Transcript
Q. Discu Discuss ss the rules rules of stat statuto utory ry interp interpret retati ation on with with the the help help of decide decided d cases. cases. Ex Expla plain in - Liter Literal al Rule, ule, Misc Mischie hieff Rule (aka (aka Rule in Haydo Haydons ns case!, case!, "olden "olden Rule, ule, Rule of Har#o Har#onio nious us $onst $onstruc ructio tion, n, %oscitur a sociis, E&usde# 'eneris, Reddendo sin'ula sin'ulis. tate the circu#stances when these rules are applied )y the courts.
*ntroduction Statutory interpretation interpretation is the process of interpreting and applying legislation to decide cases. Interpretation is necessary when case involves subtle or ambiguous aspects of a statute. Generally, the words of a statute have a plai plain n and and stra straig ight htfo forw rwar ard d mean meanin ing. g. Bu Butt in some some case cases, s, ther there e may may be ambiguity or vagueness in the words of the statute that must be resolved by the the judg judge. e. The The reason eason for for ambi ambigu guit ity y or vagu vaguen enes ess s of legi legisl slati ation on is the the fund fundam amen enta tall natur nature e of lang langua uage ge.. It is not not alwa always ys poss possib ible le to prec precis isel ely y transform the intention of the legislature into written words. Interpreting a statute to determine whether it applies to a given set of facts, often boils down down to anal analyz yzin ing g whet whethe herr a sing single le wor word or sh shor ortt phra phrase se cove covers rs some some elemen elementt of the factua factuall situati situation on befor before e the judge. judge. The epan epansiv sivene eness ss of language necessarily means that there will often be e!ually good or e!ually unconvincing arguments for two competing interpretations. " judge is then forced to resort to documentation of legislative intent, which may also be unhelpful, and then #nally to his or her own judgment of what outcome is ultimately fair and logical under the totality of the circumstances. To #nd the meanings of statutes, judges use various tools and methods of statutory inter interpr preta etatio tion, n, includ including ing tradit tradition ional al canons canons of statut statutory ory interp interprretatio etation, n, legislative history, and purpose. In common law jurisdictions, the judiciary may apply apply rules rules of statut statutor ory y inter interpr preta etatio tion n to legisl legislati ation on enacte enacted d by the legi legisl slat atur ure e or to dele delega gate ted d legi legisl slat atio ion n su such ch as admi admini nist stra rati tive ve agen agency cy regul regulati ations ons.. $ver $ver time, time, variou various s method methods s of statut statutory ory interp interpre retat tation ion and construction have fallen in and out of favor. Some of the important rules of statutory interpretation are%
Primary Rules & Literal Rule (aka +lain Meanin' Rule! & It means that statutes are to be interpreted using the ordinary meaning of the language of the statute unless a statute eplicitly de#nes some of its terms otherwise. In other words, the law must be read, word for word, and it should not divert from its true meaning.
Mischief rule & This rule attempts to determine the legislator's inte intent ntio ion. n. $rig $rigin inat atin ing g from from a () ()th th cent centur ury y case case in the the *nit *nited ed +ingdom, its main aim is to determine the mischief and defect that the statute in !uestion has set out to remedy, and what ruling would e-ectively implement this remedy remedy.. Smith vs. ughes /(0)12
3 "ll 4.5. 670 "olden rule & It is a compromise between the plain meaning 8or literal9 rule and the mischief rule. :i;e the plain meaning rule, it give gives s the the wor words of a stat statut ute e thei theirr plai plain, n, ordi ordina nary ry mean meanin ing. g. owever, when this may lead to an irrational result that is unli;ely to be the legislature's intention, the judge can depart from this meaning. In the case of homographs, where a word can have more than one meaning, the judge can choose the preferred meaning. If the word only has one meaning, meaning, and applying applying this meaning meaning would would lead to a bad decision, the judge can apply a completely di-erent
meaning. Rule of Har# Har#oni onious ous $onstr $onstruct uction ion & when there are two provisions in a statute, which are in con>) 8S=9.
Secondary Rules aka Rules of Language & ?oscitur a sociis & @hen a word is ambiguous, its meaning may be determined determined by reference reference to the rest of the statute. sta tute. 4jusdem Generis & @hen a list of two or more speci#c descriptors are are follow followed ed by more more genera generall descri descripto ptors, rs, the otherw otherwise ise wide wide meaning of the general descriptors must be restricted to the same class, if any, of the speci#c words that precede them e.g. vehicles in car cars, moto otor bi; bi;es, motor otor powe powerred vehic hicles les woul would d be interpreted in a limited sense and therefore cannot be interpreted as including air planes. 5eddendo Singula Singulis & @hen a list of words has a modifying phrase at the end, the phrase refers only to the last word, e.g.,
Mischief rule & This rule attempts to determine the legislator's inte intent ntio ion. n. $rig $rigin inat atin ing g from from a () ()th th cent centur ury y case case in the the *nit *nited ed +ingdom, its main aim is to determine the mischief and defect that the statute in !uestion has set out to remedy, and what ruling would e-ectively implement this remedy remedy.. Smith vs. ughes /(0)12
3 "ll 4.5. 670 "olden rule & It is a compromise between the plain meaning 8or literal9 rule and the mischief rule. :i;e the plain meaning rule, it give gives s the the wor words of a stat statut ute e thei theirr plai plain, n, ordi ordina nary ry mean meanin ing. g. owever, when this may lead to an irrational result that is unli;ely to be the legislature's intention, the judge can depart from this meaning. In the case of homographs, where a word can have more than one meaning, the judge can choose the preferred meaning. If the word only has one meaning, meaning, and applying applying this meaning meaning would would lead to a bad decision, the judge can apply a completely di-erent
meaning. Rule of Har# Har#oni onious ous $onstr $onstruct uction ion & when there are two provisions in a statute, which are in con>) 8S=9.
Secondary Rules aka Rules of Language & ?oscitur a sociis & @hen a word is ambiguous, its meaning may be determined determined by reference reference to the rest of the statute. sta tute. 4jusdem Generis & @hen a list of two or more speci#c descriptors are are follow followed ed by more more genera generall descri descripto ptors, rs, the otherw otherwise ise wide wide meaning of the general descriptors must be restricted to the same class, if any, of the speci#c words that precede them e.g. vehicles in car cars, moto otor bi; bi;es, motor otor powe powerred vehic hicles les woul would d be interpreted in a limited sense and therefore cannot be interpreted as including air planes. 5eddendo Singula Singulis & @hen a list of words has a modifying phrase at the end, the phrase refers only to the last word, e.g.,
#remen, policemen, and doctors in a hospital. ere, in a hospital only applies to doctors and not to #remen or policemen. :iteral 5ule & " statues often contains a de#nitions section, which eplicitly de#nes the most important terms used in that statute. owever, some statutes omit a Ade#nitions section entirely, or fail to de#ne a particular term. The literal rule, which is also ;nown as the the plai plain n meani meaning ng rule rule,, atte attemp mpts ts to guid guide e cour courts ts faced faced with with litigation that turns on the meaning of a term not de#ned by the stat statut ute, e, or on that that of a wor word foun found d with within in a de#n de#nit itio ion n itse itself lf.. "ccording to this rule, when a word does not contain any de#nition in a stat statut ute, e, it must must be give given n its its plai plain, n, ordi ordina nary ry,, and and lite litera rall meaning. If the word is clear, it must be applied, even though the intention of the legislature may have been di-erent or the result is harsh or undesirable. The literal rule is what the law says instead of what the law means ans. This is the oldest of the rules of construction and is still used today, primarily because judges are not supposed to legislate. "s there is always the danger that a parti particul cular ar inter interpr preta etatio tion n may be the e!uiva e!uivalen lentt of ma;ing ma;ing law, law, some judges prefer to adhere to the law's literal wording. @hen the words of a Statute are clear, plain or unambiguous, i.e. they are reasonably susceptible to only one meaning, the courts are bound to give e-ect to that meaning irrespective of conse!uences. In C.D. Bansal v. State of 5ajasthan 311E, S= observed that the intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said said as also also to what what has has not not been been said said.. "s a cons conse! e!ue uenc nce, e, a construction which re!uires for its support, addition, substitution, or remov emoval al of wor words or whic which h resul esults ts in rejec ejecti tion on of wor words as meaningless has to be avoided. This is accordance with the case of =rawfo =rawford rd vs Spoone Spooner, r, (6 (6>) >),, where where privy privy counci councill noted noted that that the courts cannot aid the legislature's defective phrasing of an "ct, they they cann cannot ot add add or mend mend,, and and by cons constr truc ucti tion on ma; ma;e up for for de#ciencies which are left there. In +annailala Sur vs Darammindhi Sadhu +han (07F, (07F, C Gajendragad;ar says that if the words words used in statute statute are capable of only one construction construction then it is not open to the courts courts to adopt adopt any other other hypoth hypotheti etical cal constr construct uction ion on the ground that such construction is more consistent with the alleged objective and policy of the act. In H Coshi vs H Shimpi, "I5 (0)(, relating to ood and "dulteration "ct, it was contented that the act does not apply to butter made from curd. owever, S= held
that the word butter in the said act is plain and clear and there is no need to interpret it di-erently. Butter is butter whether made from mil; or curd. Thus, when the language of a provision is plain and clear, court cannot enlarge the scope of the provision by interpretive process. urther, a construction which re!uires for its support addition of words or which results in rejection of words as meaningless has to be avoided.
danta'es Droponents of the plain meaning rule claim that it prevents courts from ta;ing sides in legislative or political issues. They also point out that ordinary people and lawyers do not have etensive access to secondary sources and thus depending on the ordinary meaning of the words is the safest route. It encourages precision in drafting.
Disadanta'es
$pponents of the plain meaning rule claim that the rule rests on the
erroneous assumption that words have a #ed meaning. @ords are imprecise,
leading justices to impose their own prejudices to determine the meaning of a
statute. owever, since little else is o-ered as an alternative discretion&
con#ning theory, plain meaning survives. Sometimes the use of the literal rule may defeat the intention of
Darliament. or instance, in the case of @hiteley vs =happel 8(6)6J :5 > KB
(>F9, the court came to the reluctant conclusion that @hiteley could not be
convicted of impersonating any person entitled to vote at an election,
because the person he impersonated was dead. *sing a literal construction of
the relevant statutory provision, the deceased was not a person entitled to
vote. This, surely, could not have been the intention of Darliament. owever,
the literal rule does not ta;e into account the conse!uences of a literal
interpretation, only whether words have a clear meaning that ma;es sense
within that contet. If Darliament does not li;e the literal interpretation,
then it must amend the legislation. It obliges the courts to fall bac; on standard common law principles of
statutory interpretation. :egislation is drawn up with these principles in
mind. owever, these principles may not be appropriate to constitutional
interpretation, which by its nature tends to lay down general principles. It
is said that it seems wrong to parcel the =onstitution as if it were a inance
"ct. =learly, the literal approach has another disadvantage in that one judgeLs
literal interpretation might be very di-erent from anotherLs. =asey says%
A@hat may seem plain to one judge may seem perverse and unreal to another. It ignores the limitations of language. To place undue emphasis on the literal meaning of the words is to assume
an unattainable perfection in draftsmanship. Cudges have tended ecessively to emphasise the literal meaning of
statutory provisions without giving due weight to their meaning in wider
contets.
ischief 5ule The ischief 5ule is used by judges in statutory interpretation in order to
discover legislature's intention. It essentially as;s the !uestion% By
creating an "ct of Darliament what was the mischief that the previous or
eisting law did not cover and this act covers. This rule was developed by
:ord =o;e in Sir Cohn eydon's =ase, (76>, where it was stated that there were
four points to be ta;en into consideration when interpreting a statute%
@hat was the common law before the ma;ing of the actM @hat was the mischief or defect for which the common law did not
provideM @hat remedy the parliament hath resolved and appointed to cure the disease
of the commonwealthM @hat is the true reason of the remedyM
The application of this rule gives the judge more discretion than the literal
and the golden rule as it allows him to e-ectively decide on Darliament's
intent. :egislative intent is determined by eamining secondary sources, such
as committee reports, treatises, law review articles and corresponding
statutes. The rule was further illustrated in the case of Smith v ughes,
(0)1, where under the Street $-ences "ct (070, it was a crime for prostitutes
to loiter or solicit in the street for the purposes of prostitution. The
defendants were calling to men in the street from balconies and tapping on
windows. They claimed they were not guilty as they were not in the street.
The judge applied the mischief rule to come to the conclusion that they were
guilty as the intention of the "ct was to cover the mischief of harassment
from prostitutes.
This rule is of narrower application than the golden rule or the plain meaning
rule, in that it can only be used to interpret a statute and only when the
statute was passed to remedy a defect in the common law. This rule has often
been used to resolve ambiguities in cases in which the literal rule cannot be
applied. "s seen In Smith v ughes, the mischief approach gave a more sensible
outcome than that of the literal approach.
"dvantages
The :aw =ommission sees it as a far more satisfactory way of interpreting
acts as opposed to the Golden or :iteral rules. It usually avoids unjust or absurd results in sentencing
Nisadvantages
It is seen to be out of date as it has been in use since the ()th century,
when common law was the primary source of law and parliamentary supremacy was
not established. It gives too much power to the unelected judiciary which is argued to be
undemocratic.
In the ()th century, the judiciary would often draft acts on behalf of the
;ing and were therefore well !uali#ed in what mischief the act was meant to
remedy, however, such is not the case any more.
Golden 5ule This rule of statutory interpretation allows a shift from the ordinary sense
of a word8s9 if the overall content of the document demands it. This rule is a
modi#cation of the literal rule. It states that if the literal rule produces
an absurdity, then the court should loo; for another meaning of the words to
avoid that absurd result. The rule was evolved by Dar;e B 8who later became
:ord @ensleydale9 in Bec;e v Smith, (6E) and in Grey v Dearson, (67F, 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 modi#ed so as to avoid the absurdity and
inconsistency, but no farther.
It is a very useful rule in the construction of a statute as it allows to
adhere to the ordinary meaning of the words used, and to the grammatical
construction, unless that is at variance with the intention of the legislature
to be collected from the statute itself, or leads to any manifest absurdity or
repugnance, in which case it allows the language to be varied or modi#ed so
as to avoid such inconvenience.
This rule may be used in two ways. It is applied most fre!uently in a narrow
sense where there is some ambiguity or absurdity in the words themselves. or
eample, imagine there may be a sign saying No not use lifts in case of
#re. *nder the literal interpretation of this sign, people must never use
the lifts, in case there is a #re. owever, this would be an absurd result,
as the intention of the person who made the sign is obviously to prevent
people from using the lifts only if there is currently a #re nearby. This was
illustrated in the case of :ee vs +napp (0)F KB where the interpretation of
the word stop was involved. *nder 5oad TraOc "ct, (0)1, causing
a person
an accident shall stop after the accident. In this case, the driver stopped
after causing the accident and then drove o-. It was held that the literal
interpretation of the word stop is absurd and that the re!uirement under the
act was not ful#lled because the driver did not stop for a reasonable time so
that interested parties can ma;e in!uiries from him about the accident.
The second use of the golden rule is in a wider sense, to avoid a result that
is obnoious to principles of public policy, even where words have only one
meaning. Bedford vs Bedford, (0E7, is another interesting case that
highlighted the use of this rule. It concerned a case where a son murdered his
mother and committed suicide. The courts were re!uired to rule on who then
inherited the estate, the mother's family, or the son's descendants. The
mother had not made a will and under the "dministration of Custice "ct (037
her estate would be inherited by her net of ;in, i.e. her son. There was no
ambiguity in the words of the "ct, but the court was not prepared to let the
son who had murdered his mother bene#t 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 court held that if
the son inherits the estate that would amount to pro#ting from a crime and
that would be repugnant to the act.
Thus, the Golden rule implies that if a strict interpretation of a statute
would lead to an absurd result then the meaning of the words should be so
construed so as to lead to the avoidance of such absurdity. " further
corollary to this rule is that in case there are multiple constructions to
e-ect the Golden rule the one which favors the assessee should always be
ta;en. This rule is also ;nown as the 5ule of 5easonable =onstruction.
"dvantages
This rule prevents absurd results in some cases containing situations that
are completely unimagined by the law ma;ers. It focuses on imparting justice instead of blindly enforcing the law.
Nisadvantages
The golden rule provides no clear means to test the eistence or etent of
an absurdity. It seems to depend on the result of each individual case. @hilst
the golden rule has the advantage of avoiding absurdities, it therefore has
the disadvantage that no test eists to determine what is an absurdity. This rule tends to let the judiciary overpower the legislature by applying
its own standards of what is absurd and what it not.
The purposive approach This approach has emerged in more recent times. ere the court is not just
loo;ing to see what the gap was in the old law, it is ma;ing a decision as to
what they felt Darliament meant to achieve. :ord Nenning in the =ourt of
"ppeal stated in agor and St. ellons 5ural Nistrict =ouncil v ?ewport
=orporation, (071, we sit here to #nd out the intention of Darliament and of
ministers and carry it out, and we do this better by #lling in the gaps and
ma;ing sense of the enactment by opening it up to destructive analysis.
This attitude was criticised on appeal by the ouse of :ords. :ord Simmons
called this approach a na;ed usurpation of the legislative function under the
thin disguise of interpretation. e went on to say that if a gap is
disclosed, the remedy lies in an amending "ct..
These comments highlight one issue with the purposive approach. ow
Darliament's intentions can be determined and whether judges should really be
refusing to follow the clear words of Darliament. The purposive approach is
one used by most continental 4uropean countries when interpreting their own
legislation. It is also the approach which is ta;en by the 4uropean =ourt of
Custice in interpreting 4* law.
Since the *nited +ingdom became a member of the 4uropean 4conomic =ommunity in
(0FE, the in36, involving a statute which stated that eplosives
ta;en into a mine must be in a case or canister. ere the defendant used a
cloth bag. The courts had to consider whether a cloth bag was within the
de#nition. *nder ?oscitur a sociis, it was held that the bag could not have
been within the statutory de#nition, because parliament's intention was
refering to a case or container of the same strength as a canister.
In State of "ssam vs 5 uhammad "I5 (0)F, S= made use of this rule to arrive
at the meaning of the word posting used in "rticle 3EE 8(9 of the
=onstitution. It held that since the word posting occurs in association with
the words appointment and promotion, it too; its colour from them and so
it means assignment of an appointee or a promotee to a position and does not
mean transfer of a person from one station to another.
?oscitur a sociis is only a rule of construction and it cannot be used when it
is clear that the word with wider meaning is deliberately used in order to
increase the scope. It can only be used when the intention of the legislature
in using a word with wider sense along with the words with narrower meaning is
not clear. urther, this rule can only be used when the associated words have
analogous meaning. It cannot be used when the words have disjoint meanings.
or eample, in the case of :o;mat ?ewspapers vs Shan;arprasad "I5 (000, it
was held that the words discharge and dismissal do not have the same
analogous meaning and so this rule cannot be applied.
4jusdem Generis The ejusdem generis, or Qof the same genusL rule, is similar though narrower
than the more general rule of noscitur a sociis. It operates where a broad or
open&ended term appears following a series of more restrictive terms in the
tet of a statute. @here the terms listed are similar enough to constitute a
class or genus, the courts will presume, in interpreting the general words
that follow, that they are intended to apply only to things of the same genus
as the particular items listed. "ccording to this rule, when particular words
pertaining to a class or a genus are followed by general words, the general
words are construed as limited to the things of the same ;ind as those
speci#ed by the class or the genus. wider
The meaning of an epression with
meaning is limited to the meaning of the preceeding speci#c epressions.
owever, for this rule to apply, the preceeding words must for a speci#c
class or genus. urther, this rule cannot be applied in the words with a wider
meaning appear before the words with speci#c or narrow meaning. State
In *D
4lectricity Board vs arishan;ar, "I5 (0F0, S= held that the following
conditions must eist for the application of this rule &
(.
The statue contains an enumeration of speci#c words
3.
The subject of the enumeration constitute a class or a category
E.
The class or category is not ehausted by the enumeration
>.
" general term is present at the end of the enumeration
7.
There is no indication of a di-erent legislative intent
Custice idayatullah eplained the principles of this rule through the
following eample & In the epression, boo;s, pamphlets, newspapers, and
other documents, private letters may not be held included if other
documents be interpreted ejusdem generis with what goes before. But in a
provision which reads, newspapers or other documents li;ely to convey secrets
to the enemy, the words other documents would include documents of any ;ind
and would not ta;e their meaning from newspaper.
This was also illustrated in the case of Ishwar Singh Bagga vs State of
5ajasthan (06F, where the words other person, in the epression any police
oOcer authorized in this behalf or any other person authorized in this
behalf by the State government in Section (30 of otor Hehicles "ct, were
held not to be interpreted ejusdem generis because the mention of a single
species of police oOcers does not constitute a genus.
It can be seen that this rule is an eception to the rule of construction that
general words should be given their full and natural meaning. It is a canon of
construction li;e many other rules that are used to understand the intention
of the legislature.
This rule also covers The ran; principle, which goes as follows & @here a
string of items of a certain ran; or level is followed by general residuary
words, it is presumed that the residuary words are not intended to include
items of a higher ran; than those speci#ed. By speci#ying only items of
lower ran; the impression is created that higher ran;s are not intened to be
covered. If they were, then their mention would be epected a fortiori. or
eample, the phrase tradesman, arti#cer, wor;man, labourer, or other person
whatsoever was held not to include persons above the artisan class.
Similarly, the phrase copper, brass, pewter, and tin, and all other metals
in a local "ct of (637 was held not to include precious metals such as gold
and silver.
5eddendo Singula Singulis The reddendo singula singulis principle concerns the use of words
distributively. @here a comple sentence has more than one subject, and more
than one object, it may be the right construction to render each to each, by
reading the provision distributively and applying each object to its
appropriate subject. " similar principle applies to verbs and their subjects,
and to other parts of speech. " typical application of this principle is where
a testator says 'I devise and be!ueath all my real and personal property to
B'. The term devise is appropriate only to real property. The term be!ueath is
appropriate only to personal property. "ccordingly, by the application of the
principle reddendo singula singulis, the testamentary disposition is read as
if it were worded 'I devise all my real property, and be!ueath all my personal
property, to B'.
This rule has been applied in the case of +oteshwar Hittal +amat vs + 5angappa
Baliga, "I5 (0)0, in the construction of the Droviso to "rticle E1> of the
=onstitution which reads, Drovided that no bill or amendment for the purpose
of clause 8b9, shall be introduced or moved in the legislature of a state
without the previous sanction of the Dresident. It was held that the word
introduced applies to bill and moved applies to amendment.
K. 7 4plain & Generalia specialibus non derogant, utres magis valeat !uan
pareat, epressum facit cessare tacitum
Generalia specialibus non derogant
@here there is a special provision speci#cally dealing with a subject, a
general provision, howsoever widely worded must yield to the former. This
principle is epressed by the maim Generalia specialibus non derogant.
The aforesaid rule of construction was applied by the Supreme =ourt in
Hen;ataramana Nevaru Hs State of ysore, "I5 (076. In that case the Supreme
=ourt applied the rule to resolve con, it was held that the general provision under "rticle EF3 of the
=onstitution regarding continuance of eisting laws is subject to "rticle 3FF
of the =onstitution, which is a special provision relating to taes, duties,
cesses or fees lawfully levied at the commencement of the =onstitution. In
this regard, the Supreme =ourt observed as follows%& A@ith this bac;ground let u now consider the following two !uestions raised
before us% 8i9 whether "rticle EF3 of the =onstitution is subject to "rticle
3FF thereofJ and 8ii9 whether "rticle EF3 is subject to "rticle 3F6 thereof.
"rticle EF3 is a general provisionLJ and "rticle 3FF is a special provision.
It is settled law that special provision should be given e-ect to the etent
of its scope, leaving the general provision to control cases where the special
provision does not apply. The earlier discussion ma;es it abundantly clear
that the constitution gives a separate treatment to the subject of #nance and
"rticle 3FF saves the eisting taes etc. levied by states, if the conditions
mentioned therein are complied with. @hile "rticle EF3 saves all pre&
=onstitution valid laws, "rticle 3FF is con#ned only to taes, duties, cesses
or fees lawfully levied immediately before the =onstitution. Therefore,
"rticle EF3 cannot be construed in such a way as to enlarge the scope of the
savings of taes, duties, cesses or fees. To state it di-erently, "rticle EF3
must be read subject to "rticle 3FF. @e have already held that an agreement
can be entered into between the *nion and the States in terms of "rticle 3F6
abrogating or modifying the power preserved to the State under "rticle 3FF.
In Gujarat State =o&operative :and Nevelopment Ban; Hs D.5. an;ad, 8(0F09,
the Supreme =ourt applying the maim generalia specialibus non&derogant held
that a general provision must yield to the special provision. :ord obhouse in
Bar;er Hs 4dgar 8(6069 "= F>0 opined that when the legislature had given its
consent to a separate subject and made provision for it, the presumption is
that a subse!uent general enactment is not intended to interfere with the
special provision unless it manifests that intention very clearly.
*t res magis valeat !uam pereat :iteral meaning & Such a construction is to be made that lets the thing have
e-ect rather than let it fail. ";a 5ule of 4-ectiveness.
"vtar Singh vs State of Dunjab, "I5 (077 S= ((1F ()) & "ppellant was convicted
of theft of electricity under Section E0 of 4lectricity "ct, (001. e
contented that the proceeding were illegal because they were not initiated by
any of the persons as mandated by Section 71 of the act. It was held that
under this principle, the re!uirement of Section 71 should be given e-ect.
=orporation of =alcutta vs :iberty =inema, "I5 (0)7 S= ))( (F1 &
*nder a. >(E of the =alcutta unicipal "ct, (07(, no person shall without a
license granted by the =orporation of =alcutta, ;eep open any cinema house for
public amusement in =alcutta. *nder s. 7>6839, for every license under the
"ct, a fee may be charged at such rate as may from time to time be #ed by
the =orporation. In (0>6, the appellant 8=orporation9 #ed fees on the basis
of annual valuation of the cinema house. The respondent, who was the owner and
licensee of a cinema theater, had been paying a license fee of 5s. >11 per
year on that basis. In (076, the appellant, by a 5esolution, changed the basis
of assessment of the fee.
*nder the new method the fee was to be assessed at rates prescribed per show
according to the sanctioned seating capacity of the cinema houseJ and the
respondent had to pay a fee of 5s. ),111 per year. The respondent, therefore
moved the igh =ourt for the issue of a writ !uashing the resolution and the
application was allowed.
In the appeal to the Supreme =ourt the appellant contended that 8i9 the levy
was a ta and not a fee in return for services and 8ii9 s. 7>6839 does not
su-er from the vice of ecessive delegationJ @hile the respondent contended
that 8i9 the levy was a fee in return for services to be rendered and not a
ta, and as it was not commensurate with the costs incurred by the =orporation
in providing the services, the levy was invalidJ 8ii9 if s. 7>6 authorized the
levy of a ta, as distinct from a fee in return for service rendered, it was
invalid, as it amounted to an illegal delegation of legislative functions to
the appellant to # the amount of a ta without any guidance for the purpose
and 8iii9 the levy was invalid as violating "rt. (08(9 8f9 and 8g9 of the
=onstitute.
4:N 8per Sar;ar, 5aghubar Nayal and udhol;ar CC9 % 8i9 The was not a fee but
a ta. The word fee in s. 7>6 must be read as referring to a ta as any other
reading would ma;e the section invalid, and in interpreting a statute, it
ought to be made valid if possible.
epressum facit cessare tacitum
That which is epressed ma;es that which is implied to cease 8that is,
supersedes it, or controls its e-ect9. Thus, an implied covenant in a deed is
in all cases controlled by an epress covenant. @here a law sets down plainly
its whole meaning the court is prevented from ma;ing it mean what the court
pleases.
K. @hat do you understand by Bene#cial =onstructionM 4plain the statement,
Bene#cial construction is a tendency rather than a rule.
" general rule of interpretation is that if a word used in a statute ecludes
certain cases in its common meaning, it should not be constrained
unnecessarily to include those cases. "n eception to this rule is that when
the objectives of the statute are not met by ecluding the cases, then the
word may be interpreted etensively so as to include those cases. owever,
when a word is ambiguous i.e. if it has multiple meanings, which meaning
should be understood by that wordM This is the predicament that is resolved by
the principle of Bene#cial =onstruction. @hen a statute is meant for the
bene#t of a particular class, and if a word in the statute is capable of two
meanings, one which would preserve the bene#ts and one which would not, then
the meaning that preserves the bene#t must be adopted. It is important to
note that omissions will not be supplied by the court. $nly when multiple
meanings are possible, can the court pic; the bene#cial one. Thus, where the
court has to choose between a wider mean that carries out the objective of the
legislature better and a narrow meaning, then it usually chooses the former.
Similarly, when the language used by the legislature fails to achieve the
objective of a statute, an etended meaning could be given to it to achieve
that objective, if the language is fairly susceptible to the etended meaning.
This is !uite evident in the case of B Shah vs Dresiding $Ocer, "I5 (0F6,
where Section 7 of aternity Bene#ts "ct, (0)( was is !uestion, where an
epectant mother could ta;e (3 wee;s of maternity leave on full salary. In
this case, a women who used to wor; ) days a wee; was paid for only )(3F3
days instead of F(36> days. S= held that the words (3 wee;s were capable of
two meanings and one meaning was bene#cial to the woman. Since it is a
bene#cial legislation, the meaning that gives more bene#t to the woman must
be used.
It is said by "@4::, that Bene#cial =onstruction is a tendency and not a
rule. The reason is that this principle is based on human tendency to be fair,
accommodating, and just. Instead of restricting the people from getting the
bene#t of the statute, =ourt tends to include as many classes as it can while
remaining faithful to the wordings of the statute. or eample, in the case of
"lembic =hemical @or;s vs @or;men "I5 (0)(, an industrial tribunal awarded
more number of paid leaves to the wor;ers than what Section F08(9 of actories
"ct recommended. This was challenged by the appellant. S= held that the
enactment being a welfare legislation for the wor;ers, it had to be
bene#cially constructed in the favor of wor;er and thus, if the words are
capable of two meanings, the one that gives bene#t to the wor;ers must be
used.
Similarly, in * *nichoyi vs State of +erala, (0)E, the !uestion was whether
setting of a minimum wage through inimum @ages "ct, (0>6 is violative of
"rticle (0 8(9 8g9 of the constitution because the act did not de#ne what is
minimum wage and did not ta;e into account the capacity of the employer to
pay. It was held that the act is a bene#cial legislation and it must be
construed in favor of the wor;er. In an under developed country where
unemployment is rampant, it is possible that wor;ers may become ready to wor;
for etremely low wages but that should not happen.
K. @hat do you understand by Strict =onstructionM If there is an ambiguity in
a word in a penal statute, what interpretation should be given and whyM
4plain why a taing statute should be strictly constructedM
Strict =onstruction Strict construction refers to a particular legal philosophy of judicial
interpretation that limits or restricts judicial interpretation. Strict
construction re!uires the court to apply the tet as it is written and no
further, once the meaning of the tet has been ascertained. That is, court
should avoid drawing inference from a statute or constitution. It is
important to note that court may ma;e a construction only if the language is
ambiguous or unclear. If the language is plain and clear, a judge must apply
the plain meaning of the language and cannot consider other evidence that
would change the meaning. If, however, the court #nds that the words produce
absurdity, ambiguity, or a literalness never intended, the plain meaning does
not apply and a construction may be made. Strict construction occurs when
ambiguous language is given its eact and technical meaning, and no other
e!uitable considerations or reasonable implications are made. Strict
construction is the opposite of liberal construction, which permits a term to
be reasonably and fairly evaluated so as to implement the object and purpose
of the document.
"pplicability in Denal Statutes " Denal Statute must be constructed strictly. This means that a criminal
statute may not be enlarged by implication or intent beyond the fair meaning
of the language used or the meaning that is reasonably justi#ed by its terms.
It is fundamentally important in a free and just society that :aw must be
readily ascertainable and reasonably clear otherwise it is oppressive and
deprives the citizen of one of his basic rights. "n imprecise law can cause
unjusti#ed convictions because it would not be possible for the accused to
defend himself against uncertainties. Therefore, an accused can be punished
only if his act falls clearly into the four corners of the law without
resorting to any special meaning or interpretation of the law. or eample, in
Se;saria =otton ills vs State of Bombay, (07>, S= held that in a penal
statute, it is the duty of the =ourts to interpret the words of ambiguous
meaning in a broad and liberal sense so that they do not become traps for
honest unlearned and unwary men. If there is honest and substantial compliance
with an array of puzzling directions that should be enough, even if on some
hyper critical view of the law other ingenious meanings can be devised.
If a penal provision is capable of two reasonably possible constructions, then
the one that eempts the accused from penalty must be used rather than the one
that does not. @hether a particular construction achieves the intention of the
statute or not is not up to the court to thin; about in case of penal
statutes. It is not apt for the court to etend the scope of a mischief and to
enlarge the penalty. It is not competent for the court to etend the meaning
of the words to achieve the intention of the legislature. If a penal provision
allows accused to go scot&free because of ambiguity of the law, then it is the
duty of the legislature and not of the courts to # the law. *nless the words
of a statute clearly ma;e an act criminal, it cannot be construed as criminal.
=hinubhai vs State of Bombay, "I5 (0)1, is an important case in this respect.
In this case, several wor;ers in a factory died by inhaling poisonous gas when
they entered into a pit in the factory premises to stop the lea;age of the gas
from a machine. The !uestion was whether the employer violated section E of
the actories "ct, which says that no person in any factory shall be permitted
to enter any con#ned space in which dangerous fumes are li;ely to be present.
The Supreme =ourt, while construing the provision strictly, held that the
section does not impose an absolute duty on the employer to prevent wor;ers
from going into such area. It further observed that the fact that some
wor;ers were present in the con#ned space does not prove that the employer
permitted them to go there. wor;ers
The prosecution must #rst prove that the
were permitted to enter the space to convict the accused.
"pplicability in Taing Statutes Ta is the money collected from the people for the purposes of public wor;s.
It is a source of revenue for the government. It is the right of the govt to
collect ta according to the provisions of the law. ?o ta can be levied or
collected ecept by the authority of law. In general, legislature enjoys wide
discretion in the matter of taing statutes as long as it satis#es the
fundamental principle of classi#cation as enshrined in "rticle (>. " person
cannot be taed unless the language of the statute unambiguously imposes the
obligation without straining itself. In that sense, there is no reason why a
taing statute must be interpreted any di-erently from any other ;ind of
statute. Indeed, S=, in the case of =IT vs Shahazada ?and and Sons, (0)),
observed that the underlying principle is that the meaning and intention of a
statute must be collected from the plain and unambiguous epression used
therein rather than any notions which be entertained by the =ourts as to what
is just or epedient. In construing a statutory provision the #rst and
foremost rule of construction is the literary construction. "ll that the court
has to see at the very outset is what does the provision say. If the provision
is unambiguous and if from the provision the legislative intent is clear, the
court need not call into aid the other rules of construction of statutes. The
other rules of construction are called into aid only when the legislative
intent is not clear.
:ord 5ussel in "ttorney General vs =alton Ban, (060, illustrated categorically
as, I see no reason why special canons of construction should be applied to
any act of parliament and I ;now of no authority for saying that a taing
statute is to be construed di-erently from any other act.
owever, as with any statute, a #scal or taing statute is also susceptible
to human errors and impreciseness of the language. This may cause ambiguity or
vagueness in its provisions. It is in such cases, the tas; of constructing a
statute becomes open to various methods of construction. Since a person is
compulsorily parted from his money due to ta, imposition of a ta is
considered a type of imposition of a penalty, which can be imposed only if the
language of the provision une!uivocally says so. This means that a taing
statute must be strictly constructed. The principle of strict interpretation
of taing statutes was best enunciated by 5owlatt C. in his classic statement
in =ape Brandy Syndicate v I.5.=. & In a taing statute one has to loo;
merely at what is clearly said. There is no room for any intention. There is
no e!uity about a ta. There is no presumption as to a ta. ?othing is to be
read in, nothing is to be implied. $ne can loo; fairly at the language used.
If by any reasonable meaning of the words, it is possible to avoid the ta,
then that meaning must be chosen. There is no scope for any inference or
induction in constructing a taing statute. There is no room for suppositions
as to Aspirit of the law or by way of Ainference. @hen the provision is
reasonably open to only one meaning then it is not open to restrictive
construction on the ground that the levy of ta, is oppressive ,
disproportionate, unreasonable or would cause hardship. There is no room for
such speculation. The language must be eplicit. Similarly, penalty provision
in a taing statute has to be speci#cally provided and cannot be inferred.
In ". H. ernandes vs State of +erala, "I5 (07F, the Supreme =ourt stated the
principle that if the revenue satis#es the court that the case falls strictly
within the provisions of the law, the subject can be taed. If, on the other
hand, the case does not fall within the four corners of the provisions of the
taing statute, no ta can be imposed by inference or by analogy or by trying
to probe into the intentions of the :egislature and by considering what was
the substance of the matter.
This does not mean that e!uity and taation are complete strangers. or
eample, in the case of =IT vs C +otla Uadgiri, (067, S= held that since the
income from business of wife or minor child is includable as income of the
assessee, the pro#t or loss from such business should also be treated as the
pro#t or loss from a businesss carried on by him for the purpose of carrying
forward and set&o- of the loss uVs. This interpretation was based on e!uity.
owever, it does not permit any one to ta;e the bene#t of an illegality. This
is illustrated in the case of =IT vs +urji Cinabhai +otecha,"I5 (0FF, where
Section .3>839 of IT "ct was constructed as not to permit assessee to carry
forward the loss of an illegal speculative business for setting it o- against
pro#ts in subse!uent years. This proves that even a taing statute should be
so construed as to be consistent with morality avoiding a a result that gives
recognition to continued illegal activities or bene#ts attached to it.
The rule of strict construction applies primarily to charging provisions in a
taing statute and has no application to a provision not creating a charge but
laying down machinery for its calculation or procedure for its collection.
Thus, strict construction would not come in the way of re!uiring a person
claiming an eemption. The provisions of eemptions are interpreted
bene#cially.
K. Niscuss the principles of =onstitutional Interpretation. 4plain, In the
interpretation of constitution, the judicial approach should be dynamic than
static, pragmatic than pedantic, and elastic than rigid. Nescribe &
armonious =onstruction, Noctrine of Dith and Substance, =olourable
:egislation, Droviso, Noctrine of 4clipse, Drinciple of separation. @hat is
the proper function of a provisoM =an it a-ect the enacting portion of a
section as wellM
Introduction =onstitution is the supreme and fundamental law of our country. Since it is
written in the form of a statute, the general principles of statutory
interpretation are applicable to interpretation of the constitution as well.
"s is the case with any other statute, the court tries to #nd out the
intention of the framers of the constitution from the words used by them. or
eample, in the case of State of Bihar vs +ameshwar Singh "I5 (073, S= used
one of the standard principles of interpretation that where more than one
reasonable interpretation of a constitutional provision are possible, that
which would ensure a smooth and harmonious wor;ing of the constitution shall
be accepted rather than the one that would lead to absurdity or give rise to
practical inconvenience, or ma;e well eisting provisions of eisting law
nugatory, while interpreting the constitution.owever, even if an argument
based on the spirit of the constitution is very attractive, it must be
validated with the spirit of the constitution as re. In
this case, two provisions of 5epresentation of Deople "ct, (07(, which were in
apparent con, the courts
have to ignore the name given to the act by the legislature and must also
disregard the incidental and super#cial encroachments of the act and has to
see where the impact of the legislation falls. It must then decide the
constitutionality of the act.
Drinciple of Incidental or "ncillary Dowers This principle is an addition to the doctrine of Dith and Substance. @hat it
means is that the power to legislate on a subject also includes power to
legislate on ancillary matters that are reasonably connected to that subject.
It is not always suOcient to determine the constitutionality of an act by
just loo;ing at the pith and substance of the act. In such cases, it has to be
seen whether the matter referred in the act is essential to give a-ect to the
main subject of the act. or eample, power to impose ta would include the
power to search and seizure to prevent the evasion of that ta. Similarly, the
power to legislate on :and reforms includes the power to legislate on mortgage
of the land. owever, power relating to ban;ing cannot be etended to include
power relating to non&ban;ing entities. owever, if a subject is eplicitly
mentioned in a State or *nion list, it cannot be said to be an ancillary
matter. or eample, power to ta is mentioned in speci#c entries in the
lists and so the power to ta cannot be claimed as ancillary to the power
relating to any other entry of the lists.
"s held in the case of State of 5ajasthan vs G =hawla "I5 (070, the power to
legislate on a topic includes the power to legislate on an ancillary matter
which can be said to be reasonably included in the topic.
The underlying idea behind this principle is that the grant of power includes
everything necessary to eercise that power. owever, this does not mean that
the scope of the power can be etended to any unreasonable etent. Supreme
=ourt has consistently cautioned against such etended construction. or
eample, in 5 N =harbaugwala vs State of ysore, "I5 (0)3, S= held that
betting and gambling is a state subject as mentioned in 4ntry E> of State list
but it does not include power to impose taes on betting and gambling because
it eists as a separate item as 4ntry )3 in the same list.
Noctrine of =olourable :egislation This doctrine is based on the principle that what cannot be done directly
cannot be done indirectly. In other words, if the constitution does not permit
certain provision of a legislation, any provision that has the same e-ect but
in a round about manner is also unconstitutional. This doctrine is found on
the wider doctrine of fraud on the constitution. " thing is =olourable when
it seems to be one thing in the appearance but another thing underneath. + =
Gajapati ?arayan Neo vs State of $rissa, "I5 (07E is a famous case that
illustrates the applicability of this doctrine. In this case, S= observed that
the constitution has clearly distributed the legislative powers to various
bodies, which have to act within their respective spheres. These limitations
are mar;ed by speci#c legislatives entries or in some cases these limitations
are imposed in the form of fundamental rights of the constitution. Kuestion
may arise whether while enacting any provision such limits have been
transgressed or not. Such transgression may be patent, manifest or direct. But
it may also be covert, disguised, or indirect. It is to this later class of
transgression that the doctrine of colourable legislation applies. In such
case, although the legislation purports to act within the limits of its
powers, yet in substance and in reality, it transgresses those powers. The
transgression is veiled by mere pretense or disguise. But the legislature
cannot be allowed to violate the constitutional prohibition by an indirect
method. In this case, the validity of $rissa "gricultural Income Ta
8"mendment9 "ct (071 was in !uestion. The argument was that it was not a bona
#de taation law but a colourable legislation whose main motive was to
arti#cially lower the income of the intermediaries so that the state has to
pay less compensation to them under $rissa 4states "bolition "ct, (073. S=
held that it was not colourable legislation because the state was well within
its power to set the taes, no matter how unjust it was. The state is also
empowered to adopt any method of compensation. The motive of the legislature
in enacting a law is totally irrelevant.
" contrasting case is of + T oopil ?air vs State of +erala, "I5 (0)(. In this
case, the state imposed a ta under Travencore =ochin :and Ta "ct, (077,
which was so high that it was many times the annual income that the person was
earning from the land. The S= held the act as violative of "rticles (> and (0
