EXTERNAL AIDS TO INTERPRETATION

EXTERNAL AIDS TO INTERPRETATION

Other than the internal aid to interpretation which are part of a statute itself there are

other aids which are not part of the statute. These are known as external aid to interpretation.

The court can consider recourse outside the Act such as historical settings, objects and

reasons, bills, debates, text books, dictionaries etc. Recourse to external aid is justified only to

well-recognized limits.

External aids may be employed in the construction of statutes if the words and

languages employed are not free from ambiguity and cannot be cleared even by resort to

internal aids. External aids in the construction of statutes are permitted to explain the state of

law at the time it was passed but not to interpret the Act. Further recourse to external aids in

interpreting statutory provisions would be justified only within well recognized limits and primarily

the effect of the statutory provision must be judged, on a fair and reasonable construction of the

words used by the statute itself.

Since the courts are entitled to consider such external or historical facts as may be

necessary to understand the subject matter to which the statue relates, or to have regard to the

mischief which the statute is intended to remedy, the exclusionary rule was relaxed to admit the

reports of the commissions preceding a statutory measure as evidence of surrounding

circumstances with reference to which the words in the statute are used.

Reference to parliamentary material should be permitted as an aid to the construction of

legislation which is ambiguous or obscure or the literal meaning of which leads to absurdity.

Even in such cases references in court to parliamentary material should only be permitted

where such material clearly discloses the mischief aimed or at the legislative intention lying

beyond the ambiguous or obscure words. In the case of statements made in Parliament, as at

present advised, I cannot foresee that any statement other than the statement of the minister or

other promoter of the Bill is likely to meet these criteria. In reaching this conclusion Lord Browne

Wilkinson reasoned that “the Court cannot attach a meaning to words which they cannot bear,

but if the words are capable of bearing more than one meaning why should not Parliament’s

true intention be enforced.” It was pointed out that white papers and official reports could be

looked at for finding the mischief and as a ministerial statement made in Parliament was an

equally authoritative source of such information there was no reason why the courts be cut off

from this source.

In contrast to the traditional English practice, under the American practice, the old rule of

exclusion of parliamentary history has been very much relaxed. Although it is generally

accepted that “debates in Congress are not appropriate or even reliable guides to the meaning

of the language of an enactment”, it has been held that the said rules “is not violated by

resorting to debates as a means of ascertaining the environment at the time of enactment of

particular law, that is, the history of the period when it was adopted.” Further, it appears to have

been well accepted that “the reports of a committee, including the bill, as introduced, changes

made in the frame of the bill in the course of its passage and the statement made by the

committee chairman in charge of it, stand upon a different footing, and may be resorted to under

proper qualifications.”

The Supreme Court, speaking generally, to begin with, enunciated the rule of exclusion

of Parliamentary history in the way it was traditionally enunciated by English courts, but on

many an occasion, the court used this aid in resolving questions of construction. The court has

now veered to the view that legislative history within circumspect limits may be consulted by

courts in resolving ambiguities. But the court still sometimes, like the English courts, makes a

distinction between use of material for finding the mischief dealt with by the Act and its use for

finding the meaning of the Act. As submitted earlier this distinction is unrealistic and has now

been abandoned by the House of Lords.

It was held that speeches made by the members of the Constituent Assembly in the

course of the debates on the draft Constitution cannot be admitted as extrinsic aid to the

construction of the Constitution, and similarly the debates in Parliament on a Bill are not

admissible for construction of the Act which is ultimately enacted.

In Indira Sawhney Vs. Union of India, AIR 1993 SC 477, while interpreting Article 16 (4)

of the Constitution, the Supreme Court referred to Dr. Ambedkar’s speech in the Constituent

Assembly and observed: “That the debates in the Constituent Assembly can be relied upon as

an aid to interpretation of a constitution provision is borne out by a series of decisions of this

Court. Since the expression backward class of citizens is not defined in the Constitution,

reference to such debates is permissible to ascertain at any rate the context, background and

objective behind them. Particularly where the court wants to ascertain the ‘original intent’ such

reference may be unavoidable.

The Statements made by the Chairman of the Standing Committee which considered the

Bill are of great significance in this regard. Legislators themselves attach great importance to

the work of these committees, while considering the statements of legislators, it should be

ascertained whether the participating legislators concurred as to the meaning of the language.

(i) Objects and reasons :

The statements of object and reasons cannot be used as an aid to construction. Objects

and reasons of a statue is to be looked into as an extrinsic aid to find out the legislative intent,

only when the language is obscure or ambiguous.

As regards the Statements of Objects and Reasons appended to a Bill, it must be

remembered that it seeks only to explain what reasons induced the mover to introduce the Bill in

the House and what objects he sought to achieve. But those objects and reasons may or may

not correspond to the objective which the majority of members had in view when they passed it

into law. The Bill may have undergone radical changes during its passage through the House or

Houses, and there is no guarantee that the reasons which led to its introduction and the objects

thereby sought to be achieved have remained the same throughout till the Bill emerges from the

House as an Act of the Legislature, for they do not form part of the Bill and are not voted upon

by members.

In CIT, M.P. Vs. Sodra Devi, AIR 1957 SC 832, while dealing with Section 16(3) of the

Indian Income Tax Act, 1922, as introduced by the amending Act IV of 1937, and in construing

the words ‘any individual’ and ‘such individual’ occurring therein restricted their meaning to

‘males’ on a consideration that the Statements of Objects and Reasons appended to the Bill of

the amending Act made it clear that the evil which was sought to be remedied was the one

resulting from the widespread practice of husbands entering onto nominal partnerships with

their wives and fathers admitting their minor children to the benefits of the partnership of which

they were members and that the only intention of the Legislature was to include the income

derived by the wife or a minor child, in the computation of the total income of the male

assessee, the husband or the father, as the case may be.

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

also been referred to as evidence of historical facts or of surrounding circumstances or of

mischief or evil intended to be remedied and at times for interpreting the Act. However, in CIT,

A.P. Vs. Jayalakshmi Rice & Oil Mills Contractor Co., AIR 1971 SC 1015, that the report of the

special committee which had been appointed by the Government of India to examine the

provisions of the Bill which later became the Partnership Act cannot be admitted for interpreting

the provisions of the Act. But in R. S. Nayak Vs. A. R. Antulay, AIR 1984 SC 684, the Supreme

Court differing from the view taken by Jayalakshmi Rice and Oil Mills case held that report of the

Committee which preceded the enactment of a legislative, reports of joint parliamentary

committee and report of a committee set up for collecting information leading to the legislation

are permissible external aids to construction of the Act.

White paper issued by the Government detailing the facts leading to enactment of a

statute is also admissible for understanding the background when the court is called upon to

interpret and decide the validity of the statute. Extensive reference was made by the Supreme

Court to the white paper for understanding the background of the Ramjanma Bhumi Babri

Masjid dispute in deciding the reference made under Article 143 and the constitutionality of the

Acquisition of certain Areas of Ayodhya Act, 1993.

(ii) Historical facts and surrounding circumstances :

It has already been noticed that the court is entitled to take into account “such external

or historical facts as may be necessary to understand the subject matter of the statute” or to

have regard to “the surrounding circumstances” which existed at the time of passing of the

statute.

The policy followed in the working of an earlier Act can be presumed to be known to

Parliament while legislating subsequently on a related subject and will thus be admissible in

construing the later Act.

Like any other external aid, the inferences from historical and surrounding facts must

give away to the clear language employed in the enactment itself. The rule of admissibility of

this external aid in case of ambiguous enactments is of general application and a number of

cases in this respect have already been discussed while dealing with the admissibility of

Parliamentary History.

The function of the Court being to find out the intention of the law-makers, the Court has

to discover the particular meaning of a given word in an enactment which the law-makers

intended it to be given. In case of older statutes, knowledge of the historical facts relating to

them becomes indispensable for understanding the meaning of ambiguous words and the

expressions used in them. To quote the observations of Mukherjee, J., in this regard; It may be

useful to remember the well known historical facts that led to the passing of the enactment.” He

further observed: it is a settled canon of construction that the interpreter should place himself,

as far as possible, in the position of those whose words he is interpreting and the meaning of

certain words and terms used in ancient document or statute can be properly explained only by

reference to the circumstances existing at the time when the statute was enacted or document

was written.

(iii) History of Legislation :

The Supreme Court has held that parliamentary history of an enactment is not

admissible to construe its meaning. However, the Courts can look into the history of an Act and

the background and the circumstances in which the Act was passed, for the limited purpose of

appreciating the mischief which the legislature had in mind and the remedy which it wanted to

provide for preventing that mischief and not for the purpose of aiding themselves in construing

the provisions of the act.

We have nothing to do with the history of the words unless the words are doubtful and

require historical investigation to explain them and to clear away the doubts which the

phraseology of the statute may have credited. It is useless to enter into any enquiry as to the

history of an enactment, or as to any supposed defect in a former legislation which it was

intended to meet, where the words of the enactment are clear, although it may possibly be

material to do so where the words are capable of two meanings. Legislative history of an Act

may, where the meaning of the words used is doubtful, be resorted to as an aid to construction

but no aid should possibly be derived from the legislative history of another act passed some

years after the Act in question. Where the statute has undergone by way of amendment or

otherwise, it is not only permissible but of great assistance in the matter of interpretation to

examine the legislative intent of the provisions.

(iv) Contemporaneous expositio :

Contemporaneous event form an important extraneous aid to the construction of a

statute. A consideration of the history of the period of enactment including the history of the law

itself, the nature of the preceding law, and the mischief that was sought to be removed by the

law is called for. In the words of Blackstone: “The most universal and effectual way of

discovering the true meaning of a law, when the words are dubious is by considering the reason

and spirit of it, or the cause which moved the legislatures to enact it.” In the case of ambiguity of

different articles of the construction, the reports of the Drafting Committees of the Constituent

Assembly may be consulted but not with a view to controlling the meaning of the articles in

question. In order to find out the precise evil that the legislators tried to remedy, it is useful to

scan the opinions and statements of the legislators expressed at the time of discussion of the

law and ascertain the relevant conditions existing at the time of enactment.

Historical works and public officials documents may be referred to in order to ascertain

ancient facts of a public nature. In construing the old statutes it has been usual to pay regard to

the construction put upon them by the judges who lived at or soon after the time when they were

made because they were best able to judge the intention of the makers at that time.

Subject to use made of contemporary official statements and statutory instruments, the

principle of contemporanea expositio is not applicable to a modern statute. Even if the persons

who dealt with the Act understood it in a particular manner, that does not prevent the court in

giving to the Act its true construction. The doctrine is confined to the construction of ambiguous

language used in very old statutes where indeed the language itself have had a rather different

meaning in those days.

But a uniform and consistent departmental practice arising out of construction placed

upon an ambiguous statute by the highest executive officers at or near the time of its enactment

and continuing for a long period of time is an admissible aid to the proper construction of the

statute by the Court and would not be disregarded except for cogent reasons. The controlling

effect of this aid which is known as ‘executive construction’ would depend upon various factors

such as the length of time for which it is followed, the nature of rights and property affected by it,

the injustice resulting from its departure and the approval that it has received in judicial decision

or in legislation. Contemporary official statements throwing light on the construction of a statute

and statutory instruments made under it have been used as contemporanea expositio to

interpret not only ancient but even recent statutes both in England and in India.

The principles of contemporanea expositio and executive construction though relevant

for solving a case of an ambiguity cannot be used for bringing about an implied repeal or quasi

repeal.

Although acquiescence even for a long period does not make a void rule valid, but when

rules are made by the Government under earlier enactments on the basis of a particular

construction of the enabling section which is followed by omission of all concerned to dispute

that construction for a long time by challenging the validity of the rules and the enabling section

is re-enacted without any material change, an inference arises that the construction on which

the rules proceeded correctly represents the intention of the Parliament and has its approval.

(v) Previous decisions :

It is a fundamental principle of Anglo-American legal system to attach great weight to the

doctrine of judicial precedent. It is, however, only the ratio-decidendi that has the force of law.

When the language of a statute is ambiguous and it is found that particular interpretation

has been put upon it by a number of authorities extending a great length of time it would be

unwise and wrong to disturb that interpretation. It will be dangerous attempt to construe one Act

by a reference to decision on other Acts which are quite different in character, even although the

actual phrase in the several Acts may be the same. Where there have been decided cases

before an Act is amended if the amendment does not expressly show that the law as interpreted

in decisions is altered, the rule laid down by the decision is to be adhered to.

(vi) Public policy :

Legislation is intended to accord with and given shape to the established principles of

public policy, and not to transgress them. If the statute, therefore, tends itself to double

interpretation; the interpretation that achieves this object should be preferred. The effects and

consequences of the proposed  construction of the enactment have also to be examined, and if

the examination reveals that one of the proposed construction goes against the spirit of public

policy, and the other does not, the reasonable and beneficial interpretation is to be accepted.

Judicial observation on this point do not show that the courts are in favour of enlarging or

restraining the literal sense of the legislation, but rather their anxiety is that the interpretation

consistent with the public policy should be selected.

(vii) Use of foreign decisions :

On a question of construction of Indian statutes sobered use of foreign decisions of

countries following the same system of jurisprudence as ours and rendered on statute in pari

materia has been permitted by practice in Indian courts. The assistance of such decision is

subject to the qualification that prime importance is always to be given to the language of the

relevant Indian statute, the circumstances and the setting in which it is enacted and the Indian

conditions where it is to be applied and that it is not to be forgotten that there is always an

element of risk in taking ready and hasty assistance from such decisions.

If the terms are plain and unambiguous of an Indian Act, the Court cannot have resort to

the position in law as it has been obtained in England or in other countries where the statute

was enacted by the legislature. Such recourse would be permissible only if there was any latent

or patent ambiguity and the courts were required to find out what was the true intention of the

legislature. Where, however, the terms of the statute do not admit of any such ambiguity, it is

the clear duty of the Court to construe the plain term of the statute and give to them their legal

effect.

It is also dangerous to construe an Indian Act by reference to the English Act, however,

closely the language of the two Acts may approximate and it is not permissible for an Indian

court to enlarge the language of an Indian statue by any implication of English doctrines or to

embark upon an examination of the English law based upon English statutes or English practice

when the matter is expressly governed by the Indian statute. It is not legitimate to apply English

decision on English Acts to the construction of an Indian statute, especially so when the English

Acts are differently worded because then it is much more likely to cause confusion than to

render assistance.

Where the basis of the Indian legislature on a particular subject is the English Law, it will

not only be permissible but also a great advantage to see what the English Law is not that

particular point when the provisions of the Indian statute are not very clear. Similarly, when the

language of the Indian and English statutes is identical, or the provisions of an Indian statute are

in pari materia with the provisions of an English statute, the Courts would be entitled to seek

guidance, find help from the decisions of English courts in such matters.

(viii) Dictionaries :

When a word is not defined in the Act itself, it is permissible to refer to dictionaries to find

out the general sense in which that word is understood in common parlance. However, in

selecting one out of the various meanings of a word, regard must always be had to the context

as it is a fundamental rule that “the meaning of words and expressions used in an Act must take

their colour from the context in which they appear”. Therefore, “when the context makes the

meaning of a word quite clear, it becomes unnecessary to search for and select a particular

meaning out of the diverse meaning a word is capable of, according to lexicographers. Further,

words and expressions at times have a technical or a legal meaning and in that case they are

understood in that sense. Again judicial decisions expounding the meaning of words in

construing statutes in pari materia will have more weight than the meaning furnished by

dictionaries.

(ix) Statutes in pari materia :

It has already been seen that a statute must be read as a whole as words are to be

understood in their context. Extension of this rule of context permits reference to other statues in

pari materia, i.e., statutes dealing with the same subject matter or forming part of the same

system. The text of the statute taken as a whole is, no doubt, the most important material for

ascertaining the intention of the legislature, but the external aids by having recourse to statutes

in pari materia are also admissible. These external aids wide the scope of ‘context’ as including

not only other provisions of the same statue, but its preamble, the existing state of the law, other

statutes in pari materia, and the mischief which the statute was intended to remedy.

The meaning of the phrase ‘pari materia’ has been explained in an American case in the

following words: “Statutes are in pari materia which relate to the same person or thing, or to the

same class of persons or things. The word ‘par’ must not be confounded with the word ‘similis’.

It is used in opposed to it – intimating not likeness merely but identity. It is a phrase applicable

to public statutes or general laws made at different items and in reference to same subject.

When the two pieces of legislation are of different scopes, it cannot be said that they are in pari

materia.

Acts dealing with various socio-economic plans have to be read in a complementary

manner so that they do not create contradictions while operating in the same field. For example,

a tenancy Act which is enacted to ameliorate the conditions of tenants and which confers

exclusive jurisdiction on revenue courts to decide whether tenancy right was acquired by a

person has to be read complimentary to a ceiling Act which is passed with the object of so

distributing the agricultural resources of the community as to subserve the common good and

which confers jurisdiction on an authority functioning under that Act to decide whether a tenancy

right was created bona fide or to defeat the provisions of the Act.

(x) Assistance of earlier statutes :

Use of same words in similar connection in a later statute gives rise to a presumption

that they are intended to convey the same meaning as in the earlier statute. On the same logic

when words in an earlier statue have received an authoritative exposition by a superior court,

use of same words in similar context in a later Act will give rise to a presumption that Parliament

intends that the same interpretation should also be followed for construction of those words in

the later statute.

However, it is not a sound principle of construction to interpret expressions used in one

Act with reference to their use in another Act, and decisions rendered with reference to

construction of one Act cannot be applied with reference to the provisions of another Act, when

the two Acts are not in pari materia. There is also presumption that the Legislature while

repealing one statute and substituting another in different terms intends to make the minimum

changes in the previous law that it is possible to reconcile with the actual wording of the new

statute particularly where the new statute is passed with a new object, e.g., to give effect to a

new international convention. Further, when there is no ambiguity in the statute, it may not be

permissible to refer to, for purpose of its construction any previous legislation or decisions

rendered thereunder. Decisions relating to constitutional validity of one statute, on the same

principles are not taken as a safe guide for pronouncing on the validity of another statute which

may not be in pari materia.

Just as use of same language in a later statute as was used in an earlier one in pari

materia is suggestive of the intention of the Legislature that the language so used in the later

statute is used in the same sense as in the earlier one, change of language in a later statute in

pari materia is suggestive that change of interpretation is intended.

The alteration of the law by the Legislature, however, does not give rise to any inference

that the previous decisions were wrong or even that those who proposed the alteration were of

that opinion. But when judicial decisions have taken two different view of a statutory provision

which is re-enacted with certain modifications, the change in language may be suggestive of

acceptance of one view by the Legislature and a meaning consistent with that view should be

placed on the provisions re-enacted. When the Legislature makes suitable amendments to give

effect to a prior judicial decision, it should be inferred that the decision correctly interpreted the

law before the amendment.

Change in language is not, however, always indicative of a change in construction. The

alteration in language in or by a later statue may be the result of many other factors. For

instance, words may be omitted in a later statute when they were mere surplus age and the

natural and ordinary meaning of the existing words indicates no intention of alteration of

meaning. Similarly, addition of words may be to make clear a meaning which was already

implied. Further, the change in wording may be because the draftsman wanted to improve the

style.

(xi) Assistance of later statutes :

It is within the authority of the Legislature to amend an earlier Act or to declare its

meaning by enacting a new Act and the Legislature is even competent to so declare a meaning

that the “declaration offended the plain language of the earlier Act”. In such cases, the later

statute operates directly by its own force and not merely as an aid to construction of the earlier

statute. But a legislation proceeding upon an erroneous assumption of the existing law without

directly amending or declaring the law is ineffective to change the law.

A later statute, is therefore, normally not used as an aid to construction of an earlier one.

But when an earlier Act is truly ambiguous a later Act may in certain circumstances serve as

parliamentary exposition of the former.

Section 293 (4) of the Cr.P.C. before its amendment used the expression ‘Director’ only.

After amendment, ‘Deputy Director’ and ‘Assistant Director’ were expressly included with the

‘Director’. The Supreme Court after referring to this change held that ‘Joint Director’ who was

higher in rank to Deputy Director and Assistant Director must be deemed to be included in

‘Director’ otherwise he would also have been expressly included by the amendment and that

this construction was also applicable to the word ‘Director’ before the section was amended.

(xii) Incorporation of an earlier Act into later; Reference of earlier Act into later :

Incorporation of an earlier act into a later act is a legislative device adopted for the sake

of convenience in order to avoid verbatim reproduction of the provisions of the earlier Act into

the later. When an earlier Act or certain of its provisions are incorporated by reference into a

later Act, the provisions so incorporated become part and parcel of the later Act as if they had

been bodily transposed into it.

Ordinarily, if an Act is incorporated in a later Act, the intention is to incorporate the earlier

Act, with all the amendments made in it up to the date of incorporate. The rule that the repeal or

amendment of the Act which is incorporated by reference in a later Act is not applicable for

purpose of the later act is subject to qualifications and exceptions. A distinction is in this context

drawn between incorporation and mere reference of an earlier Act into a later Act. Further, a

distinction is also drawn when what is referred to is not an earlier Act or any provision from it but

law on a subject in general. There is, however, no controversy on the point that when any Act or

rules are adopted in any later Act or rules, such adoption normally whether by incorporation or

mere reference takes in all the amendments in the earlier Act or rules till the date of adoption.

(xiii) Codifying and Consolidating Statutes :

Codifying statutes – The purpose of a codifying statute is to present an orderly and

authoritative statement of the leading rules of law on a given subject, whether those rules are to

be found in statute law or common law.

The essence of a codifying statute “is to be exhaustive on the matters in respect of

which it is declared the law and it is not the province of a Judge to disregard or go outside the

letter of the enactment according to its true construction”. Thus a question of res judicata in

relation to a suit has to be decided solely in terms of section 11 of the Civil Procedure Code and

not on general principles of res judicata. A matter concerning the admission and disposal of

criminal appeals has to be dealt with in terms of code of criminal procedure and not outside

those provisions, and a court has no power to grant exemption from the bar of limitation except

in accordance with the provisions contained in the Indian Limitation Act. Similarly in construing

the Hindu Succession Act 1956, which is an Act to amend and codify the law relating to

interstate succession among Hindus, it is not permissible to apply the principles of Hindu Law

on matters covered by the Act.

Consolidating statutes – The purpose of the consolidating statute is to present the whole

body of statutory law on a subject in complete form, repealing the former statute. In case of

purely consolidating statutes the presumption is that such a statute is not intended to alter the

law, but this prime facie view has to yield to plain words to the contrary. Consistent with the

initial presumption, that alteration of law is not intended, certain principles logically follow. It is

thus relevant to refer to the previous state of the law or to judicial decisions interpreting the

repealed Acts for purposes of construction of corresponding provisions in the consolidating Act.

Indeed the question of construction of a section in a consolidating Act may for this reason be

really a question of construction of an earlier Act in which that section first appeared, and it may

be necessary to refer to the various Acts in the series as also to the common law existing at the

time when the earliest Act was enacted. Further, as provisions in consolidating act may have

their origin in different legislations, in case of inconsistency between two such provisions, it may

be legitimate to refer to respective dates of their first enactment for resolving the inconsistency.

Similarly, the presumption that same word when used at different places in the same Act has

the same meaning, has hardly any application to consolidating Act when once it is shown that

the different provisions where the same word occurs had their origin in different legislations.

And, statutes not expressly repealed or modified will be assumed not to have been affected by a

consolidating Act by mere use of some general words in certain of its provisions. On the same

principle any well-established principle of general law will not be taken to be abrogated without

clear words by a consolidation Act.

It is not permissible to construe a section in the consolidating Act in such cases with

reference to circumstances existing at the time when it was first enacted in a former Act.  A

consolidating Act may further be an amending act. This additional purpose is usually indicated

in the preamble or in the long title by use of words ‘An Act to consolidate the amend’. It is not a

sound canon of construction to refer to the provisions in repealed statutes when the

consolidating statute contains enactment dealing with the same subject in different terms. Even

when a section from an earlier act is repeated in a consolidation Act in identical terms the

framework in which it is placed may be different.

The distinction between consolidating statutes and other statutes for purposes of

interpretation is being obliterated. Recent decisions have emphasized that a consolidation act

should be interpreted according to normal canons of construction and recourse to repealed

enactments can be taken only to solve any ambiguity, for the process of consolidation would

lose much of its point if, whenever a question as to construction of a consolidating act arose,

reference had to be made to the statutes which it has consolidated and repealed. The primary

rule of construction of a consolidation act is to examine the language used in the act itself

without any reference to the repealed statutes. It is only when the consolidation act gives no

guidance as to its proper interpretation that it is permissible to refer to the repealed enactments

for guidance and it is never legitimate to have recourse to repealed enactments to make

obscure or ambiguous that which is clear in the consolidation act.  It is only when there is a real

or substantial difficulty or ambiguity that the court is to attempt to resolve the difficulty or

ambiguity by reference to the legislation which has been repealed and re-enacted in the

consolidation act.

(xiv) Later Social, Political and Economic Developments and Scientific

It is possible that in some special cases a statute may have to be historically interpreted

“as if one were interpreting it the day after it was passed.” But generally statutes are if the

“always speaking variety” and the court is free to apply the current meaning of the statute of

present day conditions. Reference to the circumstances existing at the time of the passing of the

statute does not, therefore, mean that the language used, at any rate, in a modern statute,

should be held to be inapplicable to social, political and economic developments or to scientific

inventions not known at the time of the passing of the statute.

In dealing with the word ‘textiles’ and in holding that cotton/woolen dry felts are textiles,

the Supreme Court said that it must be remembered that the concept of textiles is not a static

concept and it has, having regard to newly developing materials, methods, techniques and

processes, a continually expanding content the new kinds of fabrics may be invented which may

legitimately, without doing any violence to the language, be regarded as textiles.

In yet another case relating to the Indian Penal Code, 1860, the Supreme Court pointed

out that the code should as far as its language permits, be construed with reference to modern

Inventions :

needs not with reference to notions of criminal jurisdiction prevailing at the time when the code

was enacted.

. INTERNAL AIDS OF INTERPRETATION

2. INTERNAL AIDS OF INTERPRETATION

Statute generally means the law or the Act of the legislature authority. The general rule

of the interpretation is that statutes must prima facie be given their ordinary meaning. If the

words are clear and free from ambiguity, there is no need to refer to other means of

interpretation. But if the words are vague and ambiguous then internal aids may be sought for

interpretation.

(i) Context :

If the words of a statute are ambiguous then the context must be taken into

consideration. The context includes other provisions of the statute, its preamble, the existing

state of law and other legal provisions. The intention behind the meaning of the words and the

circumstances    under which they are framed must be considered.

(ii) Long Title :

It is now settled that Long Title of an Act is a part of the Act and is admissible as an aid

to construction.  The long title which often precedes the preamble must be distinguished with

the short title; the former taken along with the preamble or even in its absence is a good guide

regarding the object, scope or purpose of the Act, whereas the latter being only an abbreviation

for purposes of reference is not a useful aid to construction.

The title of the Madras General Sales Tax Act, 1939, was utilized to indicate that the

object of the Act is to impose taxes on sales that take place within the province.

If the language is ambiguous the long title of the Act may be looked as to resolve the

ambiguity, but it may not be looked at to modify the interpretation of plain language.  The

operation of the Act could be in any way controlled by reference to the long title.  If the meaning

of an enactment is clear that meaning is not to be narrowed or restricted by reference to the

long title.

Referring to the Trade Dispute Act 1906 Lord Moulton said: “The Title of the Act is

undoubtedly part of the Act itself and it is legitimate to use it for the purpose of interpreting the

Act as a whole and ascertaining its scope”.

(iii) Preamble :

The preamble of a statute like the long title is a part of the Act and is an admissible aid to

construction.  Although not an enacting part, the preamble is expected to express the scope,

object and purpose of the Act more comprehensively than the long title.

The preamble of a statute is a prefatory statement at its beginning following the title and

preceding the enacting clause, explaining or declaring the policy and purpose, the reasons and

motive for, and the object sought to be accomplished by the enactment of the statute.  The

preamble of a statute like the long title is a part of the Act and is an admissible aid to

construction.

The preamble in general, affords a clue to discover the plain object and the general

intention of the Legislates in passing the Act and often helps to the solution of doubtful points.

Though the preamble may afford useful light as to what a statute intends to reach, it is settled

rule that the preamble cannot, for any purpose, control, restrict, extend, qualify, alter, detract

from or add to the enactments themselves where they are expressed in clear and unambiguous

terms.  A preamble can only be brought in as an aid to construction if the language of a statute

is not clear and admits of plurality of meanings, but where it is clear and unambiguous preamble

cannot be used to extend or limit the meaning and scope of a statute. Aid can be taken from the

preamble which denotes the policy and the object behind the Act.  The Preamble is the key to

the statute and affords clue to the scope of the statute when the words construed by themselves

without the aid of the preamble are fairly capable of more than one meaning.

The principle has also been enunciated by the Supreme Court which observed: “It is one

of the cardinal principles of construction that where the language of an Act is clear, the

preamble must be disregarded though, where the object or meaning of an enactment is not

clear, the preamble may be resorted to explain it.  Again, where very general language is used

in an enactment which, it is clear must be intended to have a limited application, the preamble

may be used to indicate to what particular instances, the enactment is intended to apply.  We

cannot, therefore, start with the preamble for construing the provisions of an Act, though we

could be justified in resorting to it, nay, we will be required to do so, if we find that the language

used by Parliament intended that it should have a limited application.”

It is, therefore, permissible to have recourse to it as an aid to construction of the

enacting provisions.

In Kashi Prasad v State, the court held that even though the preamble cannot be used to

defeat the enacting clauses of a statute, it can be treated as a key for the interpretation of the

statute.

(iv) Headings :

The view is now settled that the Headings or Titles prefixed to sections or group of

sections can be referred to in construing an Act of the Legislature.

“A Heading” according to one view, “is to be regarded as giving the key to the

interpretation of the clauses ranged under it, unless the wording is inconsistent with such

interpretation,” and so the headings might be treated “as preambles to the provisions following

them”. But according to the other view resort to the heading can only be taken when the

enacting words are ambiguous.

Recently the Supreme Court expressed itself as follows: “It is well settled that the

headings prefixed to sections or entries cannot control the plain words of the provisions; they

cannot also be referred to for the purpose of construing the provision when the words used in

the provision are clear and unambiguous; nor can they be used for cutting down the plain

meaning of the words in the provision.  Only in the case of ambiguity or doubt the heading or

sub-heading may be referred to as an aid in construing the provision but even in such a case it

could not be used for cutting down the wide application of the clear words used in the provision.”

These headings or sub-headings cannot either control, restrict or extend the scope of

the sections when the language used is free from ambiguity.  They are not to be taken into

consideration if the language or the section is clear.  When the language of the enactment in

ambiguous the headings can be taken an indication of what the Legislature mean and may help

the court to remove the doubt.

A heading to a group of sections cannot, however, be pressed into constructive limitation

upon the exercise of the powers given by the express words of the Act.  They cannot control the

plain words of the statute, but they may explain ambiguous words.  If there is any doubt in the

interpretation of the words of the section, the headings certainly help court to resolve the doubt.

(v) Marginal notes :

Marginal notes are the notes that are printed at the side of the section in an Act and it

summarizes the effect of the section. They are not part of the statute.

Although opinion is not uniform, the weight of authority is in favour of the view that the

marginal note appended to a section cannot be used for construing the section.

At any rate, there can be no justification for restricting the section by the marginal note,

and the marginal note cannot certainly control the meaning of the body of the section if the

language employed therein is clear.

Marginal notes appended to Articles of the Constitution have been held to constitute part

of the Constitution as passed by the Constituent Assembly and therefore they have been made

use of in construing the Articles, i.e. Art. 286, as furnishing “prima facie”, “some clue as to the

meaning and purpose of the Article”.

The Privy Council has ruled that the marginal note to the section of an enactment cannot

be referred to for the purpose of construing the Act.  There is no justification for restricting the

contents of a section by its marginal notes. They are not part of the Act.  A marginal note is

merely an abstract of the clause intended to catch the eye.  Although a marginal note cannot

control the clear language of the section, or override the provisions of the enactment, the Courts

can consider it for the propose of arriving at a conclusion as to what according to the legislature

was the purpose of the section.  The marginal note cannot, however, affect the construction of

the language used in the body of the section if it is otherwise clear and unambiguous.  Marginal

notes to the section are, not to be referred to for the purpose of construction, unless they have

been inserted with the assent of the legislature. Although a marginal note  cannot afford any

legitimate aid to the construction of section, it can, however, be relied upon as indicating the drift

of the section.

(vi) Punctuation :

Punctuation marks cannot control, vary or modify the plain and simple meaning of the

language of the statute.  At the most they can aid in construction of ambiguous statutes.  Such

assistance is also subject to the condition that the punctuation marks have been inserted with

accuracy.

Punctuation of a law, generally speaking, does not control or affect the intention of the

legislature in its enactment.  The intention is generally gathered from the context to which the

words relate. Even where punctuation sometimes lends assistance in the construction of

sentences, they are always subordinate to the requirement of the context.

When a statute is carefully punctuated and there is doubt about its meaning, weight

should undoubtedly given to the punctuations. The punctuation cannot certainly be regarded as

controlling element and cannot be allowed to control the plain meaning of the text.

In Gopalan’s case, KANIA, C.J., in construing Art. 2(7) (a) of the Constitution, referred to

the punctuation and derived assistance from it in reaching his conclusion that Parliament was

not obliged to prescribe both the circumstances under which, and the class or classes of cases,

in which a person may be detained for a period longer than three months, without obtaining the

opinion of Advisory Board and that Parliament on a true construction of the clause could

prescribe either or both.  The use of the word ‘which’ twice, read with the comma put after each

‘which’ was relied upon as indicative of this construction.  This view has recently been overruled

in the case of Sambhu Nath Sarkar v. State of W.B.  But it would appear, at any rate, with

respect to modern statutes, that if the statute in question is found to be carefully punctuated,

punctuation, though a minor element, may be resorted to for purpose of construction.

(vii) Definition/ Interpretation clause :

It is common to find in statutes “Definitions” of certain words and expressions used

elsewhere in the body part of the statute.  The object of such definitions is to avoid the necessity

of frequent repetitions in describing all the subject matter to which the word or expression so

defined is intended to apply.  Definition section may borrow definitions from an earlier Act and

the definitions so borrowed need not be found in definition section hut in some other provisions

of the earlier Act.

The Legislature has power to define a word even artificially.  So the definition of a word

in the definition section may either be restrictive of its ordinary meaning or it may be extensive

of the same.  When a word is defined to ‘mean’ such and such, the definition is prima facie

restrictive and exhaustive; whereas, where the word defined as declared to ‘include’ such and

such, the definition is prima facie extensive. When by an amending Act, the word ‘includes’ was

substituted for the word ‘means’ in a definition section, it was held that the intention was to

make it more extensive.  Further, a definition may be in the form of ‘means and includes’, where

again the definition is exhaustive; on the other hand, if a word is defined ‘to apply to and

include’, the definition is understood as extensive.

The inclusive definition of ‘district judge’ in Article 236 (a) of the Constitution has been

very widely construed to include hierarchy of specialized Civil Courts viz. Labour Courts and

Industrial Courts which are not expressly included in the definition.

The definition section may itself be ambiguous and may have to be interpreted in the

light of the other provisions of the Act and having regard to the ordinary connotation of the word

defined.  A definition is not to be read in isolation.  It must be read in the context of the phrase

which it defines, realizing that the function of a definition is to give precision and certainty to a

word or phrase which would otherwise be vague and uncertain but not to contradict it or

supplant it altogether.

Wide words used in an interpretation clause may thus be given a limited meaning having

regard to the context as a whole for a word in a statute whether it be in the body of the statute or

in the interpretation clause is not to be construed without reference to the context in which it

appears.  However, it will not be correct to say that a wide word in an inclusive definition should

be given a limited scope by reference merely to the ordinary meaning of the word defined.

When a word has been defined in the interpretation clause, prima facie that definition

governs whenever that word is used in the body of the statute.

When a word is defined to bear a number of inclusive meanings the sense in which the

word is used in a particular provision must be ascertained from the context of the scheme of the

Act, the language of the provision and the object intended to be served thereby.

In the words of WANCHOO, J.:  “It is well settled that all statutory definitions or

abbreviations must be read subject to the qualification variously expressed in the definition

clauses which created them and it may be that even where the definition is exhaustive

inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have

a somewhat different meaning in different sections of the Act depending upon the subject or

context.  That is why all definitions in statutes generally begin with the qualifying words, similar

to the words used in the present case, namely ‘unless there is anything repugnant in the subject

or context’.

Because of Article 367 of the Constitution, the General Clauses Act, 1897, ‘unless the

context otherwise requires’, applies for construction of the Constitution. The definition of ‘State’

in Section 3(58) of the General Clauses Act includes ‘Union Territories’ and, therefore, the word

‘State’ in Article 3 and entry 80 of the Union List in the Constitution includes Union Territories.

But as the context otherwise requires the word ‘State’ in Article 246 does not include Union

Territories.

Similarly in construing the word ‘workman’ in section 33-C(2) of the Industrial Disputes

Act, 1947, it was held that the word included a dismissed workman although in the definition of

that word as given in section 2, a dismissed workman is included only for the purpose of

industrial disputes under section 10.

(viii) Proviso :

The normal function of a proviso is to except something out of the enactment or to

qualify something enacted therein which but for the proviso would be within the purview of the

enactment.

In construing a section, full and natural meaning should be given to a proviso, if any.

The proper function of a proviso is to except and deal with a case which would otherwise fall

within the general language of the main enactment and its effect is confined to that case.  The

proper canon of construing a section which has several provisos, is to read the section and the

proviso as a whole, reconcile them and give a meaning to the whole section along with the

proviso which is a comprehensive and logical meaning.  The function of a proviso is to take out

of a section a part of the category to which the section applies.

A proviso to a section in a statute is not an independent section calling for a construction

entirely removed and detached from the construction to be placed on the main section.  A

proviso is subsidiary to the main section and has to be constructed in the light of the section

itself.  It is true that it is also one of the rules of interpretation of statutes that if there is a clear

conflict between the enacting clause and the proviso, or if the proviso is redundant, then the

proviso will have to go. A proviso should not be construed in a manner what would nullify the

effect of the main section to which it is merely-a proviso.

The language of a proviso even if general is normally to be construed in relation to the

subject-matter covered by the section to which the proviso is appended.  In other words

normally a proviso does not travel beyond the provision to which it is a proviso.

The application of this rule presents difficulty when a proviso in a statute does not form

part of a section but is itself enacted as a separate section.  The drafting of a proviso in such a

form makes it necessary to determine as to which section or sections the section containing the

proviso is enacted as exception or qualification.

Since the natural presumption is that but for the proviso, the enacting part of the section

would have included the subject-matter of the proviso, the enacting part should be generally

given such a construction which would make the exceptions carved out by the proviso

necessary and a construction which would make the exceptions unnecessary and redundant

should be avoided.

The general rule in construing an enactment containing a proviso is to construe them

together without making either of them redundant or otiose.  Even if the enacting part is clear,

effort is to be made to give some meaning to the proviso and to justify its necessity. But a

clause or a section worded as a proviso, may not be a true proviso and may have been placed

by way of abundant caution.

To read a proviso as providing something by way of an addendum or as dealing with a

subject not covered by the main enactment or as stating a general rule as distinguished from an

exception or qualification is ordinarily foreign to the proper function of a proviso. However, this is

only true of a real proviso.  The insertion of a proviso by the draftsman is not always strictly

adhered to its legitimate use and at times a section worded as a proviso may wholly or partly be

in substance a fresh enactment adding to and not merely excepting something out of or

qualifying what goes before.

A proviso will not be normally construed as reducing the purview of enactment to a

nullity or to take away a right clearly conferred by the enactment but it has been held that if a

proviso on its true construction “is directly repugnant to the purview, the proviso shall stand and

be a repeal of the purview, as it speaks the last intention of the makers”. And, on similar logic, it

has also been held that if out of two provisos the later is repugnant to the earlier one, the later

prevails.

(ix) Explanations :

An Explanation is at times appended to a section to explain the meaning of words

contained in the section. It becomes a part and parcel of the enactment.  The meaning to be

given to an ‘Explanation’ must depend upon its terms, and “no theory of its purpose can be

entertained unless it is to be inferred from the language used.”  But if the language of the

Explanation shows a purpose and a construction consistent with that purpose can be

reasonably placed upon it, that construction will be preferred as against any other construction

which does not fit in with the description or the avowed purpose.

When the section deals with two categories of cases e.g. residential and non-residential

accommodations, an explanation to the section which is limited in scope to one category,

namely residential accommodations, cannot affect the scope of the section with reference to the

second category, namely non-residential accommodations.

An explanation may be added to include something within or to exclude something from

the ambit of the main enactment or the connotation of some word occurring in it. Even a

negative Explanation which excludes certain types of a category from the ambit of the

enactment may have the effect of showing that the category leaving aside the excepted types is

included within it. An explanation, normally, should be so read as to harmonize with and clear

up any ambiguity in the main section and should not be so construed as to widen the ambit of

the section. It is also possible that an explanation may have been added in a declaratory form to

retrospectively clarify a doubtful point in law and to serve as a proviso to the main section or ex

abundant cautela to allay groundless apprehensions.

(x) Schedules :

Schedules appended to statutes form part of the statute. They are added towards the

end and their use is made to avoid encumbering the sections in the statute with matters of

excessive detail. They often contain details and forms for working out the policy underlying the

sections of the statute, and at times they contain transitory provisions which remain in force till

the main provisions of the statute are brought into operation. Occasionally they contain such

rules and forms which can be suitably amended according to local or changing conditions by

process simpler than the normal one required for amending other parts of the statute. The

division of a statute into sections and Schedules is a mere matter of convenience and a

Schedule therefore may contain substantive enactment which may even go beyond the scope of

a section to which the Schedule may appear to be connected by its heading. In such a case, a

clear positive provision in a Schedule may be held to prevail over the prime facie indication

furnished by its heading and the purpose of the Schedule contained in the Act. However, if the

language is not so clear, the provision in the Schedule may be construed as confined to the

purpose indicated by its heading and the section in the statute to which it appears connected. In

case of conflict between the body of the Act and the Schedule the former prevails. Much

importance ordinarily is not given to the forms in the Schedule, as they are intended to suit the

generality of cases rather than all cases, and they give way to clear provisions of enactment.

But in case of doubtful words in the enactment a scheduled form may be utilized for the purpose

of throwing light on their meaning.

The Code of Civil Procedure consists of two parts, the first containing, sections called

the body of the Cody and the second containing orders in the schedules called the rules. The

body of the code contains provisions of substantive nature and lay down the general principles

and creates jurisdiction, while the orders contained in the schedule relate to procedure and

indicate the mode in which jurisdiction created by the body of the code has to be exercised. The

sections lay down the general principles, while the rules provide the means by which they can

be applied. If, however, the rules are inconsistent with the body of the Code, the latter would

prevail.

(xi) Illustrations :

Illustrations appended to a section form part of the statute and although forming no part

of the section, are of relevance and value in the construction of the text of the section and they

should not be readily rejected as repugnant to the section. But illustrations cannot have the

effect of modifying the language of the section and they cannot either curtail or expand the

ambit of the section which alone forms the enactment.

Illustrations in enactments provided by the legislature are valuable aids in understanding

the real scope of the text thereof. They are part of the statute. The illustrations, however, make

nothing law which would not be law without them. They only exhibit the law in full action. It has

been held in Shambhu Nath Mehra Vs. The State of Orissa, AIR 1956 SCR 199, that an

illustration does not exhaust the full control of the section which it illustrates and equally it can

neither curtail nor expand its ambit.

Although illustrations are to be accepted as being relevant and valuable for the

construction of the section, they merely exemplify the application of the rule contained in the

section. They do not have the effect of modifying or extending the language of the section which

alone form the enactment. It ought never be allowed to defeat, control or restrict the plain

meaning of the section itself and certainly it ought not to do so when the effect would be to

curtail the right when the section in its ordinary sense would confer. An illustration ordinarily

exemplifies the particular section to which it is appended, and the court cannot import into it an

illustration to one section, which is applicable to a particular matter, a subsequent proposition of

law or a rule of construction embodied in another section which is not so applicable.

(xii) Meaning of the words :

All parts of a statute must be construed together so as to avoid inconsistencies and

conflicts between various provisions contained in it. To ascertain the meaning of a section, it is

not permissible to omit any part of it, the whole section should be read together and an attempt

should be made to reconcile both the parts.

Where the court is dealing with the subsections of a section, it is necessary that the two

sub-sections must be construed as a whole, each portion throwing light, if need be on the rest.

The two sub-sections must be read as part of an integral whole and being inter-dependent. An

attempt should be made in construing them to reconcile them, if it is reasonably possible to do

so, and to avoid repugnancy. If repugnancy cannot possibly be avoided, then a question may

arise as to which of the two should prevail. But this question can arise only if repugnancy cannot

be avoided.

Every clause of a statute should be construed with reference to the context and other

clauses in the statute so as to make a consistent enactment of the whole statue. No part of a

statute should be construed in isolation for the reason that the intention of the law-makers is to

be found not in one part of the statute or another but in the entire enactment and the contention

can be best gathered by viewing a particular part of the statute not detached from its context in

the statute but in connection with its whole context.

(xiii) Non-obstante clause :

The expression “Non-obstante” means notwithstanding. Sometimes a section

commences with the clause stating that notwithstanding anything contained in this Act or in any

other law for the time being. And, in case of conflict, the idea is to give the enacting or operative

part of the section an overriding effect over the provisions of the Act found in the non-obstante

clause. The enacting part of a statute must, where it is clear, be taken to control the non-

obstante clause where both cannot be read harmoniously. But the non-obstante clause need

not necessarily and always be co-extensive with the operative part so as to have the effect of

cutting down the clear terms of an enactment and if the words of the enactment are clear and

are capable of a clear interpretation on a plain grammatical construction of the words, the non-

obstante clause cannot cut down the construction and restrict the scope of its operation.

LITERAL INTERPRETATION :

INTERPRETATION OF STATUTES

It is the duty of the Court to interpret the Act and give meaning to each word of the Statute and

to act upon the true intention of the legislature. The most common rule of interpretation is that

every part of the statute must be understood in a harmonious manner by reading and construing

every part of it together.  A statute is to be construed according to the intention of its maker. The

maxim “A Verbis legis non est recedendum” means that you must not vary the words of the

statute while interpreting it. The object of interpretation of statutes is to determine the intention

of the legislature conveyed expressly or impliedly in the language used. If a statutory provision

is open to more than one interpretation, the Court has to choose that interpretation which

represents the true intention of the legislature. The function of the court is only to expound and

not to legislate. The correct interpretation is one that best harmonizes the words with the object

of the statute. A statute is designed to be workable, and the interpretation thereof by a court

should be to secure that object.   A construction which reduces the legislation to futility should

1. LITERAL INTERPRETATION :

It is the duty of the court not to modify the language of the Act and if such meaning is

clear and unambiguous, effect should be given to the provisions of a statute whatever may be

the consequence. The idea behind such a principle is that the legislature, being the supreme

law making body must know what it intends in the words of the statute. Literal interpretation has

been called the safest rule because the legislature’s intention can be deduced only from the

language through which it has expressed itself. The bare words of the Act must be construed to

get the meaning of the statute and one need not probe into the intention of the legislature. The

elementary rule of construction is that the language must be construed in its grammatical and

literal sense and hence it is termed as litera legis or litera script.

The Golden Rule is that the words of a statute must prima facie be given their ordinary

meaning. This interpretation is supreme and is called the golden rule of interpretation. Natural

and ordinary meaning of words should not be departed from unless it can be shown that the

legal context in which the words are used requires a different meaning.

In Bhavnagar University v Palitana Sugar Mills Pvt Ltd, it was held that according to the

fundamental principles of construction, the statute should be read as a whole, then chapter by

chapter, section by section and then word by word.

In Jugal Kishore Saraf vs. Raw Cotton Co. Ltd. AIR 1955 SC 376, it was observed: “The

cardinal rules of construction of statutes is to read the statutes literally, that is by giving to the

words their ordinary, natural and grammatical meaning.  If, however, such reading leads to

absurdity and the words are susceptible of author meaning, the court may adopt the same. But

if no such alternative construction is possible the court must adopt the ordinary rule of literal

In determining the meaning of any word or ordinary meaning of that word or phrase in a

statute, the first question to be asked is – “What is the natural or ordinary meaning of that word

or phrase in its context in the statute?  It is only when that meaning leads to some result which

cannot reasonably be supposed to have been the intention of the Legislature, that it is proper to

look for some other possible meaning of the word or phrase”.   The context, as already seen, in

the construction of statutes, means the statute as a whole, the previous state of the law, other

statutes in pari materia, the general scope of the statute and the mischief that it was intended to

In a case before the Supreme Court, the question was as to the meaning of the word

‘vegetables’ as it occurred in the C.P. and Berar Sales Tax Act, 1947 as amended by Act 16 of

1948, whether it included betel leaves or not.  Although the word in natural history and

according to dictionary meaning is comprehensive enough to include betel leave, the Supreme

Court held that “being a word of everyday use it must be construed in its popular sense,

meaning that sense which people conversant with the subject-matter with which the statute is

dealing would attribute to it” and so the word was construed to denote those classes of

vegetable matter which are grown in kitchen gardens.  It was, therefore, held that betel leaves

and sugarcane were excluded from its purview.

The Supreme Court “has consistently taken the view that, in determining the meaning or

connotation of words and expressions describing an article in a tariff Schedule, one principle

which is fairly well settled is that those words and expressions should be construed in the sense

in which they are understood in the trade by the dealer and the consumer.  The reason is that it

is they who are concerned with it, and, it is the sense in which they understand it which

constitutes the definitive index of legislative intention.

When a word has acquired a special connotation in law, dictionaries cease to be helpful

in interpreting that word.

The words, ‘Judgment’ and ‘Final Order’ have acquired a technical meaning.  ‘Judgment’

means “the declaration or final determination of the rights of the parties in the matter brought

before the Court” and ‘Final Order’ means “an order which finally determines the rights of the

parties and brings the case to end”.

If the words of a statute give rise to two or more construction, then the construction

which validates the object of the Act must be given effect while interpreting. It is better to

validate a thing than to invalidate it or it is better the Act prevails than perish. The purpose of

construction is to ascertain the intention of the parliament.

THE MISCHIEF RULE :

When the material words are capable of bearing two or more constructions, the most

firmly established rule for construction of such words “of all statutes in general (be they penal or

beneficial, restrictive or enlarging of the common law)” is the rule laid down in Haydon’s case

which has “now attained the status of a classic.  The rule, which is also known as ‘purposive

construction’ or mischief rule, enables consideration of four matters in construing an Act.

The rule then directs that the courts must adopt that construction which ‘shall suppress

the mischief and advance the remedy”.

The Supreme Court in CIT Vs. Sodra Devi, AIR 1957 SC 832 expressed the view that

the rule in Heydon’s case is applicable only when the words in question are ambiguous and are

reasonably capable of more than one meaning.

But it has already been seen that for deciding whether the language used by the

Legislature is plain or ambiguous it has to be studied in its context, and ‘context’ embraces

previous state of the law and the mischief which the statute was intended to remedy.  Therefore,

it is not really correct to say that the rule in Heydon’s case is not applicable when the language

is not ambiguous.  The correct principle is that after the words have been construed in their

context and it is found that the language is capable of bearing only one construction, the rule in

Heydon’s case ceases to be controlling and gives way to the plain meaning rule.

If the language used is capable of bearing more than one construction, in selecting the

true meaning regard must be had to be consequences resulting from adopting the alternative

constructions.  A construction that results in hardship, serious inconvenience, injustice,

absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system

which the statute purports to regulate has to be rejected and preference should be given to that

construction which avoids such results.  This rule has no application when the words are

susceptible to only one meaning and no alternative construction is reasonably open.

CONCEPT OF ‘LEGISLATIVE PRIVILEGES

CONCEPT OF ‘LEGISLATIVE PRIVILEGES’:- Privileges are attached to House of

Legislature collectively, or to its members individually, with a view to enabling the house

to Act and discharge its high functions effectively, without fear or favour, or without any

hindrance, interference or obstruction from any quarter.

The Indian Constitution makers appreciated the need to confer certain privileges

to the legislatures in India.  The Constitution specifically defines only a few privileges

but the rest of the privileges of the legislatures in India shall be those which were enjoyed

by the House of Commons on the date of commencement of the Constitution.

The relevant provisions in the Constitution defining legislative privileges are

Articles 105 and 194.  Article 105 relates to Parliament while Article 194 relates to the

State Legislature.  Both these provisions are couched practically in similar language.  

Article 105 as it stood prior to the Constitution (42nd Amendment) Act, 1976 ran as

follows:

(1) Subject to the provisions of this Constitution….there shall be freedom of speech

in Parliament.

(2)  No member of Parliament shall be liable to any proceedings in any Court in

respect of any things said or any vote given by him in Parliament or any

committee thereof, and no person shall be so liable in respect of the publication

by or under the authority of either House of Parliament any report, papers, votes

or proceedings.

(3) In other respects, the powers privileges and immunities of each House of

Parliament and of the members and the committees of each House, shall be such

as may from time to time be defined by Parliament by law, and until so defined,

shall be those of the House of Commons of the Parliament of the United

Kingdom, and of its members and committees, at the commencement of this

Constitution.

(4) The provisions of clause (1), (2) and (3) shall apply in relation to person who by

virtue of this Constitution have the right to speak in and otherwise to take part in

the proceedings of, a House of Parliament or any committee therefore as they

apply in relation to members of Parliament.

PARLIAMENTARY PRIVILEGES AND THE PRESS:  Clause (1) of Article

105 provides for freedom of speech of a member in a House of Parliament.  A full

and free debate is of the essence of Parliamentary Democracy. This privilege has

given rise to two other privileges of the House, viz., (i) to hold  meetings of the

House in camera and thus exclude strangers from listening to the debates in the

House, and (ii) prohibiting the publication of the debates and proceedings held

within the House.

Clause (2) of Article 105 confers an immunity on members of a House  of

Parliament as well as on the publications made under the authority of the House

from any legal proceedings.

It is clause (3) of Article 105, which is crucial for our present purpose.

Before, 1976, this clause provides that a House could enjoy such privilege as were

defined by Parliament (or a State legislature) by law and until so defined a Hose

would have the same privileges as the House of Commons at the commencement

of the Constitution.  Thus, the legislative privileges which, by and large affected

the press were the ones which were claimed by a legislative House in India under

Article 105(3) or Article 194(3).

In 1976, Article 105(3) underwent a change by Forty Second Amendment

Act.  Later in 1978 another amendment was made in Article 105(3), which today

stands, follows as under:

“…shall be such as may from time to time be defined by Parliament by law, and,

until so defined, shall be those of that House and of its members and committees

immediately before the coming into force of Section 15 of the Constitution (44th

Amendment) Act, 1978.”

Similarly, Article 194(3) also underwent changes as noted above.

The purpose of these amendments was to drop from the constitution any

reference to the House of Commons.

POWER TO PUNISH FOR CONTEMPT –KEYSTONE OF

PARLIAMENTARY PRIVILEGE:-

The most potent weapon in the hands of a House of Legislature to enforce

is privileges it is the power to punish for its contempt, or for “breach of

privilege”.  A House can punish anyone, whether a member or any outsider, for

its contempt or breach of privilege. The difficulty here is that the grounds on

which a person can be held guilty of contempt of a House are vague uncertain and

indefinite and have not been specified anywhere.

Generally speaking, contempt of a House is committed when any Act or

omission impedes or obstructs a House in the discharge of its functions, or which

obstructs or impedes any member of the officer of the House in the discharge of

his duties or which has a tendency directly or indirectly to produce such result.

Committee of Privileges:- Each House of Parliament has a Committee of

Privileges.  The Committee is to determine the reference to the Acts of each case

whether a breach of privilege is involved.  It can call oral and documentary

evidence.  The report of the Committee is presented to the House concerned,

which takes appropriate action on it.

FUNDAMENTAL RIGHT AND PRIVILEGES:

There has been some confusion on the question whether the Fundamental

Rights control in any way the privileges which a House enjoy under Article

105(3) and which is to prevail in case of a conflict between such a privilege and

Fundamental Rights?  In Gunupati v. Nafisul Hassan (AIR 1954 SC 836), the

Supreme Court ordered the release of the Editor of “Bitz”, arrested on a charge of

contempt of the House under the Speaker’s warrant, on the ground that he had not

been produced before a Legislature within 24 hrs of his arrest as required by

Article 22(2).  This created the impression that the Fundamental Rights would

control Parliamentary privileges.

In the Searchlight case(i.e., M.S.M. Sharma V. Sinha, AIR 1959 SC

395), the Supreme Court held by majority that the privileges enjoyed by a House

of Parliament under Article 105(3) were not subject to Article 19(1)(a) and,

therefore, a House was entitled to prohibition contravenes the Fundamental Right

of Speech and Expression under Article 19(1).  The   Gunupati(supra) was held

not binding as it was not a considered opinion on the subject.  The court observed

that Article 105(3) was not declared to be “subject to the Constitution” and

therefore it was as supreme as provision of the Constitution including the

Fundamental Rights.

Reconsidering the question of mutual relationship between the

Fundamental Rights and legislative privileges in Keshav Singh v. Speaker

Legislative Assembly (1965 SC 745), the Supreme Court held that the

Searchlight case excluded only Article 19(1)(a) and not other fundamental Rights

from controlling the legislative privilege.  It held that Article 21 would apply to

Parliamentary privileges and a person would be free to come to the court for a

writ of habeas corpus on the ground that he had been deprived of his personal

liberty not in accordance with law but for capricious or malafide reason.

Thus, the position appears to be that it is wrong to suppose that no

Fundamental Right applies to the area of legislative privileges.  Some

Fundamental Right like Art. 19(1)(a) do apply.  Perhaps Art. 21 do apply, while

the position with regard to others, e.g. Arts. 22(1) and (2) is not clear.  There is,

however, no doubt that if Parliament were to Act would not be free from the

controlling effect of the Fundamental Right.  Such provisions of the law as

contravene fundamental rights provisions of the law as contravene fundamental

rights would be invalid(C. Subra Manium v. Speaker L.A. 1969 Mad. 10).

PRIVILEGES AND THE COURTS:-

The question of Parliament and Court relationship often arises in privilege

matters. This involves several postulates: (1) who decides whether a particular

privilege claimed by a House exists or not; (2) When a privilege is held to exist, is

a House the final judge of how, in practice, that privilege is to be exercised; (3)

can be courts go into the question of validity or propriety of committal by a House

for its contempt or breach of privilege?

In England, there had been a good deal of controversy in the past between

the House of Commons and the Courts on these questions.  The era of legislative-

judiciary conflict in matters of privileges is now past in England.  A balance

between the two had now been established along the following lines: (1) the

courts recognize the common law privileges; (2) a new privilege can be created

for the House only by a law passed by Parliament and not merely by a resolution

of one House, (3) whether a particular privilege claimed by a House exists or not

is a question for the courts to decide.

So far as India is concerned, a House of Parliament may claim a privilege

if (i) the Constitution grants it specially, or (ii) it has been created by a law of

Parliament; or (iii) it was enjoyed by the House under Art. 105(3).  This naturally

brings the Courts into the area of Parliamentary privileges.  When a question

arises whether a particular privilege exist or not, it is for the courts to give a

definite answer by finding out whether it calls under any of the sources mentioned

above.   In a number of cases the courts have decided the question whether a

particular privilege claimed by a House exist or not. (The Searchlight’s case

(supra), Yashwant  Rao v. M.P. Legislative Assembly, AIR 1967 M.P. 95) of

course, when once, it is held that a particular privilege exist then it is for the

House to judge the occasinand the manner of its exercise and courts would not sit

in judgment over the way the House has exercised its privilege.

Each House of Parliament in India has a power to commit a person for its

contempt.  But the position remains vague on the question whether such

committal is immune from judicial scrutiny or not.  The question whether courts

can interfere with the power of a House to commit for its contempt arose most

dramatically in 1964 in the Keshav Singh’s case (supra), where the U.P.

Assembly claimed an absolute power to commit a person for its contempt and a

general warrant issued by it to be conclusive and free from judicial scrutiny.  This

case may be regarded as the high water marks of legislative judiciary conflict in a

privilege matter in which the relationship between the two was brought to a very

critical point, and the whole episode was reminiscent of the conflict between the

House of Commons and the Judiciary in England in 1689 when two judges were

committed by the House.

The brief facts of the Keshav Singh’s case are that Keshav Singh

published a pamphlet against a member of State Leg. Assemb.  House adjudged

him guilty of contempt and sentenced him to be reprimanded.  On March 14,

1964,  when the Speaker administered reprimand, he misbehaved.  The House

punished him for seven days imprisonment.  On March, 19, 1964, Solomon,

Advocate moved an habeas corpus petition under Article 226 which was heard by

two judges of the Allahabad High Court on behalf of Keshav Singh.  It was

alleged that his detention was illegal as the House had no authority to do so.  He

had not been given an opportunity to defend himself and that his detention as

malafide and against natural justice.  The court granted interim bail and order

released Keshav Singh.  The House resolved that Solomon, Adv. and the two

judges who passed the order had committed contempt of the House and they be

brought before the House.  The Judges moved petitions under Art. 226,

whereupon the full Bench of the Allahabad High Court stayed the implementation

of the resolution of the House.  The House then passed a clarificatory resolution

that its earlier resolution had given rise to misgivings that concerned persons

would be deprived of an opportunity of explanation, and that the concerned

judges were put under obligation to appear before the House  and explain why the

House should not proceed against them for its contempt.  This resolution was

against stayed by the High Court.  Thus, there emerged a complete legislative

judiciary deadlock.  The President of India, then referred the matter to the

Supreme Court for opinion under Art. 143.  By a majority of 6:1, the Supreme

Court held that the two judges had not committed any contempt of the legislature

by granting bail.  Art. 211 debars the State Legislature (Art. 121 in case of

Parliament) from discussing the conduct of a High Court judge. Therefore, the

Legislature cannot take any action against a High Court Judge for anything done

in the discharge of his duties.  The existence of a fearless and independent

judiciary being the basic foundation of the constitutional structure in India, no

Legislature has power to take action against a judge for its contempt alleged to

have been committed by the judge in the discharge of his duties. The Court also

held that the right of the citizens to move the judicature and the right of the

Advocates to assist that process must remain uncontrolled by Art.105(3). It is

necessary to do so enforcing the Fundamental Rights and for sustaining the Rule

of law in the country.

CODIFICATION OF PRIVILEGES AND PREVENTION OF ITS MISUSE:

In the wake of Keshav Singh’s case(supra), two contradictory ideas were

brought into bold relief.  One the one hand, the Speakers wanted the Constitution

to be amended so as to conclude an absolute power to a House to commit any one

for its contempt.  On the other hand, there arose a demand for codification of

legislative privileges.

In its Fourth Report the Privileges Committee of the Lok Sabha has

recommended against any legislation to codify Parliamentary privileges. In the

new political culture, the Parliamentary privileges have become a multi-headed

monster.  The law of Parliamentary privileges has become a weapon in the hands

of the ruling parties, misused in many ways for personal, party and partisan ends

through their majorities in the Houses and Committees.

The most fundamental privilege of the legislators which is mentioned in

the Constitution itself is that of the freedom of speech and vote in the discharge of

one’s duties as a legislator.  In all respects, the Constitution has provided for each

House laying down its privileges by law and until such laws are made, the

position in this regard could be the same as in the British House of Commons.  By

making this provision for regulation of privileges by law the Constitution makers

made it clear that they expected the privileges to be subordinate to the

fundamental freedoms of the individual and amenable to judicial review.

Real democracy requires three basic aspects, i.e., accurate information,

equal and effective participation of all citizens in day to day governance,

transparency and accountability on part of those holding public office.

Art. 19 reveals about the freedom of press, which also includes right to

information.  India is a democratic country and both these rights are the basic

components of democracy.  According to Article 105, which protects privileges of

Parliament always curtailed the wings of Art. 19 .  The whole scenario is changed

after the enactment of the Right to Information Act, 2002.  The RTI Act is

recognized under Art. 19 and the privileges under Art. 105.

Member of Legislature should not forget that they are not above the

people. How can they be a law into themselves. To prevent ugly situations

appearing again and again in the name of protecting Parliamentary privileges,

the only honest and straightforward course would be for Parliament and State

Legislature to abide by the constitutional provision and codify their privileges

by law.

FUNDAMENTAL DUTIES: A NEED OF TIME:

Rights and duties are two sides of the same coin and co-relative with each other.

The fundamental duties are, therefore, intended to serve as a constant reminder to every

citizen.  There are certain duties of the citizens in the Japanese Constitution, while the

American Constitution provides only for F.R.s & does not talk about duties of citizens.

This concept of Fundamental Duties has been borrowed from Irish (Ireland) Constitution.

In Indian Constitution, there are numerous fundamental rights, so it is obligatory to

observe certain basic norms of democratic conduct and democratic behavior.  Since

ancient times in India,   “Kartavya” i..e, performance of one’s duties towards society and

also towards parents, exists.  Gita also cited about performance of duties in the following

terms:-

“Karmanya Vadhika Raste Maa Phaleshu Kada Chana”.

The preamble to the Constitution of India secures to all the citizens liberty of though,

expression, belief faith and worship, these are fundamental rights of the citizens.  The rest

of the preamble emphasis on the duties of ‘justice, social economic and political”.

FUNDAMENTAL DUTIES OF THE CITIZENS

The Fundamental Duties of citizens were added to the Constitution by the 42nd

Amendment in 1976, upon the recommendations of the Swaran Singh Committee.

Originally ten in number, the Fundamental Duties were increased to eleven by the 86th

Amendment in 2002, which added a duty on every parent or guardian to ensure that

their child or ward was provided opportunities for education between the ages of six

and fourteen years. The other Fundamental Duties obligate all citizens to respect the

national symbols of India, including the Constitution, to cherish its heritage, preserve its

composite culture and assist in its defense. They also obligate all Indians to promote the

spirit of common brotherhood, protect the environment and public property, develop

scientific temper, abjure violence, and strive towards excellence in all spheres of life.

Citizens are morally obligated by the Constitution to perform these duties. However, like

the Directive Principles, these are non-justifiable, without any legal sanction in case of

their violation or non-compliance.  There is reference to such duties in international

instruments such as the Universal Declaration of Human Rights and International

Covenant on Civil and Political Rights, and Article 51A brings the Indian Constitution

into conformity with these treaties.

ENFORCEMENT OF DUTIES:

The duties incorporated in the Constitution by the 42nd Amendment are statutory

duties and shall be enforceable by law.  Parliament by law will provide penalties to be

imposed for failure to fulfill those duties and obligations.

National security:-The words given in the preamble to the Constitution “assuring the

dignity of the individual and the unity and integrity of the Nation” is intended to put an

end to separatist tendencies and make people feel that every part of India is their home.

Article 1 makes is clear that the States have no right to secede from the federation.

Article 19(2) empowers the State to impose reasonable restrictions on the freedom of

speech and expression in the interests of integrity of India.

Security of the state:- Article 19(2) provides that reasonable restrictions can be imposed

on freedom of speech and expression in the interest of security of the State.  In Ramesh

Thappar v. State of Madras, AIR 1950 SC 124, the Supreme Court observed that the

term security of the State refers only to serious and aggravated forms of public disorder,

e.g. rebellion, waging war against the State, insurrection (rebellion/revolution) and not

ordinary breaches of public order.

CO-RELATION OF RIGHTS AND DUTIES:- Rights and duties are the very

important elements of law.  The administration of justice, in most part, consists of the

enforcement of rights and the fulfillment of duties.  Rights and duties are correlated to

each other in such a way that one cannot be conceived of without the other.

The Supreme Court has used the Fundamental Duties to uphold the Constitutional

validity of statutes which seeks to promote the objects laid out in the Fundamental

Duties. These Duties have also been held to be obligatory for all citizens, subject to the

State enforcing the same by means of a valid law.  The Supreme Court has also issued

directions to the State in this regard, with a view towards making the provisions effective

and enabling a citizens to properly perform their duties.

Austin’s view:- The duties which are always correlated with a right are called ‘relative

duties’.  Austin says that there are four kinds of ‘absolute duties’:-

i. Duties not regarding persons (e.g. those owed to God and towards the lower

animals).

ii. Duties owed to persons indefinitely (e.g. towards the community).

iii. Self-regarding duties.

iv. Duties owed to the sovereign.

On a close examination of Austin’s view it becomes clear that it is wrong. The

absolute duties enumerated by him are not duties in the legal sense, or if they are

duties at all, they are not absolute.

Positive and negative duties: A positive duty implies some act on the part of the person

on whom it is imposed,e.g., if a person owes money to another, the former is under a duty

to pay the money to the latter.  This is a positive duty.  While if a person owns a piece of

land, all others have a duty not to interfere with his peaceful physical possession of that

piece of land, this is called negative duty.

Primary and secondary duties:- The primary duty is that duty which exists per se and

independent of any other duty.  The duty not to cause hurt to any person is a primary

duty.  A secondary duty is that duty whose purpose is only to enforce some other duty.

For example, if a person causes injury to another, the former is under a duty to pay

damages to the later.  This is secondary duty.  The duty not to cause injury is the primary

duty.  When a breach of this duty has been committed the secondary duty to pay damages

arises.

Hohfield’s Theory of Relationship:- Legal rights, in the strict sense, are correlative of

legal duties and are defined as interests which the law protects by imposing

corresponding duties on the other.  But legal rights in a wider sense of the term do not

necessarily correspond with duties.  The term ‘right’ in its wider sense has been identified

with powers, privileges and immunities.

Salmond says, “In this generic sense, a legal right may be defined as any

advantage or benefit conferred upon a person by a rule of law”.

Of rights, in this sense, there are four distinct kinds, viz., (1) rights; (2) liberties or

privileges; (3) Power; and (4) immunities.

Each of these kinds of rights has its correlative, namely; (1) duties; (2)No rights,

(3) liabilities; and (4) disabilities.  These relationships are designated as ‘jural relations’.

American jurist Hohfield was the first jurist who elaborated this jural relation and took

the analysis of Salmond to its logical end.

Hohfield set out this table of jural relations as follows:-

Jural Right Privilege Power Immunity

Correlatives Duty No-right Liability Disability

Jural Right Privilege Power Immunity

Opposities No-right Duty Disability Liability

Prof. G.L. Wiliams explains the relations of jural correlatives (vertical arrows and

read both ways), jural opposites( diagonal arrows and read both

ways) and jural contradictions(horizontal arrows and read both ways) as under:-

claim(Right in Liberty(or Privilege)

 Strieto sensu)

Duty No-claim(No right)

Power      Immunity

Liability Disability

Criticism:-

1. Hohfield’s scheme of jural relations has the clarity of though but there is no

practical utility.  These terms are not used in common parlance as, e.g., we always

say ‘right to vote’ and not ‘power of voting’.

2. Hohfield’s conceptions of ‘liberty’, liability’ and ‘disability’ are without juridical

significance.

3. Hohfield’s analysis was incorrect and incomplete in places.

4. The terminology is unusual and that it is unrealistic to expect the profession to

make a radical change in its vocabulary.

5. The scheme of Hohfield’s superfluous because the cases were in fact decided

without the aid of his scheme.

To sum up, the following are the four classes of rights conferred by the law as per

Salmond:-

(i) Right in the strict sense, when the law limits the liberty of others in my

behalf;

(ii) Liberty, when the law allows to my Will a sphere of unrestrained activity;

(iii) Power, when the law actively assists me in making my Will effective.

(iv) Immunity, when the law denies to others a particular power over me.

A right in the narrow sense is that which other person sought to do on my behalf;

a liberty is that which I may do innocently; a power is that which I can do effectively; an

immunity is that which other persons cannot do effectively in respect of me.

I enjoyed my rights through the control exercised by the law over the acts of

others on my behalf; I use my liberties with the acquiescence of the law; I use my powers

with its active assistance in making itself the instrument of my Will: I use my immunities

through its refusal to accord this active assistance to others.

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