctrine of Eclipse applies to laws that were enacted before the commencement of the Indian
Constitution. These laws are commonly referred to as “pre-constitutional laws.” They may have
been in existence and enforced during the colonial period or under previous constitutional
arrangements. When the Constitution came into effect in 1950, it brought forth a new legal
framework that established the supreme law of the land. However, there were existing laws that
might have been inconsistent with the newly guaranteed fundamental rights under the
Constitution
Conflict with fundamental rights
it is necessary that a pre-constitutional law directly conflict with the fundamental rights
enshrined in the Constitution. If a pre-constitutional law violates or curtails any of these
fundamental rights, it creates a conflict with the constitutional provisions.

Inoperativeness of law
When a pre-constitutional law is found to be in conflict with fundamental rights, it doesn’t
automatically become null and void. Instead, it becomes inoperative or unenforceable against
citizens whose fundamental rights are affected by the law. In other words, the law loses its legal
efficacy to the extent that it infringes upon constitutional rights. This principle distinguishes the
Doctrine of Eclipse from the Doctrine of Repugnancy, which renders a law wholly void if it is
inconsistent with the Constitution of India.

Potential for future operationality

One of the distinctive features of the Doctrine of Eclipse is that the law, which was earlier
eclipsed due to its conflict with fundamental rights, retains the potential for future operativeness.
If there is an amendment to the relevant fundamental right in the Constitution that removes the
conflict with the pre-constitutional law, the law automatically regains its power and comes into
operation. This means that once the Constitutional impediment is resolved through a
Constitutional amendment, the law becomes fully enforceable again.

It is important to note that the Doctrine of Eclipse aims to maintain a balance between
safeguarding the sanctity of fundamental rights and recognising the continued existence of pre-
constitutional laws. It allows these laws to remain dormant until they can be brought into
harmony with the constitutional framework through appropriate amendments. The Indian
judiciary has employed this doctrine to uphold the supremacy of the Constitution while
recognising the historical context of pre-existing laws.

Bhikaji Narain Dhakras v. State of Madhya Pradesh

The most important case which was responsible for articulating and propounding the doctrine of
eclipse was Bhikaji Narain Dhakras and Ors v. State of Madhya Pradesh (1955). In this case, the
petitioners challenged the constitutional validity of the C.P. & Berar Motor Vehicles
(Amendment) Act, 1947 which amended the Motor Vehicles Act, 1939. The petitioners contended
that the passing of the Indian Constitution rendered the Amendment Act void as it
violated Article 19(1)(g) or the freedom to practise any profession or to carry on any occupation,
trade or business. The Amendment had allowed the Provincial Government to establish a
monopoly over the motor transport business in the state, which the petitioners stated was
violative of the fundamental rights enshrined in the newly minted Indian Constitution of 1950.

The respondents contended that although the Act was initially violative of the Indian
Constitution, after the passing of the Constitution (First Amendment) Act, 1951 and Constitution
(Fourth Amendment) Act, 1955, the inconsistencies were removed through the addition of Article
19(6) and the C.P. & Berar Motor Vehicles (Amendment) Act was functional again. The
petitioners in response categorically stated that the Act had become void pursuant to Article 13(1)
and was considered dead unless re-enacted again.

The petitioners’ claims were however rejected and the arguments of the respondents were
accepted. The following are certain key points from the judgement of the Bhikaji case-

 For starters, the judgement relied on the Keshava case. Further, it stated that the term
“void” in Article 13 meant void to the extent of inconsistency with fundamental rights.
 This implied that the entire operation of the Act did not get stopped. The true effect
of Art. 13(1) was to render an Act, inconsistent with a fundamental right, inoperative
to the extent of the inconsistency. It is overshadowed by the fundamental right and
remains dormant but is not dead.
 This is the doctrine of eclipse. The inconsistency with the fundamental right eclipses the
Act until the inconsistency, hence the eclipse, is removed.
 With the Constitution (First Amendment) Act, 1951 and changes in Clause 6 of Article
19, the provisions of the impugned Act were no longer inconsistent therewith and the
result was that the impugned Act began to operate once again from the date of such an
amendment.

Application of the doctrine of eclipse to the

Indian Penal Code
In the case of P. Rathiram v. Union of India (1994), the constitutional validity of Section 309 of
the Indian Penal Code, which punishes attempts to commit suicide, was questioned. It was ruled
that Section 309 was violative of Article 19 which along with the right to freedom of speech also
gives the right to not speak. Further, it was said that the section was violative of Article 21 which
by extrapolation also gave the right to not live.

This was held to be an invalid finding in Gian Kaur v. State of Punjab (1996). Thus, in essence,
the Rathiram case had eclipsed Section 309 with fundamental rights which got removed by the
Gian judgement.

Application of the doctrine of eclipse to

post-Constitutional laws

While Article 13(1) applies to pre-Constitutional laws, Article 13(2) applies to post-constitutional
laws. An important distinction between these two clauses was drawn up in Deep Chand v. State of
Uttar Pradesh (1959). Here, it was said that while a pre-constitutional continues to exist except to
the extent of inconsistencies with rights given by Part III of the Indian Constitution, no post-
constitutional laws in contravention of Part III can be made and the same if made is void ab
initio. Thus, from the plain reading of Article 13, the doctrine of eclipse cannot apply to post-
Constitutional laws. In Sagir Ahmed v. State of Uttar Pradesh (1954), it was held by the Supreme
Court that any law enacted after the commencement of the Indian Constitution and not protected
by Clause 6 while being in violation of Article 19(1)(g) could not be made valid.
Another important case in this regard is Mahendra Lai Jaini v State of Uttar Pradesh (1963). In
this case, it was authoritatively established that the doctrine of eclipse did not apply to post-
Constitutional laws and the latter could not be automatically revived by Constitutional
amendments. Thus, the impugned act would become void ab initio if its contravention of any
fundamental right as is given in Article 13(2). To give effect to that statute, the Constitution will
have to be amended and the former would have to be re-enacted. This principle was reiterated
in K.K. Poonacha v. State of Karnataka (2010). The main question, in this case, was whether any
act is liable to be declared void on the ground that the same was not reserved for the consideration
of the President and did not receive his assent as per the requirement of Article 31(3) of the
Constitution. It was held that an act did not become nullified just because it did not receive
assent. It remained eclipsed until the irregularity had been removed. In the present scenario,
Article 31 was repealed and thus, the act became revived again.

This doctrine has also been used in other circumstances. For example, in the case of K.P. Manu,
Malabar Cements Ltd v. Chairman, Scrutiny Commt (2015), the Court held that when a person is
converted to Christianity or some other religion the original caste remains under eclipse and as
soon as during his/her lifetime the person is reconverted to the original religion the eclipse
disappears and the caste automatically revives. Further, in the case of UOI & Ors. v. Duli Chand
(2010), the court held that a penalty order upon being stayed would remain eclipsed and not dead.
When the same stay is vacated, from that moment, the penalty would revive on its account.

Difference between doctrine of eclipse and

doctrine of severability

Serial Basis of
Doctrine of eclipse Doctrine of severability
No. differentiation

Renders inconsistent laws or

1 Definition
It allows for uphold valid
provisions inoperative if they
portions of the law while striking
are in conflict with
down the unconstitutional parts;
fundamental rights
the rest of the law remains in
guaranteed by the
effect after it is severable from
Constitution until such
invalid provisions
conflict is resolved.

As per the doctrine of

Under this doctrine, laws are
severability, only the
Nature of not nullified but temporarily
2 unconstitutional portions of the
nullification suspended until brought in
law are nullified, and valid
line with the Constitution.
provisions remain enforceable.

3 Applicability
Applies to pre-constitutional
Applies primarily to post-
laws that are contrary to
constitutional laws.
fundamental rights.
 To protect the rights of
citizens by ensuring the
4 Purpose
supremacy of fundamental
rights over conflicting laws
To maintain the functionality of
laws by removing
unconstitutional parts while
preserving valid provisions.

Once the inconsistency is After the removal of

resolved, the suspended law unconstitutional parts, the
5 Consequence
regains power and again remaining provisions continue to
comes into force. be validly enforced.

Landmark judgements

Bhikaji Narain Dhakras v. State of

Madhya Pradesh (1955)
Facts
In this case, a provision of the C. P. and Berar Motor Vehicle (Amendment) Act, 1947, authorised
the monopoly of the State Government to take over the motor transport business in the Province.
As this was pre-constitutional legislation, this provision was valid, but when the Constitution of
India came into force in 1950, it became void as it was contrary to Article 19 (1) (g) of the
Constitution. Even though the Constitution (First Amendment) Act, 1951, added clause 6 to
Article 19, so as to authorise the government to monopolise any business, the constitutional
validity of the Act was challenged, and the following issues were raised before the Apex Court.

Issues
1. Whether the C.P. and Berar Amendment Act, 1947, which amended the Motor Vehicles
Act of 1939, is constitutionally valid.
2. Whether the effects of the Constitutional Amendments are retrospective or prospective
in nature,

Judgement
The Supreme Court held that this law was merely eclipsed on the ground of violation of
fundamental rights provided under Article 19. As soon as the eclipse is removed by the
Constitution First Amendment) Act, 1951, the law begins to operate from the date of such
removal. The Court further held that Article 19(6) was not retrospective in nature.
Keshav Madhav Menon v. the State of
Bombay (1951)
Facts
In this case, Keshavan Madhava Menon (the petitioner) published a pamphlet without permission
from the relevant authority in September 1949. As a result, he was charged with publishing
unauthorised news sheets and newspapers under Section 15(1) of the Indian Press (Emergency
Powers) Act, 1931. The Constitution of India came into force while the case was pending. He
approached the High Court under Article 226 to question the constitutionality of Sections 15(1)
and 18(1) of the Act because they breached his fundamental rights under Article 19(1)(a), which
deals with freedom of speech and expression.

Issue
Whether a prosecution initiated before the enforcement of the Constitution of India should be
continued despite the fact that the Act in question is unconstitutional due to a violation of
fundamental rights under Article 19(1)(a) and 19(2).

Judgement
The Apex Court held that every statute is prima facie prospective unless it is expressly or by
necessary implication made to have a retrospective operation, and this rule of interpretation
applies equally to the Constitution. The language of Article 13(1) is far from showing any intent to
make it retrospective. Since the article is prospective, the conflict with fundamental rights would
occur as of the date those rights were formed. In this case, the petitioner had no fundamental
right under Article 19(1)(a) when he committed the offence in 1949; therefore, no relief was
granted.

The Court further held these disputed Sections to be void on the ground of violation of
fundamental rights only after the enforcement of the Constitution.

State of Gujarat v. Ambica Mills (1974)

Facts
After the bifurcation of the State of Bombay, the legislature of the State of Gujarat adopted
the Bombay Labour Welfare Fund (Gujarat Extension and Amendment) Act, 1961, which
amended the Bombay Labour Welfare Fund Act, 1953. The 1953 Act was enacted to provide for
the establishment of a fund to finance initiatives promoting the welfare of workers in the state of
Bombay. The respondents were a corporation incorporated under the Companies Act, 1956, and
they challenged several aspects of that Act and the rules made under it. The High Court of
Gujarat held that the Act violates Article 19 of the Constitution.

Issue
Whether a law infringes the fundamental rights of citizen-employees under Article 19(1)(f) can be
challenged by the respondent, a non-citizen employer, on the grounds that the law is void also
against non-citizen employers under Article 13(2).

Judgement:
The Court held that Ambica Mills, as a non-citizen, could not invoke Article 13(2) to declare the
law void against them. The Court reasoned that if a law violates the fundamental rights of
citizens under article 19(1)(f), it is void against citizens who have been conferred such rights, but
it is operative in regard to non-citizens because the law is void only to the extent that the rights
conferred on citizens are violated and non-citizens have no right under Article 19.

Conclusion
Thus, the application of the doctrine of eclipse is quite clear. While it can validate pre-
constitutional laws that violate fundamental rights by allowing for Constitutional amendments,
the same does not apply to post-constitutional laws. This is because pre and post-Constitutional
laws have different standings under Article 13. With regards to pre-Constitutional laws, this
doctrine allows for saving unconstitutional laws from being wiped out in exceptional
circumstances by making those laws dormant until they can be revived in the future.

However, the question of whether the Doctrine can be extended to revive post-Constitutional laws
is a matter of debate among jurists and judges as well. It has also raised fascinating
constitutional questions that require unambiguous judicial decision, such as the exact meaning of
the word “void” in Article 13(1) and (2) and whether the American concept of “relatively void” is
applicable to the Indian scenario. The truth is that the Supreme Court has yet to make an
unambiguous pronouncement on this topic. As of now, Ambica Mills decision is followed, and the
Doctrine of Eclipse has not been applied to post-Constitutional statutes.

Que18. What do you understand by

‘Interpretation of statutes?’ what is the
difference between Interpretation and
Construction?

Ans_ I
The word ‘interpretation’ literally means ‘to provide meaning’, but it also refers to a technique for
bringing together unrelated data and the process of presenting something to readers based on
your ideas in a situation in which the interpretation of the law would reveal its true meaning and
intention. This construction conveys the meaning of a complex concept. If there is any ambiguity,
then the court may decide the meaning of the words which should be used further in that case.
When there is uncertainty, construction aids in concluding, whereas interpretation aids in
understanding the meaning of the words. Let’s now examine the interpretation and conclusion
from a broader scope to see how they differ from one another.

What is interpretation

According to Blackstone, “the fairest and rational method for interpreting a statute is by exploring
the intention of the legislature through texts, the subject matter, the effect, and consequences or the
spirit and reason of law.” The Latin term ‘interpretaria’, from which the word ‘interpretation’ is
derived, implies to expound or explain, particularly the actual meaning of anything. When there
are irregularities and ambiguous words in the law, the court should interpret them properly by
determining the actual meaning of the words by applying various rules of interpretation.
Interpretation of statutes is simply the process of understanding the meaning of the text in the
law and applying it to the case in the appropriate manner. The court can determine the exact
intent of the legislature by interpreting the legislation and the interpretation of statutes. When a
statute’s language is unambiguous, interpretation is not essential, but in cases when particular
phrases may have more than one meaning, the statute should be interpreted to ascertain its
literal meaning.

Rules of interpretation
When terms in laws are ambiguous or uncertain, it is the court’s responsibility to interpret them
to imply exactly what is written there. If mistakes go undiscovered, judges may refer cases to the
four rules of interpretation to elucidate the statute. The aforementioned heads serve as the
foundation for the rules of interpretation. The main objectives of the interpretation are to
determine the word’s true meaning and to establish the intention behind adding that specific term
to the law.

 The Literal Rule

 The Golden Rule
 The Mischief Rule
 The Purposive Rule

The Literal Rule

The literal rule of interpretation is one of the principles of interpretation the court applies to
understand the basis of the statutes. This literal rule of interpretation is regarded as the most
fundamental one. This rule, which is also known as the plain meaning rule or the grammatical
rule as its name suggests, is important to use to identify the meaning of the words in statutes, but
judges are not required to change the words when they are in the right perspective and can be
properly interpreted in cases.

The safest rule of interpretation is that the court and judges should adhere to the definition clause
attached to the legislation in determining the meaning of the relevant words, and they should not
depart from that definition for any reason. In this literal method of interpretation, the court can
determine the words’ natural and ordinary meaning, but judges are not capable of exercising their
judicial mind beyond the actual meaning specified in the legislation. A literal rule of
interpretation makes the law simple and plain while respecting the sovereignty of the parliament.
However, the rules cannot always be applied, which can lead to incorrect judgments being issued.

Case laws
R v. Harris (1836)
In this case, the victim’s nose was bit by the defendant. The Court found that under the literal
rule, the act of biting did not fit within the definition of ‘to stab,cut, or wound,” as these terms
meant an instrument had to be employed. The statute made it an offence “to stab, cut, or wound’.
As a result, the conviction of the defendant was overturned.

Fisher v. Bell (1961)

In this case, the appellant was a Chief Inspector of Police, whereas the respondent had a retail
store in Bristol. A police officer observed the presence of a flick knife with a price tag. The
respondent was notified by the police officer that the knife was a “flick knife” and that the
respondent would be reported for selling flick knives, which was against the act, and claimed that
the display of the flick weapon was illegal. However, the respondent disagreed with it.

The Court used the literal rule of statutory interpretation, which resulted in the dismissal of his
conviction, because the products on display in stores are not technically “offers” but rather an
invitation to treat.

The Golden Rule

Viscount Simon L.C says, ” The golden rule is that the words of a statute must prima facie be
given their ordinary meaning.” When the literal rule cannot resolve inconsistency or ambiguity in
the statute, the golden rule of interpretation is used to resolve this inconsistency. It is also known
as the modifying rule of interpretation or the grammatical rule. When it comes to the golden rule,
errors in the law are immediately addressed by amending the literal rule of interpretation. Judges
are only permitted to slightly alter the language when there is a contradiction, since they
occasionally act to their advantage.

The golden rule of interpretation is the statutory rule, which permits a departure from the
common meaning of words when the context of the entire document so requires. There are two
methods to apply the golden rule of interpretation. First, it is employed in the most restricted
context when there is some ambiguity or absurdity in the words themselves. Secondly, it is used
in a broader context to avoid using language that is offensive to public policy values even when
there is just one meaning.

Case law

R v. Allen (1872)
In this case, Section 57 of the Offences against the Persons Act of 1861, the defendant was
implicated in the crime of bigamy. According to the law, “whosoever being married shall marry
any other person during the lifetime of the former husband or wife is guilty of an offence”. If this
clause were to be read literally, it would be impossible to commit the offence because civil law
does not recognize second marriages. Any attempt to get married under these circumstances
would not be recognized as a legal marriage.

Tarlochan Dev Sharma v. State Of Punjab (2001)

In this case, the Court applied the golden rule of interpretation to the phrase “abuse of
his power” contained in Section 22 of the Punjab Municipal Act of 1911, which denotes an
intentional or willful misuse of power.

The Mischief Rule

The Mischief rule of interpretation, which is narrower than the literal and the golden rules of
interpretation and gives judges more discretion than the other two rules to decide, is considered
the third rule of statutory construction. The word “mischief” generally refers to loss or damage to
a person or property. The primary goals of this rule are to develop a remedy for the flaw in the
statute.

Case law

Heydon’s case (1584)

The Mischief rule of interpretation was first established in this case, in which a college had a
particular property in their name and the management decided to give a particular portion to W S
and G and their sons for their later lives later during the 16th century in England, where the
system known as doubling of estates was valid in these acts of giving property. The English
Parliament passed ‘The Statute – 31 Henry VIII’ to stop the doubling of estates.

Heydon contested this action taken by the crown under the use of this Act, but the Court upheld
the action by the crown after applying the mischief rule of interpretation. The primary goal of the
legislation passed by the parliament was to safeguard the assets of religious institutions. Because
the Court found that the statute was invalid for the doubling of estates, it was upheld. Lord Coke
noted the following four points for interpretation of the statutes.

 What was the common law before passing the Act?

 What was the mischief and defect for which the common law did not provide?
 What remedy had Parliament resolved and appointed to cure the disease of the
Commonwealth.?
 The true reason for the remedy.
This ambiguous rule of interpretation served as the court’s explanation for departing from the
statute’s plain language to grant remedies, and as such, it has been characterised as a flexible
rule of interpretation.

Royal College of Nursing v. DHSS (1981)

In this case, the RCN contested the involvement of nurses in abortion under the offences against
the person act, which is unlawful. The Abortion Act of 1967 states that it is legal for medically
registered practitioners to perform abortions. The court supported this by interpreting the
mischief rule.

The Purposive Rule

Purposive interpretation is a term that appears frequently in both legal writing and court rulings.
Understanding that “purpose” is a subjective concept is the common theme connecting most
references to purposive interpretation. In recent years, the purposive approach has gained
popularity. The Law Commission recommended the courts to use this strategy in 1969. Prior to
reading the wording of the law, a purposive approach to statutory interpretation looks for the
legislation’s goals. It is commonly said that the purposive approach is a hybrid of domestic rules
however, domestic rules require for courts to apply the literal rule first to examine the Act’s
words, whereas the purposive approach begins with the mischief rule to determine the purpose or
intention of Parliament. This makes it a considerably more flexible approach, providing judges
more freedom to shape the law in accordance with what they believe to be Parliament’s intent.

Case law
Pepper v. Hart (1992)

In this case, it was up to the House of Lords to determine whether a teacher at a private school
was required to pay taxes on the benefit he got in the form of decreased fees. The teacher
attempted to rely on a Hansard statement made at the time when the Finance Act was passed, in
which the minister specified his precise situation as one in which tax would not be payable. The
courts were not permitted in the early years. In contrast to Davis v. Johnson, the House of Lords
took a more positive approach to interpretation, concluding that Hansard could be cited and that
the teacher was exempt from paying tax on the benefit he received.

What is construction
 According to Salmond, “interpretation and construction is the process by which the court
seeks to ascertain the meaning of the legislature through the medium of authoritative
forms in which it is expressed.”
 According to Cooley, “construction is the process of concluding, respecting subjects that lie
beyond the direct expression of the text, which is in the spirit though not within the letter
of law”.
 Judges should take into account the factual circumstances before giving a particular
meaning to the phrase, words, or expression that are present in the legislation because
construction in law is about giving meaning to the ambiguous words in the provisions of
the law to resolve the inconsistency.

Difference between interpretation and

construction
The definition of a statute is a written expression of the direction or intent of a legislature. A law
can be interpreted or construed to determine its intended meaning. The judicial authorities can
define the meaning and objectives of the legislation with the aid of this process of interpretation
and construction. Let’s now explore their variances.

Interpretation Construction

Interpretation is the process of Construction is the process of using the legal

ascertaining the true meaning of the text to draw conclusions that go beyond its
words and the Purpose of the legislation plain language to solve Inconsistencies

Interpretation may be performed when a Construction may occur when the language and
certain term or phrase in law has an the meaning attached to specific phrases in the
unambiguous meaning, laws are unclear and ambiguous.

The process of interpretation identifies

the methods that can be used to interpret Construction intends to bring it to a conclusion.
any statute.

Interpretation is used to determine the The legal impact of the legislative text can be
linguistic meaning of a legal text. ascertained through construction.

Construction works to create standards to

Ambiguity is removed by interpretation.
overcome ambiguity

It is necessary to complete construction as a

A legal text can be partially interpreted.
whole.

Interpretation can be seen as a broad Construction is almost like an interpretation in

form of construction which the words are considered

Conclusion
Interpretation and construction are necessary to ensure that every citizen of a nation receives fair
justice. The court must be quick to apply the law to the situation. By using interpretation, the
court can examine the meaning of the statutes’ words, while construction aids in the explanation
of the laws.

Que19. Discuss the ‘Golden Rule of

Interpretation’ with the help of decided
cases
Ans_ I
Laws are made in any country to punish wrongdoers for the heinous crimes they might commit.
These are generally formulated when there are increased instances of people being left scot-free
despite committing an offence due to the lack of proper legal provisions. A prime example of this is
the anti-defection law, introduced in 1985 owing to mass defections. As a result, these laws are
applicable to similar crimes that might be committed in the future. However, there have been
several instances in which the newly formulated or amended laws could be used to hold a person
liable for offences committed before the introduction of that law as well. These types of laws or
amendments are very rarely found in any country and are known as retrospective laws or statutes

Retrospective laws can generally be made for both criminal as well as civil offences. In recent
times, such legislation has become a topic of debate. While certain scholars are of the opinion that
such legislation directly violates the rights of the people, others feel it is necessary that the
wrongdoers get punished even though they committed a wrongful act that was unrecognized at
that point in time owing to the lack of any statutory provisions. This article will delve deeper into
all these aspects resolve the existing ambiguities in such laws

The judiciary in India plays a huge role in ensuring the just and fair treatment of the people. Its

decisions affect people in more ways than one. This is the reason that only people with the

required level of intellect and experience are chosen to be judges in courts. We are aware of the

regular judgements of the courts where they decide upon cases involving statutory applications.

Often, the wording of a particular Section of a statute is challenged and it is the duty of the court

to either expand, restrict or modify the meaning of the term, in order to ensure justice in the case

at hand. This power of the judiciary is essential to its function of interpreting laws made by the

Parliament. Sometimes the intention of the lawmaker is ambiguous due to the usage of vague

terms, and thus, it becomes necessary for someone to correct this mistake. To aid the judges in

deciding whether a term must be interpreted in a different way and what should be that

interpretation, the rules of interpretation were created by some great minds. In this article, we

shall look into what exactly the rules of interpretation are and specifically talk about one of the

main rules, i.e. the golden rule of interpretation.

What are the Rules of Interpretation

As per Salmond, “interpretation is the process by which the court seeks to ascertain the meaning of
legislation through the medium of the authoritative form in which it is expressed.” The word
‘interpretation’ is derived from the Latin term “interpretari” which means to explain or
understand. So when we say judges interpret the law, we mean judges try to ascertain the true
meaning of the words used in a statute.

It is important to note that judges do not get into the interpretation of statutes unless it is
necessary. If the language of a provision is unambiguous and clear as to the intention of the
maker, the courts do not try and modify it. Their duty to interpret arises only when the language
of the provision is unclear, vague or ambiguous. To guide the judges in using this discretion
appropriately, certain principles have been developed which we now refer to them as ‘rules of
interpretation’.

The three rules of interpretation

There are three rules, the literal rule, the golden rule, and the mischief rule.

The Literal rule

The literal rule is the first rule of interpretation. According to this rule, the judge has to read the
statute as it is and consider the literal meaning of what’s written. It basically means to extract
the plain meaning of the text. This is why it is also called the ‘plain meaning rule’. The first
step in interpreting anything is to read whatever is written as it is. The plain text of the statute
can give an insight into the minds of its makers. In such cases, where the true meaning can be
derived from the normal text of the statute, no modifications should be made. The end goal is to
derive the one and only meaning of the text. Thus, this rule shall be applied when the language of
a provision does not give rise to more than one meaning and is completely clear about what it
deals with.

In the case of Duport Steel Ltd v. Sirs (1980), Lord Diplock observed that where the meaning of
the words in a statute is clear and unambiguous, there is no need for judges to invent ambiguities
to give them an excuse for failing to apply the plain meaning to the case at hand because they
presume it to be unjust.

The Mischief rule

This rule originated in Heydon’s case in 1584. It is also called Heydon’s rule as it was given by
Lord Poke in that case. It is the rule of purposive construction as the purpose of the statute is
most important while applying this rule. The focus of this rule is to cure the mischief, which
means to prevent the misuse of provisions of a statute. As per this rule, the meaning of the statute
should be interpreted in a way, where there is no room for mischief. If there has been an attempt
to add mischief to a statute, then it must be weeded out using this rule.

Let’s understand this rule using an example.

In the year 1959, the Street Offences Act of the UK was enacted to prohibit prostitutes from
soliciting on the roads to the passing public. After the enactment, the prostitutes started soliciting
from their balconies and windows. As per Section 1(1) of the Act, it was an offence for an adult to
solicit in a public place for the purpose of prostitution. The prostitutes were charged under this
Section as their actions defeated the intention of the legislation. When this was challenged before
the Court, it was found that the meaning of this Section was being misinterpreted and was being
taken advantage of by the prostitutes. It applied the mischief rule of interpretation and stated
that the intention of the Act was to prevent prostitution. Thus, it expanded the meaning of the
word ‘street’ and included the balconies and windows of homes.

The Golden rule

The golden rule is a deviation from the literal rule. It is used to modify the meaning of the absurd
term to give it a useful and apt meaning to suit the context. It is discussed in depth below.

What is the Golden Rule of Interpretation

The golden rule of interpretation was propounded in the case of Grey v. Pearson by Lord
Wensleydale in the year 1957. This is why it is also known as Wensleydale’s Golden Rule. This
rule is the modification of the literal rule. The golden rule modifies the language of the words in a
statute to successfully interpret the actual meaning of the legislation. It takes into account the
context in which the words are used so that justice can be done to the intention of the legislation.
It is to be noted that the rule can be used only when the language of the statute is ambiguous or
grammatically incorrect. Thus the judges need to be extremely careful with their interpretation
and only exercise this power when it is absolutely necessary.

The golden rule can be applied in a narrow or a broad sense:

 Narrow approach – This approach is taken when the words in the statute are capable
of multiple interpretations. Through this approach, the judge is able to apply the
meaning which is clear and properly portrays the true intention of the statute. This
approach was used in the R v. Allen, (1872) case.
 Broad approach – This approach is taken when there exists only one possible
interpretation of a word. In some cases, the meaning might cause absurdity. In order to
avoid this problem, the judges can use this approach to modify the meaning of the word
but this modification should be limited and shouldn’t deviate from the actual intention
of the legislation. In Re. Sigsworth: Bedford v. Bedford (1954), this approach was used.
The golden rule of interpretation is the second step after the literal rule. As we’ve discussed, the
literal rule would apply only when the plain meaning of the word gives justice to the intention of
the legislation. When the literal rule fails due to the existence of multiple meanings of a word in
the statute, the golden rule is to be applied.

Advantages of the Golden Rule

 An apparent advantage of the rule is that it allows the judge to modify the meaning of words
to remove absurdity and apply the modified term effectively in the case at hand.
 When the literal rule of interpretation fails to achieve clarity, the golden rule steps in to
help the court.
 It guides the judges in applying appropriate principles while interpreting the meaning of the
statute.
 It takes away the requirement of amending the legislation to make minute changes as the
judges can do that for the Parliament. For example, in the R v. Allen case discussed above,
 the Court stepped in and closed the loopholes by applying the golden rule. The
interpretation was in line with the original intention of the Parliament. Thus, no
amendments were required.

Disadvantages of the Golden Rule

 The golden rule is restricted in its use as it can be used only when the literal rule leads
to ambiguities in interpretation. Its use thus becomes limited and rare.
 It is unpredictable and lacks guidelines.
 One of the main disadvantages of the rule is that judges can twist the meaning of the
words and change the law. This would cause a disbalance in the separation of powers

Methods of application of the Golden Rule

Some scholars have tried to lay down ways by which the meaning of the statute is to be
ascertained.

Earl T. Crawford, in his book “The Construction of Statutes”, has written that the first source of
interpretation should be sought from the words of the statute. After that, the meaning ascertained
should be examined in the context and subject matter of the enactment. If the legislative intent is
still unclear, the various external sources of assistance can be consulted. In this case, the external
source of assistance shall be the rules of interpretation.

Austin has also contributed to the vast literature on rules of interpretation. He has divided the
interpretative process into three sub-processes:

 Finding the rule.

 Finding the intention of the legislature.
 Extending or restricting the statute to cover cases.
Similarly, De Sloovere recommended the following steps:

 Finding the right statutory provisions.

 Interpreting the statute in its technical sense.
 Applying the meaning to the case at hand.
In both the recommendations, the first step is to find the appropriate rule/provision and apply it
to the case at hand. If the literal meaning of the statute is appropriate, it shall be applied. It is
only when the meaning is absurd, that the golden rule of interpretation shall come into play. The
court shall extend or restrict the statute using this rule to cover the case at hand and apply the
modified meaning to come to a better judgement.

Views of eminent jurists on the Golden

Rule of Interpretation
Through the years, eminent jurists have shared their thoughts about the golden rule of
interpretation either through judgements or books.
Justice Holmes had stated that a word is not a crystal, transparent or unchanged. It is the
product of thought and has the ability to vary greatly in colour and content based on the
surrounding circumstances and the time in which it is used. Wherever the meaning of the words
is uncertain, there may be a requirement for the application of the golden rule. The court’s main
purpose is to supply justice and to do that, proper interpretation has to be made. The literal rule
should be used first but if it results in absurdity, the ordinary meaning of the word then may be
modified to avoid that absurdity, but no further.

Lord Moulton in the case of Vacher & Sons v. London Society of Compositor, (1912) emphasised
the need for caution before applying the golden rule of interpretation. He stated that there exists
a danger that the rule may lead to mere judicial criticism of the correctness of the Acts of
legislature. We have to interpret the statutes based on the language used in them. Although the
result of two conflicting interpretations may guide us in making a choice between them, we can be
sure that the words used cannot be attributed to the conflicting interpretation by taking the Act
as a whole and viewing it in the context of the existing State law at that time.

The Supreme Court in the case of State Bank of India v. Shri N. Sundara Money, (1976) stated
that the rights of the public are paramount and are to be considered superior in comparison to
individual rights. If the words of the statute are absurd in the context of the case, they should be
considered repugnant in order to apply the golden rule of interpretation.

Important case laws related to the Golden

Rule of Interpretation

State of Punjab v. Qaiser Jehan Begum (1963)

Facts of the case

 The respondents were the owners of 55 bighas and 7 biswas of land in two villages.
 Their lands along with nearby lands were acquired by the appellant for his use.
 The respondents were not informed about the acquisition and were not present at the
time of the award.
 The Collector awarded compensation at the rate of Rs. 96 per acre but the respondents a
year later contended the valuation of their lands. The senior subordinate judge rejected
their application as it was already 6 months since the sale and was thus beyond the
period of limitation as per Section 18 of the Land Acquisition Act, 1894.

Issue of the case

 Whether the limitation period starts from the day of sale or from the day of getting the
knowledge of the award.

Judgement
  The Supreme Court held that the parties must first come to know the award in order to
make an application for reference under Section 18. The parties were not informed of
the award by notice.
 Since the parties got to know of the award on a later date, the limitation period for
Section 18 would start from this date and not the date on which the compensation was
awarded.
 In this case, the Court applied the golden rule to modify the meaning of the provision to
include the start of the limitation period from the date of receiving the notice of award.

Ramji Missar v. State of Bihar (1962)

Facts of the case

 The appellant and his brother assaulted one person who suffered grievous injuries.
 The appellant and his brother were charged with Section 307 & Section 326, and Section
324 of the Indian Penal Code, 1860 respectively.
 It was also found that the younger brother, 19, had no intention to cause hurt, and was
thus, only charged with Section 324.
 The appellant contended that the younger brother’s age was under 21 at the date of the
offence and thus Section 6 of the Probation of Offenders Act, 1958 should be applied.

Issue of the case

 Whether the age of the accused is to be determined on the date of the offence or the date
of the guilty verdict.

Judgement
 The Supreme Court in this case decided that the age of the younger brother was below
21 years of age and thus, Section 6 was applicable to him.
 The Court applied the golden rule to allow the accused to claim the benefit under
Section 6 of the Act by stating that the determination of age for this Section should be
done on the date of the guilty verdict and not the date of offence.

Nokes v. Doncaster Amalgamated Collieries Ltd. (1940)

Facts of the case

 Section 154 of the Companies Act, 1929 provided the machinery for the transfer of
an old company to a new company. ‘Transfer’ includes transferring all property, rights,
liabilities and duties of the former company to the new company.
 There existed a contract of service between the appellant, Tom Nokes and the old
company.
  After the acquisition of the old company by the respondent, the transfer of all property,
rights, liabilities and duties was done. The appellant continued to work in the old
company without having knowledge of the acquisition.
 When the appellant absented himself from work, he was held liable under Section 4 of
the Employers and Workmen Act, 1875.
 The respondent claimed that the transfer included the contract of service under the
transfer of ‘property’.

Issue of the case

 Whether the transfer of property includes the contract of service that previously existed
between the individual and the transferee company.

Judgement
 The House of Lords held that the benefits of the contract entered into by the employee
and the former company cannot be transferred without informing and obtaining the
consent of the employee.
 The notice of the amalgamation by the transferor or transferee company to the appellant
was essential.
 It was also stated that while using the golden rule, the words must be given their
ordinary meaning. If the legislature desired that workers could be transferred to the
new company without their consent then it would have specifically mentioned it in the
statute. But nothing of that sort could be found in the present case. Thus, the golden
rule was used in this case to modify the meaning of the term ‘property’ by restricting it.
Viscount Simon, L.C. presented his reasoning by stating that an interpretation should
be avoided if it reduces the legislation to futility which would fail to achieve the purpose
of the legislation.
If the golden rule wouldn’t have been applied in this case, it would have led to injustice as it
would take away the consent of the workers. This would negatively affect the workers who would
be subject to frivolous penalties just like in this case.

State of Madhya Pradesh v. Azad Bharat Financial

Company (1967)

Facts of the case

 A transport vehicle belonging to the defendant was carrying a parcel of apples.
 While being checked by the authorities, it was found that the parcel contained opium.
An invoice was shown to the authorities, which contained crates of apples as the only
item.
 Eventually, the vehicle was impounded and the items carried by it confiscated.
 Section 11 of the Opium Act, 1878 provided that all the vehicles transporting
contraband articles shall be impounded and articles confiscated.
  The transport company contended that it had no knowledge of the opium present in
their transport vehicle.

Issue of the case

 Whether the magistrate was bound by the words of Section 11 of the Opium Act, 1878 to
confiscate the vehicle.

Judgement
 The High Court held that it was unjust to confiscate the truck of a person if he had no
knowledge of the opium being carried on it.
 Since it is a penal statute, it should be construed in a way that no person who has not
committed any offence, shall not be penalised.
 The word ‘shall’ in “shall be confiscated” should be interpreted as ‘may’ in the context of
such cases.
Thus, the obligation under Section 11 of the Act was removed using the golden rule of
interpretation. Had the literal rule been followed in this case, it would’ve led to gross injustice as
an innocent person would’ve been penalised.

Lee v. Knapp (1967)

Facts of the case

 The defendant was driving around the block in which his company’s office stood. The
purpose was to demonstrate to the van driver that the new vehicle was easy to drive.
 During this demonstration, the van got into an accident with a parked vehicle.
 As per Section 77(1) of the Road Traffic Act, 1960, the driver of the vehicle shall stop
and give his information and his car’s identification marks in case of an accident where
damage has been done to another vehicle.
 The defendant stopped but did not provide the details personally as was required by the
Section.

Issue of the case

 Whether the meaning of the word ‘stop’ included stopping for a reasonable period of time
before leaving the place of the accident.

Judgement of the Court

 The court held that the driver did not stop for a reasonable period of time and make an
attempt to look for the other car’s owner.
 Also, the defendant not giving the details personally violated Section 77(1) of the Act.
  Here, the golden rule was applied to expand the meaning of ‘stop’ to include ‘search the
victim’. Due to these reasons, the defendant was held liable under Section 77(1) of the
Act.

Fitzpatrick v. Sterling Housing Association Limited

(1999)

Facts of the case

 The claimant had a long-standing and stable homosexual relationship with the
deceased, who was the original tenant of the flat.
 After the death of the tenant, the claimant sought a statutory tenancy as the spouse of
the deceased.

Issue of the case

 Whether a homosexual partner is eligible to get a statutory tenancy on the same
grounds as a spouse in heterosexual marriage?

Judgement
 The Court held that the claim could not be made as a spouse of the deceased as
homosexual partners did not come under the meaning of the word. The word spouse
included ‘husband or wife’ of the deceased.
 If the Parliament wanted to include same-sex partners, then it would have expressly
stated it.
 But the Court stated that the meaning of the word ‘family’ could be extended to include
same-sex partners. Thus the appeal was allowed.
In this case, the golden rule was applied to ensure justice for homosexuals when it came to rights
related to family law. The Court ensured that it doesn’t cross the line and infringe upon the area
of the legislature by using the literal rule.

Criticism of the Golden Rule of Interpretation

On the face of it, the golden rule of interpretation seems like a good alternative to the literal rule.
But as per many, it has its shortcomings and sometimes these shortcomings might lead to tragic
results.

The first point of criticism comes from the definition of the term ‘absurdity’. It is a vague concept.
Also, what is absurd depends on the person interpreting it. This leads to a lack of uniformity
while applying the already limited golden rule. Every judge is different and is bound to interpret
things differently. The purpose of this rule is to bring uniformity by stating that interpretation of
the provisions of a statute should not deviate from the intention of the legislation. This rule is to
be applied when the literal interpretation of the text produces ambiguous or absurd results. This
is where the problem lies. The absurdity clause to some extent eliminates the uniformity provided
by the rule.

Second, the literal, golden and mischief rules are called rules but are they really rule in the true
sense of the word? Certainly not. It is totally based on the discretion of the judges. Although
they’re called rules, none of them carries any authority independently. The judges can choose not
to follow the ‘rules’ when the need clearly exists. Also, they’re all different solutions to the same
problem. Thus, there is no hard and fast rule as to which one to apply in the case at hand.

Third, due to the culmination of the above-mentioned reasons, the golden rule acts as an excuse
for the judge to deviate from the guidelines. It allows the judge to make exceptions that do not
align well with the policy behind the Act but are based on the social and political views of the
judge. So the bias of the judge can find a way to enter the scene through this power of
interpretation. For example, let’s take the prostitution case that we discussed above. There is
legislation banning the use of cigarettes in public similar to the prostitution case. A case arises
before the Court and it has to now decide if the accused is guilty of violating a particular Section
of the statute. Now, if the judge personally believes that smoking is not all that bad, he could
restrict the meaning of ‘streets’ in this case. Thus, the application of the golden rule of
interpretation is dependent on the wisdom and integrity of the judges.

Conclusion
The golden rule of interpretation is one of the better ways to strike a balance between statutory
intent and evolving societal needs. It was best described in the case of Fitzpatrick v. Sterling
Housing Association Limited, (1999), that there are areas of law where a clear demarcation lies
between the judiciary and the legislature. When it comes to interpretation, the intention of the
legislature should always be kept in mind. If a particular provision clearly mentions the parties
concerned with it, the judiciary for the sake of socio-legal development expands its meaning
unless the intention of the legislature says so. The judiciary cannot cross that line and perform
the functions of the legislature.

Due to the possibility of errors in interpretation, the golden rule is not a perfect tool. It cannot
always be used to eliminate absurdities in the plain meaning of the statute. Due to this, several
jurists have come up with their own procedure of application of the rule to make it more efficient.
The rule has been used and modified by judges in various cases for decades and it is still in use to
this date as it has stood the test of time.

Que20. Explain the rule of ‘Harmonious

Construction’
Ans_ I

A legal doctrine is a principle, a theory, or a position that is commonly applied and upheld by the

courts. Different judicial doctrines have developed over time in the Indian constitutional law

based on different judicial interpretations by the judiciary. These legal concepts did not form or

take place at once but they are a result of disagreements, unrest, debates, and legislative

solutions, and require improvement. These situations arise when the statutes and their provisions

have more than one interpretation because of an ambiguity in the law. After the statute has been

enacted, the legislature becomes functus officio (no longer has jurisdiction). The interpreters of

the law are then unable to question or get back to the legislature to request the exact

interpretation of the legislation while they were making it. Sometimes the lawmakers may not

have considered such a broad range of circumstances when drafting any given statute. The thumb

rule for interpreting any statute is then the rule of harmonious construction. The doctrine of

harmonious construction is followed when there arises an inconsistency between two or more

statutes or sections of a particular statute. The fundamental principle behind this doctrine is, a

statute has a legal purpose and should be read in its totality and after that, the interpretation

that is consistent with all the provisions of that statute should be used. In a situation where

harmonizing all clauses is unlikely the court’s decision on the provision then takes precedence.

The history behind the doctrine of

Harmonious Construction
be put to construe them harmoniously, so that the courts avoid any conflict The doctrine of
harmonious construction came into existence as a result of many varied court interpretations of
different statutes in a variety of cases. From time to time, the judiciary decided matters that
involved opposition between two distinct provisions. This doctrine came cloaked as the rule of
conciliation first in the case of C. P. and Berar Act (1939), where the involved court resolved the
inconsistency between an entry of List I, and an entry of List II in the Indian Constitution and
interpreted them harmoniously.

In the aforesaid case, the question was whether a tax imposed by a provincial legislature on the
sale of oil by a person who manufactured it, based on the ground that it was actually an excise
duty. Then, a sales tax could be imposed by a provincial legislature, and excise duty could be
imposed only by the union legislature. The Apex Court, in this case, remarked that it would be
peculiar if the Union had exclusive power to tax retail sales when the province had executive
power to make laws with respect to trade and commerce, its production and supply, and the
distribution of goods within its boundaries. Hence, it was a sales tax and the Act was not ultra
vires. The Court added that there was no overlapping or conflict of two entries, so as to apply a
non-obstante clause.

The doctrine’s conception can be tracked all the way back to the first amendment to
the Constitution of India, 1951, in the landmark judgement of Sri Shankari Prasad Singh Deo v.
Union of India (1951). The disagreement between the Fundamental Rights (Part III) and
the Directive Principles (Part IV) of the Constitution of India was the subject of the case.
Constitutional law is mainly concerned with the creation of the three great organs and the
distribution of governmental powers among them, that is the executive, the legislature and the
judiciary.

The Apex Court, in this case, made use of the rule of harmonious construction and held that
Fundamental Rights are granted against the State and they may be revoked only under certain
circumstances and even modified by the Parliament to comply with the constitutional provisions.
The Supreme Court gave preference to both and said that the Fundamental Rights and Directive
Principles of State Policy are two sides of the same coin, and it is beneficial that they must work
together. The Supreme Court further held that the Fundamental Rights enforce limitation over
both the legislature and executive power. They are not sacrosanct and the Parliament can amend
them to bring them in conformity with the Directive Principles.

The Supreme Court articulated the doctrine of harmonious construction in the case, Re Kerala
Education Bill Case (1957). The court added that there was no inherent conflict between the
Fundamental Rights and the Directive Principles of the State Policy and they together constitute
an integrated scheme and a comprehensive administrative and social programme for a modern
democratic state. The court called them supplementary and complementary to each other.
Therefore, effort should among the Fundamental Rights and Directive Principles. They basically
run parallel to each other and neither one is subordinate to the other.

Scope and objective of the doctrine of

Harmonious Construction
The aim of the judiciary and the courts should be to view the law as a whole. The interpretation of

the law should be such that it prevents confusion or incompatibility between the different sections

or parts of the statute being used. Whenever a discrepancy arises between two or more statutes or

different clauses or sections of a statute, the doctrine of harmonious construction must be

followed. The doctrine is based on the straightforward principle that every statute has a legal

purpose and should be read in totality. The interpretation should be such that it is unswerving

and all of the statute’s provisions should be used. In the event that harmonizing two or more

statutes or different clauses or sections of a statute is unlikely, the court’s decision on the

provision would take precedence

Latin maxims related to the doctrine of

Harmonious Construction

Generalia specialibus non derogant

The Latin maxim means that the courts prefer specific provisions to provisions of general
application whenever the provisions are in conflict. In other words, the general rule to be followed
in case of a conflict between two statutes is that the latter retracts the previous one. One cannot
hold that previous or special legislation indirectly repealed, altered or consider it in derogated
from, simply by force of such general words, without any suggestion of that particular intention to
do so. This means that a prior special law would yield to a later general law if two of the following
conditions are satisfied, the later law, even though general, would prevail if:

 The two provisions are conflicting with each other.

 There is some express reference in the later legislation of the previous enactment.

Generalibus specialia derogant

Generalibus specialia derogant is another legal maxim used in connection with the harmonious
construction rule in India. It basically means that special things detract from general things. In
other words, if a special provision is made on a certain matter, then that matter is excluded from
the general provisions. Applying this rule, the Patna High Court held in its judgement, Vinay
Kumar Singh v. Bihar State Electricity Board (2003) that Article 351 of the Constitution of India
is a general provision regarding the development of Hindi in India. Article 348 on the other hand,
is a specific provision with respect to the language to be used in the Supreme Court and the high
courts. Therefore, the applicability of Article 351 of the Constitution is entirely precluded.
Principles that govern the doctrine of
Harmonious Construction
Commissioner of Income Tax v. M/S Hindustan Bulk Carriers (2000) is a landmark case where
the Supreme Court laid down five main principles that govern the rule of harmonious
construction that are as follows:

The courts should try and avoid a conflict of seemingly disputing provisions and effort must be
made to construe the disputing provisions so as to harmonize them.

 The provision of one section cannot be used to overthrow the provision covered in
another section unless the court is unable to find a way to settle their differences despite
all its effort.
 In the situation when the court finds it impossible to entirely reconcile the differences in
inconsistent provisions, the courts must interpret them such that effect is given to both
the provisions as far as possible.
 Courts must also take into account that the interpretation that makes one provision
redundant and useless is against the essence of harmonious construction.
 Harmonizing two contradicting provisions means not to destroy any statutory provision
or to render it ineffective.

Application of the doctrine of Harmonious

Construction
The Courts have articulated some procedures for the proper applicability of the aforesaid doctrine
after reviewing numerous case laws. They are as follows:

 Giving equal importance to both the conflicting provisions, thus reducing their
inconsistency.
 The provisions that are fundamentally inconsistent or repugnant to each other must be
read in their entirety, and the complete enactment must be taken into account.
 The provision with a broader reach of the two contradicting provisions should be
considered.
 Comparing the broad and narrow provisions, the courts should analyse the broad law to
see if there are any other concerns. No further thought needs to be given if the result is
fair and harmonizing both clauses can be done by giving them full weight separately.
This is because the legislature was well aware of the situation they were attempting to
address when enacting the provisions, and hence all provisions adopted must be given
full effect.
 When one provision of the Act slivers, the powers conferred by another Act then a non-
obstante clause must be used.
 It is significant that the court establishes the degree that the legislature wanted to
grant one provision overriding authority over another.
Case laws explaining the application of the
doctrine of Harmonious Construction
Following are some famous Indian case laws where the courts have tried to interpret certain
statutes with the help of applying the rule of harmonious construction.

Sri Jagannath Temple Managing Committee v. Siddha

Math and Others (2015)
In this case, provisions of the Sri Jagannath Temple Act,1955 and the Orissa Estate Abolition
Act, (OEA) 1951 came into scrutiny. The Supreme Court said that a clear conflict arose between
Section 2(oo) of the Orissa Estates Abolition Act,1951 and Sections 5 and 30 of the Shri Jagannath
Temple Act, 1955. The Court added that it was also clear that both the given statutory provisions
of the aforementioned Acts cannot survive together. The Court said that while using the rule of
harmonious construction it should be taken into account that when the provisions of two statutes
are irreconcilable, one must decide which provision must be given effect to.

In this case, Section 2(oo) of the OEA Act in its entirety was not violating the provisions of Sri
Jagannath Temple Act. It was only the first part of the proviso which was contradicting the
Jagannath Temple Act. If that part of the proviso continued to be given effect then Sections 5 and
30 of the Jagannath Temple Act, by which the estates of the Jagannath temple at Puri are
entrusted in the temple committee, would then lose their meaning. The Court further explained
that by striking down Section 2(oo) proviso of the OEA Act, both the provisions would be operable.
Whenever a question comes up about the application of specific and general laws in the same case
then the nature of the case and the issues must be scrutinised by the court concerned. If, however,
the two laws are in absolute conflict, then there must be a check on the limitations placed and
exceptions foisted by the Legislature.

The Apex Court held that the special provisions of the Jagannath Temple Act would prevail in
this case, and thus, the principle of generalia specialibus non derogant was applied.

Venkataramana Devaru v. State of Mysore (1957)

In this case, the trustees of an ancient, renowned temple of Sri Venkataramana filed a suit
under Section 92 of the Code of Civil Procedure, 1908 (CPC) against the exclusion of Harijans
from entering into Hindu temples after the passing of the Madras Temple Entry Authorization
Act (Madras V of 1947). The trustees made a representation to the Government that the temple
was a private one and founded exclusively for the Gowda Saraswath Brahmins, and, therefore,
outside the operation of the Madras Temple Entry Authorization Act. However, the Government
did not accept that position and held that the said Act applied to the temple.

The trustees argued that the temple was not defined under Section 2(2) of the Madras Temple
Entry Authorization Act and Section 3 of the Act was void because it was offensive to Article 26(b)
of the Constitution of India. Thus, an appeal was made to the Trial Court which gave a decision
against the appellants. But the High Court of Madras passed a limited decree in the favour of the
appellants stating that although the public, in general, were entitled to worship in a temple, the
appellants had a right to exclude the general public during certain ceremonies in which only the
members of the Gowda Saraswath Brahmins alone were entitled to participate. Dealing with the
controversy that Section 3 of the Madras Temple Entry Authorization Act was in violation of
Article 26(b) of the Indian Constitution, the High Court held that a denominational institution is
also a public institution, Article 25(2)(b) of the Constitution would apply, and therefore, all classes
of Hindus were entitled to enter into the temple for worship.

The Court further added that Article 25(1) of the Constitution deals with the rights of individuals
and Article 26(b) with the rights of religious denominations. However, Article 25(2) covers a much
wider ground and controls both the Articles. Article 26(b) must, therefore, be read keeping in
mind Article 25(2)(b) of the Constitution.

The decision by the Supreme Court clarified the challenge in the interpretation of Section 2(2) and
Section 3 of the Madras Temple Entry Authorisation Act (V of 1947) while also laying clearly the
concepts pertaining to the matter of religion and harmonisation of irregularities arising at the
time of interpretation of Article 25(2)(b) and Article 26(b) of the Indian Constitution. The Apex
Court dismissed both the appeal and the application for special leave to appeal.

State of Rajasthan v. Gopi Kishan Sen

(1992)
The respondent, in this case, was appointed as an untrained teacher in Rajasthan in 1972. The
State of Rajasthan, who is the appellant, in this case, refused him his claim of salary on the pay
scale of Rs. 160-360/- per month. The respondent then made an application under Article 226 of
the Constitution of India in the High Court of Rajasthan which was allowed by the impugned
judgement. However, the pay scale of Rs. 160-360/- per month was given only to trained teachers.
The respondent was not a trained teacher and hence, he was appointed at a fixed salary of Rs.
130/- per month until he became trained which comes under the provisions of the Rajasthan Civil
Services (New Pay Scales) Rules, 1969 that is read with Rajasthan Education Subordinate Service
Rules, 1971.

The pay scales, however, have been revised subsequently. The amount of Rs. 130/- per month was
fixed as the salary of the untrained teacher and this provision was struck down by the High Court
in part, considering it to be illegal discrimination. Accordingly, the appellant was asked to pay the
respondent his salary at the higher rate for the period of 1972 to 1982 and this was challenged on
behalf of the appellant as flawed.

When the case reached the Supreme Court, the Court observed that the rule of harmonious
construction of seemingly contradictory statutory provisions is well recognized for as far as it may
be possible to uphold and give effect to all the provisions and avoid the interpretation which may
render any of them powerless.

Rule 29 of the Rajasthan Services Rules, 1951 dealing with the increment in pay scale is in
general terms, while the schedule in the Rajasthan Civil Services (New Pay Scales) Rules, 1969
has a special provision overseeing the untrained teachers. This case thus attracts the maxim
‘generalibus specialia derogant’ because when a special provision is made on a certain subject then
that subject is excluded from the general provision.
Unni Krishnan, J.P., etc. v. State of Andhra Pradesh
and Others (1993)
The case of Unni Krishnan was momentous with respect to the Right to education in India as it
contested the question of the ‘Right to life’ as provided under Article 21 of the Constitution of
India. Article 21 guarantees every citizen a right to education. The issues which came before the
Apex Court were, whether a citizen has a Fundamental Right to education for professional
degrees like medicine, engineering etc. and whether our Constitution guarantees the right to
education to all its citizens.

A writ petition was filed challenging whether the ‘Right to life’ under Article 21 also covers and
guarantees the right to education to all the citizens of India, and the right to education here also
includes professional education or degree.

The Supreme Court held that the right to basic education was inferred by the: Right to life under
Article 21 when read with Article 41 of the directive principle on education. The Court also
referred to Article 45 and inferred that there is no fundamental right to education for a
professional degree that emanates from Article 21. On the issue of the prevalence of Fundamental
Rights over Directive Principles of State Policy (DPSP), the Court commented that the provisions
of Part Three and Part Four are supplementary and complementary to each other and that the
Fundamental Rights and Directive Principles should be interpreted harmoniously as they form
the social conscience of the Indian Constitution.

Sirsilk v. Government of Andhra Pradesh

(1963)
In this case, the Sirsilk Company entered into a dispute with the Government of Andhra Pradesh
and their employees. The dispute was also taken to an Industrial Tribunal. After deciding on it,
the authority delivered its award in September 1957 after which it was to be published in the
Official Gazette of the Government of Andhra Pradesh. But the corporation and the employees
jointly asked not to publish the award because they had already resolved their disagreement
amicably. The Government declined to acknowledge the appeal of the parties after which the
parties lodged a writ application with the High Court, for issuance of an order to the government
for stopping them from publishing the issue of the award in a publication. The High Court
rejected the writ application and said that it was mandatory under Section 17 in the Industrial
Disputes Act, 1947 and the government should not withhold the publication of an award
submitted to it by the Industrial Tribunal. The appeal by the Sirsilk Company was then filed in
the Supreme Court by the parties.

The corporation and the employees submitted that since both the parties signed a resolution that
is binding to them under Section 18(1) of the Industrial Dispute Act, the government’s award
under Section 17(1), is daunting on the group and it should not be released. The resolution agreed
by the parties should be observed and the industrial peace preserved. The Government on the
other hand quoting the mandatory nature of Section 17(1) of the Industrial Dispute Act said that
the award had to be issued within 30 days of receipt of the same. The objective of the reference to
the Tribunal is to settle disputes and when a resolution is reached between the parties then the
question of the award for publication, issued by the Tribunal appears to be illogical and has no
essence since there is no conflict left to be resolved by publication of the award.
The Supreme Court observed that there is a difference of opinion between Section 17 and Section
18 of the Act and it is important to find a remedy that preserves the primary spectrum of the
Industrial Dispute Act. The Supreme Court held that the only way to resolve the two
contradictory clauses of such a case is to allow the Government to withdraw the publication of the
award and to permit the parties to continue with their resolution. The Supreme Court said that
while Section 17 and Section 18 of the Act were mandatory, in spite of the fact that the parties
have already settled their dispute amicably by agreement, in the present case, no dispute
remained to be resolved by the publication of the award, and hence, the Apex Court directed the
Government not to publish the award in compliance with Act 17(1) and the appeal was approved.

This decision of the Supreme Court is a perfect example of how one provisions’ rules can be
applied without rendering meaningless or obsolete another provision of the law.

K.M. Nanavati v. The State of

Maharashtra, (1961)
This is one of the most famous cases in Indian legal history and the jury trials were abolished
after this case in India. A Navy Commander KM Nanavati was accused of murdering his wife’s
secret lover, Prem Ahuja, and as a result, was held guilty under Section 302 of the Indian Penal
Code.

He was charged under Section 302 and Section 304 of the IPC and the trial was held by a Sessions
Judge, Bombay and the special jury held him not guilty under both the sections involved under
IPC. However, the Sessions Judge was dissatisfied with the jury’s decision as he felt that it was
not a logical decision taking into view the evidence of the case. So, he took the case to the High
Court of Bombay under Section 307 of the Code of Criminal Procedure, 1973 giving reasons for his
views. The High Court approved the reasoning of the Sessions Judge. The High Court said that
taking into account the circumstances of the case, the offence could not be reduced from murder to
culpable homicide not amounting to murder. The High Court held Nanavati guilty of the offence of
murder and this decision was further challenged in the Supreme Court. In the meantime, the
Governor of Bombay by the use of power vested in him under Article 161 of the Constitution of
India passed an order for the suspension of Nanavati.

The decision of the Governor was questioned because when the suspension was ordered the case
was sub-judice under the Supreme Court. Applying the principle of harmonious construction to
settle the conflict that arose between the executive and the judiciary, the Supreme Court held
that Article 161 and the suspension by the Governor was not applicable when the case was sub-
judice.

Calcutta Gas Company Private Limited v.

State of West Bengal (1962)
Oriental Gas Company Act,1960 was passed by the State Legislative Assembly of West Bengal.
The appellant, in this case, challenged the validity of this Act on the grounds that the State
Legislative Assembly had no power to pass such an Act under Entry 24 and Entry 25
(Constitution of India, List II) of the State since the Government wanted to take over the
management of the company. The appellant reasoned that the Parliament had already
enacted the Industries Development and Regulation Act, 1951 under Entry 52 of the Union
list/List I, which dealt with industries.

Entire industries in the State List are covered under Entry 24, and Entry 25 is only limited to the gas
industry. The Supreme Court in this case used the rule of harmonious construction and held that it
was clear that the gas industry was covered completely by Entry 25 of the State List over which the
State had full control. Therefore, the state had the power to make laws in this regard. Therefore, with
the help of the rule of harmonious construction, the Supreme Court expressed that the gas industry
came under Entry 25 which is a part of the State List, and this gives the State full control over it.

Conclusion
The judiciary and the courts in India are making all efforts to protect and maintain the object of every
provision of the Indian Constitution by using the doctrine of harmonious construction as one of the
tools. Using the principle of harmonious construction, the Indian Judiciary has tried to explain the
intention or objective of the framers of the Constitution for framing the different statutes. The rule of
harmonious construction brings consistency between different conflicting provisions so that none of
them is rendered powerless or dead-letter as there has been considerable thought by the legislature in
making them. Through the analysis of the different cases in this article, it can be concluded that the
principle of harmonious construction or interpretation is an effective tool of interpretation used by the
Indian courts to not only resolve conflicts but also to make important decisions on subject matters of
different lists.

Que21. Discuss the Extrinsic Aids of

Interpretation’ of statutes
Ans_ What are External Aids to the Interpretation of
Statutes?
External aids to interpreting statutes are sources of information and guidance utilised by courts
and legal professionals to understand the meaning and intent behind a particular statute.
These aids are external to the statute’s text and provide supplementary context for its
interpretation.

External aids provide valuable assistance in the interpretation of statutes. They help resolve
uncertainties and fill gaps in the statutory text. The legislative history, including committee
reports, debates and statements made by lawmakers during the drafting process, is a commonly
used external aid. It provides insights into the statute’s objectives, purpose and context,
assisting in determining the lawmakers’ intent.

Case law is another important external aid. Judicial decisions on related statutes or similar
legal issues can help understand the interpretation given by courts in previous cases. These
precedents serve as a guide for future interpretations and contribute to the development of legal
principles.

Other external aids include dictionaries, legal treatises and scholarly articles. Dictionaries help
ascertain the ordinary meaning of words used in a statute. Legal treatises and scholarly articles
provide academic analysis and expert opinions on statutory interpretation, aiding in
understanding complex legal concepts.
Parliamentary History
Parliamentary history is another external aid to the interpretation of statutes and comprises
the original form of statutes presented before the legislature’s enactment. The ministry
responsible for introducing the bill would have justified its enactment, known as the
Statements of Objects and Reasons, which hold significant importance. Additionally,
Parliamentary History encompasses records of debates held in Parliament, committee reports,
resolutions passed by both houses and any amendments made to the bill.

Previously, Parliamentary History did not serve as a tool for interpreting statutes. This
perspective originated from the traditional English legal system and was followed by the
Supreme Court of India. However, subsequent court cases led to a change in this view, including
Parliamentary History as an external aid to interpretation.

In the Ashwini Kumar Ghose v. Arabinda Bose case, Chief Justice Patanjali Shastri
expressed that the Statements of Objects and Reasons should not be considered an external aid
to interpretation. This was because these statements are presented during the bill’s processing,
and the bill may undergo several changes during that period, making the statements subject to
amendments.

However, in the case of State of West Bengal v. Subodh Gopal Bose, Justice S. R. Das took
the Statements of Objects and Reasons into account to assess the socio-political and economic
context of the introduced bill, while still acknowledging the view expressed in the Ashwini
Kumar case.

In the case of Indira Sawhney v. Union of India, the Supreme Court referred to a speech by
Dr B. R. Ambedkar in the Constituent Assembly while interpreting Article 16(4) of the Indian
Constitution. The Court held that although Parliamentary debate is not binding on the courts,
it can be considered to understand the context, background and legislative intent.

Historical Facts and Surrounding

Circumstances
Historical facts play a crucial role in establishing the context in which a statute was enacted,
providing background information and aiding in interpretation. This external aid to the
interpretation is particularly significant when applying the Mischief Rule of Interpretation, as
outlined in the case of Heydon. The Mischief Rule seeks to address four key points:

 The state of the law before the enactment of the statute in question.
 The earlier law failed to address the problem or issue (referred to as “mischief”).
 The remedy provided by the statute in question.
 The rationale behind the remedy.
These points directly correspond to the historical facts surrounding the statute, reflecting the
circumstances in which it was enacted. An example of the application of the mischief rule can
be seen in the case of Bengal Immunity Co. v. State of Bihar, which involved the
interpretation of Article 286. The court ruled that a state can impose sales tax only if all sale
elements have a territorial connection, preventing multiple states from imposing sales tax on
the same transaction.
Historical facts are the facts that led to the evolution of a statute. They can assist judges in
uncovering the true nature of the statute, enabling a more efficient legal process. Any relevant
historical facts that contributed to the development of the statute can be helpful in its
interpretation.

Scientific Inventions
In the interpretation of statutes, it is essential to consider any subsequent developments related
to the statute’s provisions. This is particularly relevant in fields like science and technology,
constantly evolving. Society is continuously progressing and rapid advancements are occurring
in various domains. Therefore, while interpreting statutes designed to govern these
developments, it is important to consider these evolving circumstances.

A notable case illustrating this principle is State v. J. S. Chawdhry, which involved Section
45 of the Indian Evidence Act, 1872. This section specifically mentioned handwriting experts
but did not include typewriting experts since typewriters were invented after the statute’s
enactment. However, in the case at hand, the party representing the state sought to rely on the
opinion of typewriting experts. The Supreme Court had previously held that the opinions of
typewriting experts were not admissible. Nevertheless, in this particular case, the Supreme
Court departed from its earlier view and deemed such opinions admissible.

This demonstrates the importance of considering subsequent developments and adapting the
interpretation of statutes accordingly, especially in light of technological advancements and
changing societal norms.

Other Statutes
When a statute lacks clarity regarding its intended meaning, other statutes in pari materia
that deal with the same or similar subjects can be considered for interpretation. It is also an
external aid to the interpretation of statutes. Although these statutes may not be identical, they
address related topics or different aspects of the same subject matter. They have corresponding
provisions despite being enacted at different times and under different circumstances.

In the case of State of Madras v. A. Vaidyanath Iyer, the accused, an income-tax officer,
was charged with accepting a bribe. The trial court sentenced him to six months of rigorous
imprisonment. However, the High Court acquitted the accused upon appeal, suggesting that he
may have borrowed money instead of accepting it as a bribe.

The Supreme Court, in its examination of Section 4 of the Prevention of Corruption Act, 1947,
ruled that if there is evidence that the accused accepted gratification in any form other than
legal remuneration, it shall be presumed that such gratification was accepted as a bribe, unless
proven otherwise. This provision was considered in pari materia with the Indian Evidence Act
1872, where the words ‘shall presume’ corresponded to the words ‘it shall be presumed’ in the
Prevention of Corruption Act. Consequently, the Supreme Court overturned the High Court’s
decision and found the accused guilty.

This case illustrates the application of the principle of pari materia, wherein related statutes
can be used to interpret ambiguous provisions and establish a consistent legal framework.

Foreign Decisions
Before independence, it was common for Indian courts to refer to English judgments when
deciding cases on specific matters. This was because the Indian legal system had its roots in
the English legal system, and many laws in England and India were similar. However, after
the enactment of the Constitution of India, the Supreme Court of India started placing
significant reliance on American judgments.

It is important to note that the decisions of foreign courts do not bind Indian courts and such
decisions are merely persuasive. In the case of M. V. Elisabeth v. Harwan Investment and
Trading Pvt. Ltd., the Supreme Court took a different stance from the English courts when
interpreting the phrase “damage caused by a ship” under Section 443 of the Merchant Shipping
Act, 1958. The court expanded the meaning of the phrase to include physical damage and
damage caused to the cargo within the ship.

This instance demonstrates that Indian courts have the discretion to depart from foreign court
decisions and interpret laws based on the specific context and requirements of Indian law.
While foreign judgments can provide persuasive authority, Indian courts ultimately have the
autonomy to arrive at their own interpretations.

Dictionaries and Textbooks

When a statute is unclear about its intended meaning, the principle of pari materia allows for
considering other statutes that deal with the same or similar subjects. While these statutes
may not be identical, they address related topics or different aspects of the same subject matter.
Despite being enacted at different times and under different circumstances, they contain
corresponding provisions.

For instance, in the case of State of Madras v. A. Vaidyanath Iyer, an income-tax officer
was accused of accepting a bribe. The trial court sentenced him to six months of rigorous
imprisonment, but on appeal, the High Court acquitted the accused, suggesting that he may
have borrowed money instead of accepting a bribe. However, the Supreme Court examined
Section 4 of the Prevention of Corruption Act, 1947.

It ruled that if there is evidence that the accused accepted gratification in any form other than
legal remuneration, it shall be presumed that such gratification was accepted as a bribe unless
proven otherwise. The Supreme Court considered this provision in pari materia with the Indian
Evidence Act, 1872, where the words ‘shall presume’ corresponded to the words ‘it shall be
presumed’ in the Prevention of Corruption Act. Consequently, the Supreme Court overturned
the High Court’s decision and found the accused guilty.

This case exemplifies the principle of pari materia, allowing related statutes to be used for
interpretation when the intended meaning of a statute is unclear, thus establishing a consistent
legal framework.

Conclusion: External Aids to

Interpretation
External aids to the interpretation of statutes include parliamentary history, historical facts,
scientific inventions, other statutes, foreign decisions and dictionaries/textbooks. It provide
valuable context and guidance for understanding the meaning and intent of a statute.
Que22. Discuss the doctrine of
retrospective operation of statutes. How far
has the doctrine been applied in India?
With the help of cases, elicit the opinion of
the Supreme Court of Indian in this
regard.

Ans_ I
Laws are made in any country to punish wrongdoers for the heinous crimes they might commit.
These are generally formulated when there are increased instances of people being left scot-free
despite committing an offence due to the lack of proper legal provisions. A prime example of this is
the anti-defection law, introduced in 1985 owing to mass defections. As a result, these laws are
applicable to similar crimes that might be committed in the future. However, there have been
several instances in which the newly formulated or amended laws could be used to hold a person
liable for offences committed before the introduction of that law as well. These types of laws or
amendments are very rarely found in any country and are known as retrospective laws or
statutes. Retrospective laws can generally be made for both criminal as well as civil offences. In
recent times, such legislation has become a topic of debate. While certain scholars are of the
opinion that such legislation directly violates the rights of the people, others feel it is necessary
that the wrongdoers get punished even though they committed a wrongful act that was
unrecognized at that point in time owing to the lack of any statutory provisions. This article will
delve deeper into all these aspects and resolve the existing ambiguities in such laws.

What is retrospective operation of statutes

The term ‘retrospective’ essentially means speculating or looking into the events or incidents that
have taken place in the past. When any law that was already existing is changed, altered, or some
portion of it is removed, it doesn’t remain the same as it was previously. However, the new
changes still have an influence on the events that occurred in the past. In other words, if a person
commits an act that was not considered to be an offence at that point under any legislation, but
becomes one after some changes in the existing laws or the introduction of a new law, the person
could be held liable even for the acts committed by him in the past that are now an offence.

This operation of a statute acts contrary to the general perception that any law is introduced to
consider the crimes that might be committed in the future. When a statute operates
retrospectively, however, the new law can be applied to the facts or the actions that were carried
out even before such a law had been proposed. When such a statutory provision is introduced
which aims to consider past actions as well, it is clearly stated that the act was said to be in
operation from the given date in the past. From that date forth, all the offences would be included
within the purview of the statute and the people would be punished. These statutes are also
known as ex-post facto laws. There can be four different scenarios that might arise when
retrospective legislation is introduced.

Recognition of crime
In this scenario, if a person carries out an act that was not wrongful at that point of time but later
on, due to the passing of legislation recognizing the same act as wrongful, he could be held liable.
This would happen when the law has a retrospective operation, making the person liable for acts
committed in the past that are wrongful or criminal in nature, due to the introduction of
legislation or a statute.

Removal of a crime
In a very rare scenario, ‘if a person has been sentenced for around 7 years for committing any
wrongful act, but 2 years later, the act committed by him is no longer unlawful with a
retrospective impact, the person could be directly released.’ It is a very rare situation to actually
happen that an act previously declared unlawful becomes a legal act.

An example of this is the decriminalization of Section 377 of the Indian Penal Code, 1860, which
stated that it had declared homosexuality a criminal offence. It is applied retrospectively to all the
citizens who were criminally charged because of their sexual orientation before the introduction of
this Act.

Reduction in punishment
Under this scenario, if the person has been punished for an act under any given statutory
provision but later on, some changes are made, leading to a reduction in the period of punishment.
This is a situation of a retrospective law dealing with amnesty to decriminalize certain acts and
grant a pardon to the wrongdoer. A person serving a prison sentence for a specified period will
have the punishment reduced owing to the same.

An example of this is the Amnesty Scheme. The government may introduce it to reduce the
payment of the late fee for tax filing. This would reduce the punishment for the late payment of
taxes.

Increase in punishment
When an existing law is amended with a retrospective impact to bring a wrongful act into a more
severe category than it was while being committed, the sentence or the term of punishment might
be increased for the wrongdoer. This might involve an increase in penalties, increasing the fines
payable, increasing the sentence of imprisonment, or any other factor.
These are some of the general impacts that a statute with a retrospective operation might have on
a person who committed a wrongful act recognized by the statutes later on.

General application of retrospective

operation of statutes
Substantive laws Retrospective laws are generally applied in a country to
either increase or decrease the punishment for any particular crime. They may be placed into a
more serious category or reduce the punishment of the crime, thereby reducing their sentence.
However, the treatment of retrospective laws also varies for the various laws. A retrospective
operation can only be given to a statute affecting the substantive rights of the people and could be
made applicable to the events that took place in the past. For example, if a person committed a
crime 2 years ago, which was held to be a punishable offence, the act now is no longer a crime
with a retrospective effect. It would be applicable to the person and he would be released. This is
an example of a retrospective operation on substantive law.

Procedural laws
On the other hand, the above-mentioned is not applicable to procedural laws. The procedural laws
generally have a retroactive operation and not a retrospective operation. The retroactive operation
essentially means that the statute introduces a new obligation or transaction and, at the same
time, impairs certain vested rights. Hence, the retrospective operation of laws applies only to the
substantive laws and not to the procedural ones.

Declaratory laws
A declaratory statute refers to a statutory provision that aims to remove any ambiguities related
to prior law, either by explaining the previous statute or by reconciling the conflicts in various
judicial decisions. The declaratory laws, as a result, have a retroactive operation as they aim to
improve the prior laws. It is only when the rights are vested or the litigation is settled that they
are applied retrospectively, as stated in the case of Commissioner of Income Tax v Sriram
Agarwal (1986).

Explanatory laws
Explanatory statutes are also very similar to declaratory statutes and have a retrospective
application. These statutes aim to explain the law and rectify all the omissions that existed in the
previous laws.

Criminal applicability of retrospective

operation of statutes
Retrospective laws can certainly be made for criminal acts. However, these are not encouraged in
India. This is so because holding a person liable for an act committed by him in the past, which
was not unlawful at that point but now is, would be clearly unjustified. Most of the interpreted
legal provisions state that the punishment for the offences is prohibited from having a
retrospective effect. Only if stated in an implied manner with the appropriate intention, the new
punishments introduced under the laws are allowed to have a retrospective impact.

Difference between retrospective laws and ex-

post facto laws
Though both the retrospective and ex-post facto laws might have the same effect most of the time,
there are slight differences that exist between them. While all the ex-post facto laws are
necessarily retrospective laws, all retrospective laws are not ex-post facto laws. While ex-post
facto laws are prohibited in India, there is no such express prohibition on retrospective laws.
There are several retrospective laws that aren’t ex-post facto laws that are allowed to be
introduced for the purpose of amnesty in taxation, criminal punishment, etc. The retrospective
laws only look backward at the events of the past, but the ex-post facto laws act on the things that
are in the past. The retrospective laws aim to focus on acts committed in the past before the
commencement of the statute. On the other hand, any ex-post facto law might impose various new
obligations on the transactions or any act committed by an individual or impair the vested rights.

These are the major differences between ex-post facto laws and retrospective laws. In most
situations, these terms can be used synonymously. Yet, there are several laws that can have a
retrospective operation but can’t be ex-post facto laws, such as the amnesty schemes of taxation.

Ex post facto laws Retrospective laws

All retrospective laws are certainly not ex

All ex post facto laws are to be necessarily
post facto laws. These are a bigger set of
retrospective laws.
which ex post facto laws form a part.

Retrospective laws, if explicitly mentioned,

Ex post facto laws are prohibited to be
are allowed to be introduced, however, with
formulated in India.
certain restrictions.

Ex post facto laws impose various new

Retrospective laws focus on all the acts
obligations on the transactions or acts
committed in the past before the
committed by an individual or impair certain
commencement of the statute.
vested rights.

Difference between retrospective and

retroactive laws
The retrospective and retroactive laws both aim to look into the past, but the method of dealing
with the laws is different. While the retrospective laws just aim to look into the legal provisions of
the past, the retroactive laws not only look into the past but also aim to act upon them.

In the case of Jay Mahakali Rolling Mills v. Union of India (2002), the Supreme Court provided
the distinction. The Court stated that retrospective means the law which contemplates the past,
referring to a given statute that was there previously. It is made applicable to all the events that
occurred in the past before the new law came into force. On the other hand, a retroactive statute
refers to any statute that aims to look into the previous legislation and create certain new
obligations or transactions. At the same time, it might even impair or destroy certain vested
rights.

The Court further went on to say that retroactive laws aim to cover two distinct concepts. One is
true retroactivity, which involves the application of a new rule to an act that was carried out
before the rule had been made. The other is quasi retroactivity which applies to an act that is still
in the process of completion. On the other hand, the retrospective operation might become very
ambiguous. Such statutes, however, generally operate in cases that affect, even if only for the
future, the character of acts the person has previously indulged in.

These are some of the major differences between retrospective and retroactive laws, but the one
thing common to both is that they both focus on past acts.

Applicability of retrospective operation of

statutes in India
In India, the retrospective operation of any statute is prohibited for any civil offence.
The Constitution of India doesn’t permit a retrospective operation of any given act unless there is
any implication in law stating that the law that is there has to be retrospective in nature. Any Act
that is introduced in India that is held to be retrospective but has not been specifically implied in
the act, is said to be unconstitutional as well as void.

Making ex-post facto laws is completely prohibited under the fundamental rights stated in the
constitution of India. Under Article 20(1) of the Constitution, it has been clearly stated that there
could be no retrospective impact of the formulated laws on offences committed before the
introduction of the statute. The primary objective of this article is to ensure that the law and
order are maintained properly and that there is absolutely no illegal detention taking place. The
person who carried out an act at that point was completely aware that it was not unlawful, and
later on, if it is declared to be unlawful, it is clearly violative of his rights. The person won’t have
knowledge of any sort that the act he committed would be in the future declared unlawful or
illegal and hence should not be punished.

Examples of retrospective legislation in India

There are various examples of retrospective legislation in India. Though these laws primarily deal
in the field of taxation, there have been several other laws introduced in India.

One of the examples of such legislation is the Karnataka Scheduled Caste and Scheduled Tribe
(Prohibition of Transfer of Certain Lands) Act, 1978, which was retrospective in nature. This Act
aimed to prohibit the transfer of land granted by the government to people belonging to the
Scheduled Castes and the Scheduled Tribes. This law was also applicable on the land under the
ownership of the Scheduled Castes and the Scheduled Tribes before the enactment of this law.
Nobody was even allowed to purchase the land owned by the people belonging to SC and ST
communities.
Another major legislation was the Tamil Nadu Land Acquisition (Revival of Operation,
Amendment, and Validation) Act, 2019, whose constitutional validity was recently upheld by the
Supreme Court, which was going to be applied retrospectively till the year 2013. The reasoning
behind this decision of the Supreme Court was that the basic principle of the legislature is to
protect the public interest at large. The legislature is at the helm of protecting the rights of the
people and ensuring a democratic polity among the people. Hence, any step taken towards
achieving this purpose is considered to be lawful, and the contention raised by the petitioner that
it violated the principle of the separation of powers is completely invalid. For the public good, any
law can be operated retrospectively without any stoppage since the law doesn’t completely
prohibit the same.

However, if any retrospective law is to be introduced, it is only allowed for criminal matters and
not in the case of civil matters.

Retrospective laws for taxation

The retrospective laws are generally utilized for tax-related matters, such as the Amnesty
scheme. Those who fail to file their taxes on time are provided with some rebate, especially in the
times of Covid-19. There were crores of people who lost their jobs and many even went bankrupt.
Even small industrialists suffered a lot during this period. Many of them become incapable of
paying their taxes on time.

It is at this point in time that the government can make good use of retrospective statutes. People
would need to pay fewer taxes if the government amended the Income Tax Act, 1961 to state
fewer taxes to be paid with a retrospective effect. At the same time, this operation can be used to
impose some justified charges on transactions that have been carried out in the past. Such
retrospective taxes help in rectifying any deviations in the taxation policies that previously
allowed businesses to benefit from any kind of loophole.

There were several amendments that took place in this Act that were retrospective in nature. An
example of the same is explanation 7 to Section 9(1)(i) of the Income Tax Act, 1995, which had to
be applied retrospectively. It was declared by the Court in the case of Augustus Capital PTE Ltd v
DCIT (2020) that explanation 5 of the Income Tax Act was applied retrospectively for the removal
of any doubt with respect to the payment of the interest amount. Later explanations 6 and 7 were
introduced that had to be read along with explanation 5 for providing further clarity regarding the
accrued income. Since explanation 5 was applied retrospectively, the same should be the
treatment of explanations 6 and 7. Hence the assessing officer, in this case, was ordered by the
Court to read the concerned explanation 7 of Section 9(1)(i) as applicable from the year under
consideration and that there shall be no further additions or questions regarding the same.

Another landmark case with regard to Section 9 of the Act is Ishikawajima Harima Heavy
Industries Ltd v. Director of Income Tax (2007). Section 9 of the Act gave a whole new dimension
to the concept of ‘income deemed to have accrued in India’. The company concerned in this case
was involved in selling its products in the Indian market but was incorporated in Japan. There
was a question in this case regarding the tax treatment of the fees for technical services that were
to be paid by the non-resident companies in India. The Apex Court in this particular case held
that two conditions are to be fulfilled for explanation 7 of Section 9 of this Act to be made
applicable. The services from which the company is earning money on which the taxes are to be
imposed must be rendered as well as utilized in India. If both these conditions are satisfied, the
income is said to be accrued in India.
This judgement completely reversed the general perception that if the technical or consultancy
services were provided in India, the company would be liable to pay the taxes regardless of
whether these services were rendered outside India or not.

Further, the retrospective operation can also be used when the policies in the present and the past
were very different owing to the fact that firms were required to pay a lesser amount of tax. In
order to create a level playing field and to ensure justice and fairness in the payment of taxes. The
most recent example of a retrospective taxation law is the policy under the Union Budget 2022-23.
It brought about certain amendments to the Income Tax Act, 1961, which carried a retrospective
impact. The examples of various amendments brought about under the Income Tax Act, 1961 are
as follows.

1. The government allowed an exemption on the amount received for the medical
treatment and on the account of death due to Covid-19 retrospectively from April 2020.
2. The gifts and freebies provided to the doctors are not going to be treated as business
expenditures under Section 37 of the Income Tax Act of 1961. Further, even capital
expenditures of a personal nature are not to be reflected as expenditures under this
given act.
3. There was also a retrospective change brought about in the financial year 2005-06
wherein it was stated that any form of cess or surcharge couldn’t be deducted in the
form of expenditure.
4. With respect to the funding of companies, it has also been laid down in the budget that
the source of funding for any given loan or borrowing for its recipient is going to be
reflected only if the source of funds is appropriately explained in the hands of the
creditor. This measure is retrospectively going to impact all the major business ventures
in their funding processes. It would have a much more adverse impact on the Startups if
the creditor is not a venture capital fund that is legally registered with the SEBI
(Securities and Exchange Board of India). Earlier, only the PAN of the creditor by the
taxpayer would suffice, but now this is no longer the case. The recipient is required to
prove that it is the right source of income and that the creditor’s net worth was
appropriate to provide this amount.
Hence, the retrospective operation of the various amendments in the Income Tax Act, 1961 has
played a vital role in ensuring the fair payment of taxes by every individual on time. Secondly, it
has facilitated the introduction of amnesty schemes to provide some relief to small businessmen
and industrialists.

Relevant judgements

Commissioner of Income Tax v. Hindustan

Electrographite Ltd (1998)
In this particular case, the assessee was a public limited company, which had filed the income tax.
Apart from that, there was an additional amount representing the cash compensatory support
that wasn’t offered to the tax as an adjustment. It was not required under the Act prevailing in
1989. However, there was the introduction of the Finance Act of 1990 with a retrospective effect,
stating that the tax is also required to be paid on cash assistance.
The suit was henceforth filed in the Court, stating that these provisions are penal in nature.
However, the Court in this case declared that the provisions of this Act were not penal and, hence,
this legislation can certainly be retrospective in nature. It is only a penal law on which the
retrospective operation can’t take place.

Garikapatti Veeraya v. N Subiah Choudhary (1957)

In this case, there was an issue in the appeal from the trial court to the Supreme Court. Since the
amount of the suit was Rs 11,000 but the amount required for an appeal before the High Court
was required to be Rs 20,000, the appeal was not allowed. In this case, the Court stated that if
there is an absence of any statement to show that the law has a retrospective operation, it can’t be
determined to be the same. Hence such laws also cannot change the existing laws that are to be
applicable for determining the validity of any claim in the Litigation.

Ratan Lal v. State of Punjab (1964)

In this particular case, a boy who was 16 years old was held liable for committing trespass and for
outraging the modesty of a 7-year-old girl. He was ordered to rigorous imprisonment by the
magistrate and a certain amount of fine was also imposed upon him. However, later on, the
legislation known as the Probation of Offenders Act, 1958, came into force, in which it was stated
that any person below the age of 21 should not be imprisoned. The Court in this case held that
any legislation could be operated in a retrospective manner for the benefit of that person to reduce
the punishment. Hence, any form of ex-post facto law which is required for the benefit of the
accused is not prohibited from being introduced retrospectively under Article 20(1) of the Indian
Constitution.

Assistant Excise Commissioner, Kottayam and Ors v.

Esthappan Cherian and Anr (2021)
In this case, a writ petition had been filed wherein it was demanded that the amendment to Rule
13 terminating the liquor license should be quashed. As a result, a certain amount that was
sought to be recovered by him for giving the liquor license in the past had been stuck.

The decision in the High Court of Kerala was passed in favour of the licensee. However, an appeal
was made before the Supreme Court. The Supreme Court overruled the High Court’s decision and
stated that any rule or law that is passed cannot be interpreted to be retrospective unless it
explicitly mentions the opposite. Hence, the state was allowed to claim only 50% of the
departmental management fees that were due for the period after the contract of sale for the
liquor was terminated from the licensee.

Hitendra Vishnu Thakur v. State of Maharashtra

(1992)
This case defined the scope of the amendment brought in an Act and whether it should be allowed
to operate retrospectively. The Court laid down that if any given law affects the substantive rights
of any individual, then it should not be allowed to operate retrospectively. Apart from this, several
other general principles were also laid down in this case, which are as follows.

1. If any Act affects the substantive rights of an individual, it is assumed to be prospective

in its operation unless stated expressly, either in oral or written form that the law is
said to operate in a retrospective manner.
2. Each and every person who approaches the court for certain claims is said to have
certain rights stated in substantive law but these are not stated in any procedural law.
3. All the laws relating to forum and limitation are said to be procedural, but all the laws
relating to the right to appeal or the right to take any given action are substantive.
4. Any Act that changes the procedure or leads to a change in the period of punishment
shall be presumed as prospective in operation unless stated otherwise either in spoken
or through a written mode.
5. A procedural statute should not be applied retrospectively where the impact of the same
is going to create new rights or obligations or even impose new duties on any transaction
that has already taken place.

Applicability of retrospective operation of

statutes at the global level
The retrospective statutes are still used in several countries, however, within certain restrictions.
Some of the countries have been mentioned below.

United Kingdom (UK)

Under English law, there is a presumption that, unless stated specifically, the statutes are not
assumed to have a retrospective effect. However, if a clear intention of any law being applied
retrospectively has been specified, there is no need to stop the same from being implemented. An
example of it was the Wireless Telegraph (Validation of charges) Act 1954, which provided the
basis of a statutory provision for the wireless license fees that have been collected for the last 50
years. In the Supreme Court judgement of Walker v Innospec Ltd and Ors, 2017 it had been
clearly stated by the Court that any enactment unless a contrary intention has been expressly
stated, is going to be prospective in nature. Hence similar to the rule in India, every statute shall,
by default have a prospective application.

Australia
In Australia, both the state and the Central Government have the power to make retrospective
laws that would also apply to past events. However, this has been criticized time and again in
Australia for being violative of the rule of law. This is so because, under the Australian principle
of the rule of law, the law must be known to all so that they can comply with it. In the case of R v
Kidman (1915), the retrospective operation was challenged for the first time. However, the High
Court, in this case, stated that though the power of the Australian Parliament is limited by
the Constitution, there is no limit on either the State Legislature or Parliament to formulate any
retrospective law.
France
In France, the formulation of ex-post facto laws was completely prohibited, as per Article 2
of Code Civil or the Napoleonic Code. The basic reasoning given in this Article is that the law
should only look into the future and shouldn’t be retrospective in nature. However, it was later
determined by the Constitutional Council, one of the highest authorities in France, that
retrospective laws could be introduced within certain limits. Similar to India, the council
generally also introduces retrospective laws relating to taxation. In criminal law, the punishments
as per the ex-post facto laws are still prohibited except in those cases where this legislation might
benefit the wrongdoer.

United States of America (USA)

Congress in America is prohibited from making any ex-post facto laws. This is one of the very few
restrictions imposed by the Constitution of the United States of America on both the state and
federal governments. When deciding upon the ex-post facto cases, the Court has relied upon the
judgement given in the case of Calder v Bull (1798), in which it proposed the four forms of
unconstitutional ex-post facto laws. However, it has not always been the case that ex-post facto
laws aren’t allowed. There was an Act introduced in 2006 known as the Adam Walsh Child
Protection and Safety Act that imposed certain new rules for registration for convicted sex
offenders, also applying to those who had committed these offences in the past. Hence, for the
common good of society, retrospective operation of statutes is prohibited in most situations.

Difference between retrospective and

prospective operation of statutes
1. A prospective operation of any statute essentially means that the statute as it is
formulated is solely focused on the future acts or offences that might be committed. It
doesn’t consider any past act or incident that happened that in the present times would
have constituted a crime. On the other hand, the retrospective operation of the law is in
absolute contradiction with prospective laws. Under this form, the law that has been
passed or the amendment made to the current times is also going to be applicable to the
events carried out in the past which would now constitute an offence. Hence, this
contradicts the general presumption of the law being effective in the future.
2. Any law, unless stated otherwise, is considered to be prospective in nature, i.e., to be
effective from either the date of its enforcement or from any other future date. This is
not the case with retrospective legislation. If such legislation is to be introduced, the
legislators need to specify the past date from which the law is going to be applicable.
Also, the Supreme Court has the power to decide whether a law should be enforced
retrospectively or not.
3. In India, all the laws relating to both civil and criminal matters can have prospective
operation. In other words, all the statutory provisions are going to be applicable to
future events or any of the acts. However, the retrospective statutes can only be used for
criminal matters and not civil ones.
4. The retrospective operation of any statute is most of the times highly criticized by the
people for violating their rights. While committing that act, they didn’t have the
knowledge that it was going to become unlawful in the future for which they could be
punished. On the other hand, there is general acceptance by the public for the
 prospective operation of the statutes because they acquire complete knowledge about the
various offences and hence don’t commit them to attract any penalty.
5. Most countries in this world don’t recognize the retrospective operation of any statute or
with certain restrictions. Even in India, Article 20(1) of the Constitution prohibits the
enforcement of any retrospective law or amendment which might be harmful to the
rights of the citizens. However, the same is not the case with prospective legislation.
They are always given preference because it upholds the values of democracy and, at the
same time, is the most favourable path to follow as people acquire the necessary
information about offences.
These are some of the major differences between the retrospective and prospective operation of
the statutes.

Retrospective operation of statutes Prospective operation of statutes

Such a statute focuses on the events of the Such a statute focuses solely on events
past, and the new laws introduced are resorting to wrongful acts after the
applicable to those past events. introduction of the act or the amendment.

Any statute introduced, unless expressly

No statute is presumed to ever be
stated otherwise, is considered to be
retrospective in nature.
prospective in nature.

A statute can have a retrospective

operation only when it is concerned with Any statute, whether concerned with civil or
civil matters and not criminal matters. criminal matters, is presumed to have
Criminal matters can only have a prospective operation.
retroactive operation.

The prospective statutes enjoy acceptance

Retrospective statutes are generally
from the general public and the governments
criticized by society and not recommended
are also mostly in favour of such statutes.
by governments because of their being
These uphold the democratic values of justice
unfair and unjustified toward the citizens.
and the rule of law.

The retrospective operation of statutes is

All countries generally accept all the new
still not recognized in most countries. In
laws to be applicable for future events, i.e.,
several other countries, these can be
prospective operation of the laws.
introduced with several restrictions.

Issues with retrospective operation of statutes

The primary intention behind introducing retrospective laws is to ensure that the people who
escaped liability in the past are held responsible or to reduce their punishment. However, its
enforcement poses many challenges to democracy and also brings the government under scrutiny.
Some of its ill effects are as follows:

1. It is violative of the basic rights of the people. It is directly violative of the principle of
the rule of law since the people aren’t treated equally in this situation.
 2. When a retrospective law is introduced, the people who previously committed the
offence don’t have the required knowledge to comply with the same. The law is enforced
later but the person is punished for his/her past acts which is completely unjustified.
3. In the case of retrospective laws, the assent of the Supreme Court is required which
could certainly cause some delays.
4. A statute can have a retrospective operation only in criminal and taxation matters
thereby reducing its scope significantly.
5. The retrospective laws can be used to obtain certain taxes which were evaded by the
people previously making use of the loopholes. At times, it becomes very difficult to
determine the year in the past from which it should be made applicable because the
interests of both the government and the people are to be considered.
6. The amendments which are retrospective in nature are most of the time very short-
sighted or short-lived that it steals the existing law of its stability which is essential for
its healthy growth.
7. Only the substantive civil laws can be operated retrospectively; the rest all have to be
operated retroactively. This acts as a limit to the retrospective laws.
These are some of the major limitations of retrospective legislation. There are problems not only
with the procedural aspects of it with the various formalities but also with respect to the
democratic values, including the people’s rights.

Conclusion
The retrospective operation of statutes is highly beneficial in certain areas but, at the same time,
could be violative of people’s rights. The procedural aspects could also be very complicated if seen
along with the Constitution of India. As a result, there is a need to balance the interests of both
the government and the citizens by some measures. After observing all the aspects relating to it,
it is fair to conclude that such laws have more negative as compared to positive impacts on
society. Hence, except for certain circumstances in which there is no other alternative, these laws
or amendments should not be allowed. Even with the recent Supreme Court judgements,
legislators have the power to make retrospective legislation. They should still be used within
reasonable limits so that there is fair justice for all. The purpose of law-making would be fulfilled
only by ensuring fair justice. Any law, regardless of its retrospective or prospective application,
should always uphold the democratic principle; if it is otherwise, as could be possible in the case of
retrospective legislation, appropriate action must be taken.

23-01-2024