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UNIT – III
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MAXIMS OF STATUTORY INTERPRETATION
1. Contemporanea expositio est optima et fortissima in lege (Cntemporaneous exposition is
the best and strongest in law): According to Maxwell, "It is said that the best exposition of a statute
or any other document is that which it has received from contemporary authority. Where this has
been given by enactment of judicial decision it is a course to be accepted as conclusive".
Words of a Statute will generally be understood in the sense which they bore when it was passed.
This rule does not, however, apply to modern statute.
According to Coke, the maxim contemporanea expositio was applied to construing ancient
statutes, but not to interpreting Acts which are comparatively modern.
2. "Construction in Bonam partem": The maxim cannotes that words must be taken in a lawful and
rightful sense. The word "lawful" cannotes any thing sanctioned or recognised by law. When,
therefore in execution of a decree or order of the court some properties are attached, it has to be
seen that the seizure is lawful and that the property belongs to the debtor. Further, the act must be
rightfully done, done in a lawful manner.
A statutory authority to abate nuisances would not justify an order to abate one when it could not be
obeyed without committing a -trespass.
3. Casus Omissus: The term means cases of omission. This maxim provides that omissions in a
statute cannot, as a general rule, be supplied by construction. The omissions of Legislature cannot
be rectified by the courts. A matter which should have been provided in a statute, cannot be supplied
by courts. No canon of construction permits the courts to supply a lacuna in a statute left by the
Legislature by inadvertence, because such an attempt amounts to making of law, which is beyond
the powers of judiciary. It should be kept in mind that the authority to enact, modify, amend or repeal
any law rests with legislature alone.
This rule has been effectively explained in following cases:
S.P. Gupta V. President of India (AIR 1982 SC 149)
State of Jharkhand V. Govind Singh, (2005) 10 SCC 437
4. "Expressio Unius Personae Vel Rei, Est Exclusio Alterius": The maxim cannotes that the
express mention of one person or thing is the exclusion of another. This rule may be employed to
denote intention of the legislature, although it would not be safe to regard it as an obligatory rule of
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law. In the words of Lopes, L.J., the maxim is "a valuable servant but a dangerous master".
Expressurn Facit Cessary Taciturn": Analogous to the just preceding maxim it cannotes that
when there is express mention of certain things, then any thing not mentioned is excluded. In other
words, the maxim lays down that express words put an end to implication.
The maxim expressio unius est exclusio alterius is a maxim for ascertaining the intention of the
legislature. Where the statutory language is plain and the meaning clear there is no scope for
applying the rule. (Parbhani Transport Co-operative Society V. The Regional Transport Authority
AIR 1960 SC 801).
5. Ut Res Magis Valeat Quam Pereat: This maxim lays down that it is better for a thing to have effect
than to be made void.
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According to Maxwell "the general rule is that the full effect must be given to every word, yet if no
sensible meaning can be given to a word or phrase, or if it would defeat the real object of the
enactment, it may, or rather it should, be eliminated.
The words of a statute must be construed so as to give a sensible meaning to them if possible. The
second consequence of this maxim is that a statute may not be extended to meet a case for which
provision has clearly and undoubtedly not been made.
6.
Stare decisis: The doctrine of stare decisis (to stand by past decisions) only means that where a
rule has become settled law, it is to be followed although some possible inconvenience may grow
from a strict observance of it. Thus, where a certain translation of texts of Hindu Law has been
accepted as correct and on which questions of title of property have been decided, the principle of
stare decisis would apply to prevent a reopening of the whole question involved on the ground that
such translation is wrong.
The full form of the maxim, stare decisis at non quieta movere, which means "to stand by decisions
and not to disturb what is settled".
PRESUMPTIONS IN STATUTORY INTERPRETATION
An Act made by the legislature represents the will of the people and that cannot be lightly interfered with. In
India the approach of the courts while examining an enactment is to start with the presumption of
constitutionality. The courts try to sustain the validity of a statute to the extent possible and they strike that
down only when it is not possible to sustain the same.
The court. should not approach the enactment with a view to pick holes or to search for defects of drafting,
much less in exactitude of the language employed. Indeed any such defects of drafting should be ironed out
as pan: of the attempt to sustain the constitutional validity of the enactment. The unconstitutionality must be
plainly and clearly established before an enactment is declared as void. The same approach holds good
while ascertaining the intent and purpose of an enactment or its scope and application. The court must
recognize the fundamental nature and importance of legislative process and accord due regard and
deference to it, just as the legislature and executive are expected to show due regard and deference to
judiciary.
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It is a cardinal principle of construction that the statute and the rule or the regulation must be held to be
constitutionally valid unless and until it is established that they violate any specific provision of the
constitution. Further, it is the duty of the court to harmoniously construe different provisions of any Act or
Rule or regulation, if possible, and to sustain the same rather than strike down the provisions outright.
We can discuss the topic of presumptions of statutes under the following heads :
1.
Statutes are presumed to be valid:
a) Constitutional Meaning to be preferred: There is a presumption in favour of the validity of a statute.
Courts of law have to presume that the particular law is intravires and not ultravires. It is well-settled
that if certain provisions of law construed in one way would make them consistent with the
constitution, and another in perpetration would render them unconstitutional, the court would lean in
favour of the former construction. The construction which leads to unconstitutionality; or a'
construction that results in invalidity rather than validity must be avoided. Where two reasonable
constructions are possible, one which does not infringe fundamental rights, or the one which would
make the law intra vires, or is consistent with constitutionality, or the one which validates the statute
and shortens litigation, or which sustains the validity of the provision of law should be preferred.
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If certain provisions of law construed in one way will be consistent with the Constitution and if
another interpretation would render them unconstitutional, the court would lean in favour of the
former construction, and would construe if necessary to keep it within powers of legislature; in a
more limited sense, the generality of the language of the Act, which, if read literally, will apply to
matters beyond relevant legislative powers.
b) Presumption holds good for all Legislatures: There is always a presumption that a legislature,
be it central or provincial, never intended to exceed its legislative ambit so as to conflict with the
jurisdiction of another legislature. It is a sound principle of construction that Acts of a Sovereign
legislature, and indeed of subordinate legislatures, such as a municipal authority, should, receive
such an interpretation as will make them operative and not inoperative. It would be presumed that
the legislature did not intend to enact anything beyond its competent territorial limits.
c) Presumption for all Manner of Laws: The presumption is not confined to the legislations of the
Union. A state Act should also be construed so as to make it consistent with the constitution. The
rule is equally applicable to by-laws:
d) Statute in Infringement of Fundamental Rights: Where the validity of a statute is impugned on
the ground that its provisions contravene fundamental rights guaranteed by the constitution and two
constructions are possible as to the meaning and intention of the legislature, the court should adopt
that construction which upholds the validity.
In the case of Khyerabari Tea Co. v. State of Assam1 it was held by Justice Gajendragadhkar that
once a citizen shows that the impugned statute invades either his individual fundamental right, or
the right of freedom of trade, the presumption has worked itself out and the onus shifts to the state to
show that the invasion amounts to a restriction or it is in the interest of the general public.
e) Rules when language Ambiguous: Courts must find out the literal meaning of the expression in
the task of construction. In doing so, if the expressions are ambiguous, then the construction that
fulfills the object of the legislation must provide the key to the meaning. However, there is a
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presumption that the legislative does not leave any lacuna. When it is equally possible to take the
view which would be conducive to the conclusion that there is no lacuna in the legislation, it would
be unreasonable to take the view that the legislature has left a lacuna, either by negligence or by
lack of foresight or because it did no know its job. If the language of an enactment is ambiguous, and
on one construction, it would be within the powers of the legislature, the courts will construe
ambiguous expression in such a manner as to maintain the validity of the statute if the language will
reasonably bear such interpretation.
f) Intention of Legislature does not confer validity: The validity of an Act depends on the
legislative competency irrespective of the intention which leads to its enactments. The intention
with which a provision of law is made is, however, not relevant for the purpose of deciding if it is void,
as infringing any provision in Constitution. If it does infringe, then whatever the intention may be, it is
void.
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g) Severability: In determining whether the valid parts of a statute are separable from the invalid
parts, it is the intention of the legislature that is the determining factor. One test is whether the
legislature would have enacted the valid part if it had known that the rest of the statute was invalid.
The second test is that if the valid and invalid parts of a statute are independent and do not form part
of a scheme but what is left after omitting the invalid portion is so thin as to be in substance different
from what it was when it emerged out of the legislature, then also it will be rejected in its entirety.
h) Presumption of Constitutionality Burden on One who Attacks it: The presumption is in favour
of the constitutionality of an enactment and the burden is upon him who attacks to show that there
has been a transgression of constitutional principle. Charnjit al v. UOI (1951 SC 41). The court, it is
accepted, must presume that the legislature understands and correctly appreciates the needs of its
own people, that its laws are directed to problems made manifest by experience and that its
discriminations are based on adequate grounds.
In many cases the Hon'ble Supreme Court allowed affidavits to show the reasons for the enactment
of law, the circumstances, in which it was concerned and the evils it was to cure. The construction
has to be preferred which would make the provisions in an Act introvert the legislature which passed
it.
2.
Statutes are territorial in operation: The ordinary principle of construction is that legislature is
dealing with the subject matter situated within its own territorial jurisdiction. Now, prima facie, the
legislation of a country is territorial. Its acts are intended to apply to matters occurring within its realm
and not beyond it, and this principle applies to Acts that are penal in their character.
Law of a nation applies to all its subjects and to all things and Acts within its territories, including in this
expression not only its ports and waters, but its ships, of its subjects on the. high seas in foreign tidal
waters. They apply also to all foreigners within its territories (not privileged like sovereigns, and
ambassadors) or regards criminal, police and all other matters except some questions of personal
statutes or capacity. The presumption is, that the legislature does not design its statutes to operate on
them beyond the territorial limits of the state.
a) Extra-territorial Jurisdiction of Sovereign Legislatures: Sovereign legislatures have powers of
enacting extraterritorial laws, at least so far as recognition by their own courts is concerned. Ordinarily,
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extra-territorial operation would be making legislation for their benefit only.
India, prior to the coming into force of the constitution, the position was that sub - S.21 0 S. 9,
government of India Act 1935, empowered the federal legislature to make laws for the whole or a y part
of British India and the topics on which it could legislate were specified in lists I and III of.... ch. VII. Sub S
(2) of the Sec. laid down that without prejudice to the generality of the powers inferred by the preceding
sub-sec, no federal law shall, on the ground that it would have extra-territorial operation, be deemed to
be invalid.
The Indian Parliament being a sovereign legislature, CI(2) of Art. 245 of the Constitution lays own that
no law made by Parliament shall be deemed to be invalid on the ground that it would have extraterritorial operation.
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while the Union Parliament has power to make laws for the whole or any part of the territory of dia, the
state legislature can make laws only for the state or any part thereof. The legislative power of the state is
confined under Art. 245(1) to the territory of the state. The state legislatures have no extra territorial
legislative powers.
2
I the case of Bengal Immunity v. State of Bihar, Venkatarama Ayyar J.held that where there as sufficient
territorial connection between the person who is sought to be charged or proceeded against under the
law, and the country which enacts the law, the law is not, strictly speaking, extra-territorial and it is not
ultra-vires on the ground that the person is not residing within the s ate which enacts the law.
I Abdul Kadar v. Union of India it was held that a law passed by the legislature having plenary powers is
not involved on the ground that it has extra territorial operation. In that case, warrants for detention were
issued under COFAPOSA Act after the alleged smugglers had fled the country. When proclamation
under S. 7(1) (a) of the Act read with S. 82(1) Criminal Procedure Code 1973 was issued, the same
were challenged as illegal and ultra-vires.
It was observed: The words 'extra-territorial' are normally used in two different senses, as connoting
firstly, laws in respect of acts, and events which take place inside-the state but have operation outside
and secondly, laws with reference to nationals of a state in respect of their acts outside. In its former
sense, the laws are strictly speaking intra territorial, though loosely termed as extra-territorial under Act.
241 (1). Therefore,. merely because the law passed by the Parliament has extra-territorial
consequences, it cannot be invalidated as set out in - Art. 245(2) of the Constitution.
3.
Statues are Presumed to be in Conformity with International Law: Under the general
presumption that the legislature does not intend to exceed its jurisdiction, every statute is to be so
interpreted and applied, as far as its language admits, as not to be inconsistent with the established
rules of international law. There is indeed a presumption against any intention to frame a statute so as to
contravene a rule of international law.
According to recognized rules of construction of statutes, the legislature is presumed not to enact any
thing contrary to international law or the common law. Unless, therefore, the intention to do so is clearly
expressed in the enactment, the courts would be inclined to favour an interpretation which would bring
the enactment into consonance with those principles rather than accept a grammatical interpretation.
As between two possible constructions, that which is conformable to international law is to be preferred
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to that which would involve infringement of the right of other communities. The judges may not
pronounce an Act ultra vires as contravening international law, but in case of ambiguity, from a
construction which would involve a breach of the ascertained and accepted rules of international law a
sovereign power is always presumed to respect the subject and the rights of all other sovereign powers
outside its territory.
In PUCL v. Union of India4 the Supreme Court was required to interpret S. 3(2)(d) of the Protection of
Human Rights Act 1993 which stipulates that the commission shall consist of two members to be
appointed from amongst persons having 'knowledge of or practical experience in, matters relating to
human rights.
The question before the court was whether a police officer would fall in the category stipulated under
this provision and was the appointment of such a person consistent with the language of the section and
the true intendment of the Act. To this end, the reference was made to the 'Paris Principles' on the
establishment of human rights institutions adopted by the United Nations in 1991. These principles
encouraged human rights institutions to have as little governmental interference as possible.
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In the wake of this reliance, the judges made the following different observations on the applicability of
international norms, as given below:
Sabharwal J. was of the opinion that the 'Paris Principle' must not be derogated from and consequently
the appointment should not be allowed. He observed that international treaties have influenced
interpretation of Indian law in several ways. The Supreme Court has relied upon statutory
Interpretation. Where the terms of any legislation are not clear or are reasonably capable of more than
one meaning, in such cases, the courts have relied upon the meaning which is in consonance with the
treaties, for there is a prima-facie presumption that parliament did not intend to act in breach of
international law, including treaty obligations. In this view, S, 3 (2) (d) of the Act has to be read keeping in
view 'Paris Principles'.
Dharmadhikari J. on the other hand observed that the court needed to take aid of international law and
guidelines in interpreting the domestic law only if it found some gap to be filled in such law or if the
provisions of domestic law were not clear and did not wholly carry the meaning and effect of the
international law which it intends to implement. The 'Paris Principles, he opined, were at best guidelines
to be followed by countries which were parties to the resolutions taken at the international conferences
on human rights. Such acceptance did not create an obligation to incorporate the Principles word by
word in statutory law. In his opinion, the impugned provision of the Human Rights Act was clear and
unambiguous and therefore there was no need to place reliance on principles of international law.
5
The Supreme Court in Umesh Chandra v. State of Rajasthan held that the relevant date for
determining the age of the accused who claims to be a child is the date of occurrence and not the date of
trial.
But in Amrit Das v. State of Bihar6 Supreme Court laid down that the relevant date for the said
purpose would not be the date of occurrence but the date of production of accused before the court.
Since there was a conflict of opinion the matter was referred to the constitution bench.
In the case of Pratap Singh v. State of Jharkhand7 the Constitutional bench ruled that the relevant date is
the date of occurrence of the offence and not the date of production before the court. In arriving at this
conclusion the Hon'ble court took note of the fact that the Juvenile Justice Act 2000 specially refers to
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international law. The relevant provisions of the United Nations Standard Minimum Rules for
Administration of Juvenile Justice 1985 were incorporated therein. Although international treaties,
covenants and conventions may not be a part of our municipal law, insofar as India was a party to the
said treaties the same could be referred to and followed by the courts. The Constitution of India and
other ongoing statutes have been read consistently with the rules of international law to develop new
rights in the context of the constitution. Constitution is a source of, and not an exercise of legislative
power. Ordinarily, the principles of international law are implied into every statutory effort. The instant
case made for a stronger obligation as the legislature explicitly bound itself to the principles of
international law.
In rejecting the state's argument that the relevant date for the determination of age would be the date of
production, the court observed that Act was not just a beneficial legislation, but a remedial one. The Act
aims to grant care, protection and rehabilitation of juvenile vis-a-vis the adult criminals in accordance
with the United Nations Standard Minimum Rules for the Administration of Juvenile Justice.
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On the recent decisions Supreme Court demonstrated that there was a difference of opinion on the
weight to be accorded on the matter of presumption of the statutes in conformity with the international
law.
8
In the case of ADM Jabalpur Vs. S.K. Shukla it was observed by Justice Khanna in his dissenting
judgment that if a statutory provision of India is open to two valid constructions, the court should prefer
the one that may be in harmony with international law.
4.
Legislature does not commit a mistake: It is not competent for the court to proceed on the
assumption that the legislature knows not what it says, or that it has made a mistake.
It may be presumed as a rule that exact and correct words are used in the statute.
There is a sort of assumption that the legislature is an ideal person which does not make mistakes, but
assumption sometimes has its own limitations. -It is too much to expect that legislation was drawn up in
haste to bring about changes in law in a large part of the territory of India in a short time. The legislative
authorities had devoted the same care and attention in drafting such enactments as would have been
necessary and desirable. It would not be proper to construct such emergency legislation with the same
amount of strictness as in construing the statutes which have come out after considerable thought and
attention on the part of the legislature.
Mistakes may creep into legislation due to various circumstances and causes. They may be caused by
the printer making an incorrect reproduction of the drafts of manuscript, or they may be due to the
draftman's unskilfullness. They may also creep into a Bill during its passage through the legislature.
a) Presumption Against Mistake: We cannot assume a mistake in an Act of parliament. If we think
so, we should under many Acts as certain by putting different constructions on them according to an
individual connections. The draftsman of the Act may have made a mistake. If so, the remedy is for
the legislature to amend it.
The legislature is presumed not to have made a mistake even if there is some defect in the language
used by the legislature. It is not for the court to add to or amend the language, or by construction make
up deficiencies which are left in the Act. Even where there is a casus omissus,9 the remedy lies not with
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court, but with the legislature. It is not given to a court of law to construe a section on the footing that the
legislature has committed and error.
10
In an English case of commissioner for Special Purposes of Income Tax v. Pemse Lord Halsbury
opined, "In fact, the language of an Act of Parliament may be founded on some mistake and that words
may be clumsily used, I do not deny. But I do not think it is competent to any count to proceed upon the
assumption that the legislature has made a mistake. Whatever the real fact may be, I think a court of law
is bound to proceed upon the assumption that the legislature is an ideal person that does not make
mistakes. It must be assumed that it had intended what it has said, and I think any other view of the
mode in which one must approach the interpretation of a statute, would give authority for an
interpretation of the language of an Act of parliament which would be attached with the most serious
consequence."
5.
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Legislature does not Waste its Words: The legislature is deemed not to waste its words or to say
anything in vain. It will be presumed that words in statute are used precisely and exactly, not loosely or
inexactly. The presumption is always against superfluity in a statute. An Act should be construed as to
avoid redundancy or surplus age. It is no doubt true that as a general rule legislatures may be presumed
not to make a superfluous provision. But this presumption is not a strong presumption and it is not
uncommon to find the legislature inserting superfluous provision under the influence of what may be
abundant caution. It is well-settled principle of construction that no part of a statute shall be so
construed as to convict the legislature of having engrafted a statutory clause which would be of no
purpose or avail to anyone.
Where the law provides a remedy to a person, the provision has to be so construed in case of ambiguity
as to make the availing of the remedy practical and the exercise of the power conferred on the authority
meaningful and effective. A construction which would render the provision negatory ought to be
avoided. Thus, when the court was required to pronounce upon commencement of limitation period for
filing a review petition under the Advocates Act 1961, it held that the expression 'the date of that order'
as occurring in S. 48-AA of the Act has to be construed as meaning the date of communication or
knowledge of the order to the review petitioner (D. Saibaba v. V. Bar Council of India (2003) 6 SCC 186,
Para 9).
Every part of a statute should be given as far as possible its full meaning and effect and no word or
clause should ordinarily be rejected as superfluous. An interpretation which makes a provision of law
completely nugatory cannot be correct. Effect should be given to every part of the section in an
enactment. It should not be assumed that the legislature used language without any purpose. Thus, the
clear language of S. 27 of the Indian Evidence Act, 1872 clearly indicates that statement in order to fall
under the section must contain all the qualifications laid down therein. When the person giving the
information leading to the discovery of certain facts relating to crime under investigation does not
happen to be an accused at the time he offers the said information, his statement cannot be used as
evidence as it does not come within the meaning of S. 27.
As far as possible, full meaning must be given to every word of a statute. No word should be regarded as
superfluous unless it is not possible to give a proper interpretation to the enactment, or the meaning
given is absurd or inequitable. No word is superfluous, redundant or surplus. A construction which
makes a provision superfluous must be avoided. A construction that makes any provision of a statute a
'dead letter' must be rejected. In using words or expressions, the legislature must always be presumed
not to be redundant. Law should be interpreted so as not to make any word redundant, if it is possible to
interpret it so as to utilise the meanings of all words used in the legislation. The cardinal rule of
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interpretation is that every section of the code is to be given a proper interpretation. It is not permissible
in interpreting a statute to omit words as redundant unless reading them in the statute would lead to
absurdity. The court cannot supply a clear and obvious lacuna in a statute, but it is incumbent on it to
avoid a construction which would render a part of the statute devoid of any meaning or application. The
rule of harmonious construction requires that no provision of the Act should be rendered totally
ineffective as a result of interpretation.
In one case of National Insurance Co. Ltd. v. Swaran Singh11 Supreme Court observed that it is now
well-settled principle of law that rules validly framed become part of the statute. Such rules are,
therefore, required to be read as a part of the main enactment. An attempt must be made to give effect to
all the provisions under a rule for the interpretation of a statute. No provision should be considered as
surplus age.
6.
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Words Interpreted in ordinary sense unless Technical: The first and most elementary rule of
construction is that it is to be assumed that words and phrases of technical legislation are used in their
technical meaning if they have acquired one, and otherwise in their ordinary meaning.
It is to be presumed that the legislature has used the words in their known and ordinary signification,
particularly when they are themselves precise and unambiguous.
a) Plain and Natural Meaning not Interchangeable with Popular Meaning: The rule is that words
used by the legislature should be given their plain and natural meaning. By plain and natural
meaning is meant the literal and popular as opposed to a figurative or technical meaning.
In one case Kerala High Court said that the expression 'water cooler' and 'refrigerator' are popular
words well understood as meaning different things. They should not be interpreted according to any
technical or scientific meaning.
But in one case of Kanwar Singh v. Delhi Municipality12 Supreme Court said that the rule does not
imply that the court is not entitled to depart from the ordinary meaning of words under all
circumstances. The court may depart from the ordinary meaning of words under all circumstances.
The court may depart from the ordinary dictionary meaning in some situations, and give it a
meaning which will advance the remedy and suppress the mischief according to the true intention of
the statute.
b) Ordinary Meaning subject to context and other factors: A word which is not defined, but which is
a word of every day, use must be construed in its popular sense. In Puma Ayurvedic Herbal (P) Ltd.
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v. CCE Nagpur the point of dispute was whether the products made by the appellant, a
manufacture of ayurvedic products, should be categorized as medicament or cosmetics.
Differentiating between a cosmetic and a medicament the court ruled that cosmetic products are
meant to enhance beauty whereas a medicinal product or medicament is meant to treat some
medical condition. It may happen that while treating a particular medical problem, after the problem
is cured the appearance of the person concern may improve. However, what is to be seen is the
primary use of the product, the extent or quantity of medicament used in a particular product is also
not a relevant factor. The fact that use of medicinal element in a product was minimal does not
detract from its being classified as a medicament.
The rule is not a law but a subsidiary rule of construction which may often be usefully applied in
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considering the intention of the legislature. However, it is the duty of the court not to confine itself to
the mere verbal or literary effect of the provisions, as if applied to an abstract subject.
c) Technical Words have Technical Meaning: In ascertaining the meaning of an expression used in
a statute, certain norms are adopted. If the legislature has used an expression as used ordinarily in
the context of a particular branch of law, it must be assumed that because of its constant use the
legislature must be deemed to have used such expression in a particular sense as it is understood
when used in a similar context.. If an expression has acquired a special connotation in law,
dictionary or general meaning ceases to be helpful in interpreting such a word. Such an expression
must be given its legal sense and no other. Where a word used by the legislature has a fixed
technical meaning, it is to be taken in that sense, unless the context or other evidence of meaning
indicates a contrary legislative intent. The technical words and phrases of the law are presumed to
have been used in their proper technical signification when used in statutes, unless it plainly
appears that a different meaning was intended by the legislature. The first and most elementary
principle is that it is to be assumed that the words and phrases of technical legislation are used in
their technical meaning, if they have acquired one, and otherwise in their ordinary meaning.
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The general rule with respect to terms used in trade or commerce, is that in the absence of evidence
of a contrary legislative intent, words of commerce or trade, when used in a statute relating to those
subjects, are presumed to have been used by the legislafure in their trade or commercial meaning.
14
In the case of Delhi cloth Mills v. State of Rajasthan it was held that words and expression, in. a
sales tax law should be construed as understood in the trade by the dealer and the consumer. The
sense in which they understand them is the 'definitive index of the legislative intention'.
Particular words used by the legislature in the denomination of articles should be understood
according to the common commercial understanding of the term used, and not in their scientific or
technical sense for the legislature does not suppose our merchants to be naturalists, or geologists
or botanists.
In another case, the question as to whether salted peanuts and cashew nuts fell within the category
of 'fruits' or 'vegetable' for the purpose of the Excise Act, came up for consideration, and the
question was answered in the negative in spite of the evidence of botanists that both peanuts and
cashew nuts are vegetables in the wider meaning of that. word, that each is a 'fruit' and that neither
is a 'nut'. On these principles, it has been held that under the Travancore General Sales Tax Act
1924, horticultural produce grown by the owner in the circumstances specified is exempt from tax,
but tea, though an agricultural produce grown by the owner in the circumstances specified, shall not
have the benefit of that exemption. Tea' in the context in which it occurs cannot but mean the leaf
gathered from the tea bush, whether it has or has not been subjected to the processes which
prepare it for the market, and hence, the green leaves just like processed leaves are liable to sales
tax. 'Cooked food' in the context does not include 'biscuits', for purposes of taxation under the Uttar
Pradesh Sales Tax Act 1948, and hence not liable for lower rates of sales tax.
7.
Legislature presumed to know the Rules and Grammar: Crawford in statutory construction,
says since one may assume that15 the legislature knew and understood the rules of grammar, such
rules should be considered by the court in their efforts to ascertain the meaning of a statutory enactment
on the theory that they will reveal or tend to reveal the correct sense or meaning thereof.
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8.
Legislature Presumed to know the law, Judicial Decisions and General Principles of Law :
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According to Sutherland , the legislative language will be interpreted on the assumption that the
legislature was aware of existing statutes, the rules of statutory construction, and the judicial decisions
and that if a change occurs in legislative language a change was intended in legislative result. It is wellsettled rule of construction that when a statute is repealed and re-enacted, and words in the repealed
statute are reproduced in the new statute, they should be interpreted in the sense which had been
judicially put on them in the repealed Act, because the legislature is presumed to be acquainted with the
construction which the courts have put upon the words, and when they repeat the same words, they
must be taken to have accepted the interpretation put on them by the court as correctly reflecting the
legislative mind.
In Ahmedabad Private Primary Teachers Association v. Administrative Officer17 the question
before the court was whether teachers would fall within the category of 'employees' as defined in the
Payment of Gratuity Act, 1972. The court observed that by virtue of the doctrine of Pari Materia,
reference to other statutes dealing with the same subject or forming part of the same system is a
permissible aid to the construction of provisions in a statute. The court referred to the definition of
'employee' in a number of labour legislations, in order to determine whether teachers came within the
meaning of 'employee' as defined under the payment of Gratuity Act 1972 and decided in negative.
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The court observed that the legislature was aware of the various definitions of 'employee' under other
labour legislations, and in particular, as enumerated in the Employees Provident Fund Act 1952. Being
so aware, the legislature would have defined 'employee' in a wider sense, as done in the EPF Act, if it
intended to include teachers within the definition. The legislature is presumed to know the law.
9.
Presumption subject to anything showing a contrary intention: If the legislature uses forms of
words which have received judicial construction, the presumption is that the parliament in subsequent
statutes did so use them unless there is any thing in the Acts showing that the legislature did not mean to
use the words in the sense attributed to them by the courts.
The presumption in such cases is that the legislature did not intend to depart from the meaning given by
the court.
Thus, the legislature knowing fully well the judicial interpretation put on the word 'discharge' occurring in
S. 437 of the old Cr. PC 1908, has also in the new Cr. PC 1973, used the word 'discharge' in S. 398. This
word should, therefore be interpreted in the sense which has been judicially put under the old repealed
code.
10.
Legislature is Fair: Where there are two constructions, the one of which will do great and
unnecessary injustice, and the other which will avoid that injustice, and will keep exactly within the
purpose for which the statute was passed, it is the bounden duty of the court to adopt the second and
not adopt the first of those constructions.
In Maikoo Lalv. Santoo, full Bench of the Allahabad High Court agreed with the principle of Maxwell: In
determining either the general object of the legislature, or the meaning of its language in any particular
passage, it is obvious that the intention which appears to be most in accord with convenience, reason,
justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one.
The underlying purpose of all legislation is to promote justice among men. The object and effect of the
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statute should be primary concern in the interpretation of statutes. The court should avoid a
construction which will render the statute unjust and oppressive or unreasonable or contrary to public
interest.
A construction which permits one to take advantage of one's own wrong or to impair one's obligations
under a current statute should be discarded.
The construction of the provision should be as far as possible beneficial, to suppress the mischief and
advance the remedy, if this can be done without violence to the language of the section.
A construction which would make the statute effective and productive of the most good of the people
should be accepted. A construction that produces an effect at variance with commonly recognized
concept of what is just, right and ethical should be avoided. Moreover, in a fast changing society, the law
has to be liberal and flexible to serve the modern concept of social purpose.
11.
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Vested Rights are Preserved Top of Form
a. Vested rights are not presumed to be abrogated ': There is a presumption against the taking away of
a vested right by any fresh legislation, and a construction which involves the taking away of vested
rights ought not to be adopted if the words of the enactment are open to any other construction.
b. No Retrospective Operation: No rule of construction is more firmly established than this that a
retrospective operation is not to be given to a statute so as to impair an existing right or obligation
otherwise than as regards matter of procedure, unless the effect cannot be avoided without doing
violence to the language of the enactment. If the enactment is expressed in language which is fairly
capable of either interpretation, it ought to be construed as prospective only.
A law is said to be not retrospective when right or liability arising out of jural relation constituted
before the new law came into force or created by a jural fact or even taking place before the new law,
or any relief or remedy in respect of that right or liability remains unaffected by the new law.
Where vested right are concerned, an amendment has no retrospective effect unless it is so stated
expressly in the Act. The repealing enactment cannot be given retrospective operation so as to
impose an impossible condition of forfeiture of a vested right.
c. What are Vested Rights: Every statute which prima-facie takes away or impairs vested rights
acquired under existing law or creates new obligations, or imposes a new duty, or attaches a new
disability in respect of transactions or considerations already past, must be presumed to be
intended not to have a retrospective operation.
The presumption applied not only to a substantive right but also to a right of suit, and a right of
appeal, both of which are vested rights.
12.
Jurisdiction of Court: Jurisdiction may be defined as a power of a court to hear and determine a
cause, to adjudicate and exercise any judicial power in relation to it. In other words, by Jurisdiction is
meant the authority by which a court has to decide matters that are litigated before it or to take
cognizance of matters prescribed in a formal way for its decision. In short Jurisdiction means the power
to hear and determine issue of law and fact; the authority by which the judicial officers take cognizance
of and decide causes; the authority to hear and decide a legal controversy; the power to hear and
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determine the subject-matter in controversy between parties to a suit and to adjudicate or exercise any
judicial power over them; the power to hear, determine and pronounce judgment on the issues before
the court; the power or authority which is conferred upon a court by the legislature to hear and
determine causes between parties and to carry the judgments into effects. The power to inquire into the
facts, to apply the law to pronounce the judgment and to carry it into execution.
The jurisdiction of the court may be qualified or restricted by a variety of circumstances. Thus, the
jurisdiction may have to be considered with reference to place, value and nature of the subject matter.
a.
Jurisdiction Conferred and Taken Away Only by law : It is only by virtue of statutes that
jurisdiction is conferred on courts, or taken away from them. In the absence of clear provisions,
the ordinary rule of interpretation that a statute does not create new jurisdiction or enlarge
existing ones, applies. It cannot be impliedly affected by a statute which has nothing to do with
jurisdiction.
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b.
Exclusion of jurisdiction must be in express terms or by use of such terms as must lead to
interence of such exclusion. Court will not favour an interpretation which has the effect of taking
away the jurisdiction of the competent authority, unless the same is expressly provided for in
law.
c.
Consent cannot give Jurisdiction: The parties can, by mutual consent no more take away
a jurisdiction vested by law in any court than they can confer on it when it is not so vested by law
When a judge has no inherent jurisdiction over the subject matter of a suit the parties cannot
confer jurisdiction on him by mutual consent.
d.
Statutory Jurisdiction to be Exercised Subject to Specified Limitations: Where the
jurisdiction of a court in certain matters is statutory, the court, however admirable its intentions,
is not entitled to go outside those provisions, and in effect to legislate for itself. A statute
conferring jurisdiction under certain particular conditions cannot be taken to confer jurisdiction
also in cases which do not fall within the ambit of the conditions laid down merely on the basis of
analogy. But where an Act confers jurisdiction on a tribunal, it must be taken to have impliedly
granted the power of doing all such acts or employing such means as are essentially necessary
to its exercise or execution.
e.
Jurisdiction of Superior Courts: The exercise of jurisdiction by the Supreme Court in
India, is dependent upon and governed by the specific provisions of the constitution. It cannot
claim to exercise a jurisdiction not vested in it under the provisions of the constitution.
f.
No implied authority to deprive Superior Courts of their Jurisdiction: It is a well known
rule of interpretation of provisions barring the jurisdiction of civil courts that they must be strictly
construed for the exclusion of the jurisdiction of a civil court and least of all the Supreme Court,
and it is not to be lightly inferred. This is not to be presumed without express words an authority
to deprive the Supreme Court of a jurisdiction which it had previously exercised or to extend the
privative jurisdiction of the Supreme Court to the inferior courts. The general presumption is
against construing a statute as ousting or restricting the jurisdiction of the Superior Court.
g.
Jurisdiction of Civil Courts: Sec. 9, Civil procedure Code 1908, lays down that the courts
shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is
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either expressly or impliedly barred. One general rule of law is that when a legal right and an
infringement thereof are alleged, a course of action is disclosed and unless there is a bar to the
entertainment of a suit, the ordinary civil courts are bound to entertain the claim. Sec. 9 CPC
lays down a general rule in favour of the jurisdiction of the civil court and the burden of proof is on
the party who pleads an exception to the general rule. The exclusion of the jurisdiction of civil
courts is not to be readily inferred, but such exclusion must either be explicitly expressed or
clearly implied. Interpretation in favour of the jurisdiction of a civil court should be preferred to
the one for its absence.
COMMENCEMENT, OPERATION OF STATUTES
Parliament is the maker of law. The birth of a law, its life span and the date on which it would come to an end
is determined by the legislature alone.
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Commencement of Statute: Commencement means coming into .operation of the statute on the day on
which the Actor statute comes into force. Sec. 3 (13) of the General clause Act, 1897 defines
commencement. It says 'commencement' used with reference to an Act or Regulation, shall mean the day
on which the Act or Regulation comes into force. The legislature may expressly appoint a particular future
date on which a law shall come into force.
In that case the date of its enactment or date of its receiving Presidential assent is irrelevant. The law shall
come into force from immediately after zero hours on the particular date on which its coming into force is
expressly intended. For example, the code of Criminal Procedure received the assent of the President of
India on 25.1.1974 but it is categorically provided in section 1 (3) that it shall come into force on the first day
of April 1974. As such, the code came in force with effect from 1.4.1974 only. However, where no such day
of operating of a statute is appointed, the law comes into force from the date on which President of India
accorded his assent to it. Sec. 5 of General Clauses Act, 1897 provides (1) where any Central Act is not
expressed to come into operation on a particular day, then it shall come into operation on the day on which it
receives assent - (a) in case of a Central Act ma e before e commencement of the constitution, of the
Governor-General and (b) in case of an Act of Parliament, of the President (2) Unless contrary is
expressed, a Central Act or regulation shall be construed as coming into operation immediately on the
expiration of the day preceding its commencement.
It is quite often that the Commencement of an Act is postponed to some specified future date or to such date
as the appropriate Government may, by notification in the Official Gazette, appoint. Provision is also at
times made for appointment of different dates for coming into force of different parts of the same Act.
An Act cannot be said to commence or to be in force unless it is brought into operation by legislative
enactment or by the exercise of authority by a delegate empowered to bring it into operation (state of Orissa
v. Chandra Shekhar Singh, AIR 1970 SC 398). When enforcement of a statute or a provision therein is left to
the discretion of the Government without laying down any objective standards, no writ of mandamus can be
issued to the Government to enforce the statute or the provision. (AX. Roy v. Union of India, AIR 1982 SC
710) But if considerable time has elapsed since passing of the statute a writ can be issued directing the
Government to consider the question whether the statute or the provision should be brought into force.
(Altmesh Rein v. Union of India, AIR 1988 SC 1768).
In Hariya v. State of Rajasthan (AIR 1988 SC 1768) the Supreme Court observed that in the absence of
specified date mentioned by the statute of its commencement, it will come into force from the day of assent
of the President of India or Governor of the State is received.
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On the basis of life we can classify statutes into two parts:
1)
Temporary statutes,
2)
Perpetual statutes;
1)
Temporary Statutes: The statute for which life period is fixed, is called "Temporary statute". Life
period means the period for which statute shall be in force. Temporary statute has its duration for
specified time and it expires on the lapse of that specified time. The legislature may extend the duration
of a temporary statute. Legislature is also empowered to obliterate a temporary statute prior to
completion of its life. If the temporary statute is not so obliterated, it comes to an end automatically upon
completion of its term. This is called "expiry of temporary statute". After expiry, the law no more survives.
It loses its effect and operation. It does not have any force.
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However, some statutes contain some special provision on the contrary. According to those provisions,
the statute continues to have effect even after its expiry. For example, sub-section (3) of Sec. 1 of the
Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA) provides otherwise.
This subsection reads "it shall come into force on such date as the Central Govt. may by notification in
Official Gazette, appoint and shall remain in force for a period of two years from the date of its
commencement but its expiry under the operation of this sub-section shall not affect:
a) The previous operation of or anything duly done or suffered under this Act or any rule made
thereunder or any order made under any such rule, or
b) Any right, privilege, obligation or liability acquired, accrued or incurred under this Act or any rule
made thereunder or any order made under any such rule, or
c) Any penalty, forfeiture or punishment incurred in respect of any offence under this Act or any
contravention of any rule made under this Act or of any order made under any such rule, or
d) Any investigation, legal proceeding or remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or punishment as aforesaid,
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced
and any such penalty, forfeiture, or punishment may be impo.sed as if this Act had not expired.
The expiry of temporary statute takes place automatically. No legal procedure is required to be
observed. The date of expiry of a temporary statute is, in fact, known since the date of its enactment.
The Legislature is also competent to further increase the life span of a temporary statute by
enacting a fresh statute or by exercise of powers conferred under original statute.
Effect of Expiry of Temporary Statutes: When a statute expires by efflux of time, the following are its
effects:
1) As to effect and operation of the statute: After expiry, the law comes to an end and no more
remains in force. It becomes inoperative and loses its effect.
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2) As to institution of fresh proceeding under the Act: As a general rule, after expiry of a temporary Act,
no proceedings can be taken upon it unless contrary is provided in the statute itself. A person cannot
be prosecuted and convicted for an offence against the Act after its expiration in absence of saving
provision. If life of temporary Act expires, consequences of the same also get extinguished with the
date of expiry.
3) As to pending proceedings: If prosecution has not ended before the date of expiry of the Act and
the legal proceedings remain pending under expired statute, such proceedings cannot be
continued against a person since they terminate as soon as statute expires. The proceedings will
automatically terminate as a result of termination of Act. However, where saving clause is provided
in the statute, there will be no effect of expiry of statute on the proceedings pending under it.
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4) As to Notification, Orders, Rules and Regulations made under the statute: When a temporary
Act completes its contemplated life and expires by efflux of time, any appointment, notification,
order, scheme, form, bye law, rule made or issued under that Act also comes to an end.
5) Expiry does not make statute dead for all purposes: Even if there is no saving clause in the
temporary statute, it does not become a dead letter after its expiry for all purposes. Where a person
has violated the provisions of a temporary Act for which he has been prosecuted and sentenced
during the continuance of that temporary statute, such person cannot be released prior to suffering
full term of sentence just because the statute has expired during the span of his sentence.
To explain it further, take for example that a person has committed an offence under a temporary
statute. He has been prosecuted, convicted and sentenced to imprisonment for a term of two years.
One year after the commencement of his sentence, the temporary statute under which he was
punished, expires. Can such person be released before suffering the full term? The answer is "No".
Perpetual Statutes: The meaning of the term "Perpetual" is continuing or enduring forever. Therefore,
“Perpetual” statutes are those which remain operative forever. They have no fixed life time. Since the ration
of a statute, if any, is specified in the statute itself, it can be said that the statutes which do not provide for
their life period, are perpetual. Unlike temporary statutes, there is no pre-decided date of termination of
perpetual statutes. They do not come to an end automatically due to efflux of time. They do not lapse after a
certain period. There is no expiry of these 9tatutes. They survive indefinitely. They come to an end only
when they are abolished by legislature itself by way of enacting another statute he process of abrogation of
perpetual statute is called "repeal".
REPEAL OF STATUTES
Right to Repeal - Power of a legislative body to r9peal a law is co-extensive with its power to enact such a
law. Just as the legislature has the power to enact laws, similarly it has the power to repeal them nobody has
a vested right in a statute. An Act may be very beneficial to a particular person, or its repeal ay affect him
injuriously yet the right of the legislature to abrogate an Act by repealing it is absolute. No statute can make
itself secure against repeal. There is nothing to prevent any parliament from enacting at a particular statute
shall never in any circumstances be altered or abrogated, and at certain troubled periods of history this
seems to have been the intention of the legislators.
The main object of repealing and amending Acts is only to strike out the unnecessary Acts and excise dead
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matter from the statute book in order to lighten the burden of ever increasing spate of legislation and to
remove confusion from the public mind.
If there is a repugnancy between the two pieces of legislation, to such an extent that both cannot stand
together and operate simultaneously, the latter will have the effect of impliedly repealing the former.
a.
Express Repeal: Express repeal of a statute is usually made by stating that the earlier statute or a
particular provision therein is thereby repealed. Usually enactments repealed are mentioned in a
schedule attached to the repealing statute.
Sometimes the expression used in the later statute for such purpose or repealing of statute runs: 'all
provisions inconsistent with the Act are repealed', or 'all Acts and parts of Act in conflict with the
provisions of this Act are hereby repealed', or 'all laws and parts of law in conflict herewith are expressly
repealed. Provisions of this character leave the question open as to what laws are inconsistent and are
intended to be so repealed.
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In a case of repeal by implication, the question arises regarding the extent and scope of the repeal. If the
repealing clause is by its terms confined to a particular Act, quoted by title, it will not be extended to an
act upon a different subject. And a general Act repealing all Acts inconsistent therewith will usually apply
to general Acts and not to special or local laws. The reason behind this rule is that the special Act is not
repealed because it is not named, or because there is no absolute inconsistency between the general
Act and the special act. Consequently, if the repealing Act was named the special or if the two were
irreconcilably inconsistent, the special Act would also be terminated.
If the subordinate legislation is to survive the repeal of its parent statute, the repealing statute must say
so in so many words and by mentioning the title of the subordinate legislation.
b.
Implied Repeal: Where there is direct reference in the repealing clause to a particular Act, it is a
case of express repeal. But where there is no direct reference, the matter will have to be determined by
taking into account the exact meaning and scope of the general words contained in the repealing clause
and the principles of law which govern the interpretation of the same. It is well settled that implied repeal
is not readily inferred and the mere provision of an additional remedy by a new Act does not take away
an existing remedy.
There is a presumption against a repeal by implication. The reason for the presumption is that the
legislature while enacting a law has a complete knowledge of the existing laws on the subject matter
and therefore, when it does not provide a repealing provision, it gives out an intention not to repeal the
existing legislation. The burden to show that there has been a repeal by implication lies on the party
asserting it. If by any fair interpretation both the statutes can stand together, there will be no implied
repeal. If possible implied repeal shall be avoided. One of the important tests to determine the issue of
implied repeal would be whether the two provisions are so irreconcilably inconsistent that they cannot
stand together or the intention of legislature was only to supplement the provisions of the earlier Act.
This intention is to be ascertained from the provisions of the latter Act.
An implied repeal of an earlier law can be inferred only where there is the enactment of a later law which
had the power to override the earlier law and is totally inconsistent with the earlier law that is where the
two laws - the earlier law and the later law - cannot stand together. This is a logical necessity because
the two inconsistent laws cannot both be valid without contravening the principle of contradiction. The
later law abrogate earlier contrary laws. This principle is however subject to the condition that the later
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law must be effective. If the later law is not capable of taking the place of the earlier law, and for some
reason cannot be implemented, the earlier law would continue to operate. To such a case, the rule of
implied repeal may result in a vacuum which the law-making authority may not have intended.
A repeal by implication is only effected when the provisions for a later enactment are so inconsistent
with or repugnant to the provisions of an earlier one that the two cannot stand together. When an
affirmative statute contains no expression of a purpose to repeal a prior law, it does not repeal it unless
the two acts are in irreconcilable conflict or unless the later statute covers the whole ground occupied by
the earlier and is clearly intended as a substitute for it and the intention of the legislature to repeal must
be clear and manifest.
Therefore, no repeal can be implied unless the two acts cannot stand together. But where there are
orders under two different Acts each inconsistent with the other and each Act providing that any order
made thereunder shall have effect notwithstanding anything inconsistent therewith in any other
enactment or instrument having effect by virtue of any other enactment, the doctrine of repeal by
repugnancy does not apply and both orders remain in force in spite of their repugnancy. It is a maxim of
law that implied repeals are not to be favored, and where two statutes are entirely affirmatively and
identical, no question of inconsistency could arise where the operative terms of two enactments are
identical and the enactments, so to speak, seem parallel to implied repeal and that would be particularly
in case where the earlier enactment is one of temporary duration while the later is a permanent
enactment.
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Implied repeal is a question of fact. No vested rights exist in a citizen to as 0 a a statutory provision has
been impliedly repealed.18
Where there is a 'clear and direct' inconsistency between two Acts and it is 'absolutely irreconcilable'
bringing the two Act into 'direct collision', then only one of these may be regarded as impliedly . repealed
by the other.
Repeal by implication is never to be favored, it is no doubt the necessary consequence of inconsistent
legislature unless absolutely necessary.
An enactment or a rule having the force of law cannot be held to be repealed by implication by a later
enactment or statutory rules unless the provisions of the earlier enactment or rule are plainly repugnant
to those of the subsequent enactment or rule and the entire subject matter of the first is taken away by
the second.
Law does not favour repeal by implication and it is only in the last resort that courts hold that one
enactment is repealed by another even without express words.
In the above said circumstances we may conclude that a statute is repealed by implication in the
following cases, namely:
i)
If its provisions are plainly repugnant to the subsequent statute.
ii)
If the two standing together would lead to wholly absurd consequences.
iii)
If the entire subject matter of the first is taken away by the second.
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Test of Implied Repeal: The test as to whether there has been a repeal by implication by subsequent
legislation is this: are the provisions of a later Act so inconsistent with or repugnant to the provisions of an
earlier Act that the two cannot stand together.
In the case of Ishwar Chandra Chitalangial v. State (81 CWN 690) lordships of Calcutta High Court laid
down the following three tests:
a. Where there is a direct conflict between the two provisions.
b. Where parliament intended to lay down an exhaustive code in respect of the subject matter
replacing the Act of the state legislature.
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c. Whether the law made by parliament, and the law made by state legislature occupy the
same field.
Where Right and Procedure Both Affected: If the rights and procedure are both altered by an amending
or repealing statute, then if the rights occurred under the previous enactment are saved, it would seem to be
consequential that the old procedure is saved as well unless the new Act makes the new procedure
applicable to old right.
Repeal of By Laws: If the statute under which by laws are made is repealed, those by laws are impliedly
repealed and cease to have any validity unless the repealing statute contains some provision preserving
the validity of the by law notwithstanding the repeal. When an Act of Parliament is repealed it must be
considered as if it had never existed.
Implied Repeal of a notification by Amending Act: Notification issued by the delegated authority in
exercise of the power conferred under the statute stands impliedly repealed or rendered is effective when
ever the legislature intervenes and amends the Act relating to the same subject by making an amendment
in the main Act.
Effect of Amendment: The Principle that parties are governed by law in force at the date when a suit is
instituted and any subsequent amendment or alteration of the law cannot affect pending proceedings, must
always be read subject to the corollary that a legislature could always expressly provide the pending
proceedings be affected by an amendment of the law.
Though sometimes distinction is made between 'repeal' and an 'amendment' in essence there is no real
distinction. Amendment is, in fact, a wider term and it includes abrogation or deletion of a provision in an
existing statute. If the amendment of the existing law is small, the Act professes to amend; if it is extensive, it
repeals the law and re-enacts it.
Amendment is, in fact, a wider term and it includes abrogation or deletion of a provision in an existing
statute. If the amendment of an existing law is small, the Act professes to amend, if it is extensive, it repeals
a law and re-enacts it. An amendment of substantive law is not retrospective unless expressly laid down or
by necessary implication inferred.
Repeal and Void Act: There is difference between a repealed Act and void Act. An Act is repealed by
legislation while an Act or its provisions are declared void by judicial expression or declaration.
Effect of Repeal: Section 6 of the General Clause Act, 1897, lays down the effect of repeal of an enactment
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as under:
"Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any
enactment unless a different intention appears, the repeal shall not :
a)
b)
Revive anything not in force or existing at the time at which the repeal takes effect, or
Affect the previous operation of any enactment so repealed or anything duly done or suffered
thereunder, or
c)
Affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment
so repealed; or
d)
Affect any penalty, forfeiture or punishment incurred in respect of an offence committed against any
enactment so repealed, or
e)
Affect any investigation, legal proceeding or remedy in respect of any such right, privilege,
obligation, penalty, forfeiture or punishment as aforesaid and any such investigation, legal
proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or
punishment may be imposed as if the repealing Act or regulation had not been passed.
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Whenever there is repeal of an enactment, the consequences laid down in Sec. 6 of the General Clauses
Act will follow unless as the section itself says a different intention appears.
Doctrine of Desuetude: Desuetude is a process by which an Act of Parliament may lose its force without
express repeal. The Supreme Court has held in the Case of Municipal Corporation for the City of Pune and
Another v. Bharat Forge Co. Ltd. and others (JT 1995 (3) SC 312) that there was no objection in principle to
apply the doctrine to Indian statutes as well. It would advance the cause of justice to accept this doctrine.
Persons in free India must be protected from being prosecuted and punished for violation of the law which
has become dead.
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Repugnancy and Repeal: A subsequent statute may expressly repeal the inconsistent provisions of an
earlier Act. Where, however, the later Act does not expressly contain words to that effect but the two sets of
provisions contained in the two enactments are destructive of each other, the provisions in the later Act shall
prevail and the court would treat the earlier provisions as repealed by implication. The law does not favour
repeal by implication and the courts construe the provisions of the Act strictly in this respect. The cardinal
principle is that the enacting and saving clause and the proviso should be construed together so as to find
out the real intention of the Legislature. However, if the provisions of the two enactments are repugnant to
each other, the rule is that the last must prevail. The earlier Act stands impliedly repealed by the later. As
already stated, the courts are averse to declaring an earlier provision in the Act as impliedly repealed unless
the two Acts are so patently repugnant to each other that effect cannot be given to both at the same time. A
statute should be so construed, wherever possible, as to avoid repugnancy or conflict with other statute.
Kinds of Repeal
a)
The legislature may enact a distinct repealing enactment to declare that an earlier Act has been
abolished. It is called "Express Repeal".
b)
Implied Repeal: The legislature may enact an enactment which is so inconsistent with the earlier
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Act that no harmony between the two is possible or it covers the entire subject matter of the earlier
statute. This is called "Implied Repeal", of the earlier Act.
Essentials of Express Repeal: The essential ingredients of an express repeal are mentioned below:
a)
There must be a subsequent repealing Act.
b)
Such subsequent Act must seek to repeal an earlier Act.
c)
Specific words must be used in the subsequent repealing Act, showing clear intendment to effect
repeal of an earlier Act.
d)
Usually anyone of the following forms are employed to intend the express repeal -
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“……..is hereby repealed"
“……..shall cease to have effect"
“……..shall be inoperative"
“……..shall be invalid"
““……..all provisions inconsistent with this Act are hereby repealed".
Meaning of Operation of Statute: Normally, a Central Law comes into force from the date, on which receives president's assent. Similarly a State Law comes into force on the date on which the Governor
records his assent. The Parliament in respect of Central Law and the State Legislature in respect of the Law
may appoint a future date from which effectuation of the law is intended.
Such a date is expressly mentioned in the Act itself. Giving effect to an enactment is called "operation of
statute" and the day from which the statute becomes operative is called "commencement of statute". Thus,
where specific date is provided in the statute itself, it commences from that date. But in the absence of any
such date, a law commences from the date of receiving assent of President or Governor, as the case may
be. If a Central Act receives President's assent on 26-03-2005, it comes into operation on the midnight
between 25th and 26th March' 2005. The law sets into motion only after the date of its commencement.
Prior to this date, the law has no force.
Prospective Operation: "Prospective" means "in future". Therefore "prospective operation" means the
operation from a future date. A Central law passed by Parliament commences either from the date it
receives Presidential assent or from a future date as specified in the statute. In both cases the law applies
only to those proceedings which have been instituted after its commencement. Prior to commencement, a
law has no force, As such, a person doing an act prior to commencement of the law which declares that act
as offence cannot be prosecuted for the same. But if after commencement of that law, a person commits
same act, he shall be an offender and shall have to suffer with punishment. To explain it further, take for
example that act 'has been declared as punishable offence under the statute 'B'. The statute 'B' is brought
into, operation from date 'X'. Prior to date 'X', a person doing act 'A' cannot be held liable but if the same Act
'A' is committed after date 'X', it would attract penal consequences. Similarly, where the punishment for an
offence has been enhanced by a later law, a person already suffering with punishment for that offence
under a previous law cannot be directed to undergo the enhanced term as per subsequent law. In the same
manner, a law shall have no application in case of the proceedings which are pending before the court as on
the date on which it has been brought into operation.
In Keshavan v. State of Bombay, (AIR 1951 SC128) it was held that it is a cardinal principle of construction
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that every statute is prima facie prospective unless expressly or by necessary implication made
retrospective.
Retrospective Operation: "Retrospective" means "from past date", Therefore "retrospective operation"
means the operation from a past date. Generally every enactment is operated from a future date. But the
legislature is competent to give effect to a law from back date that is, retrospectively. The result of
retrospective operation is that the retrospective law is legitimately applied to pending proceeding also.
If the legislature intends to give retrospective effect to an enactment, such intendment has to be expressly
declared. In the absence of such declaration, the law is deemed to be prospective.
In the case of Zile Singh v. State of Haryana [(2004) 8 SCC 1], it was observed that it is cardinal principle of
construction that every statute is prima facie prospective unless it is expressly or by necessary implication
made to have retrospective operation. But the rule in general is applicable where the object of the statute is
to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in
the statute sufficient to show the intention of legislature to affect existing rights, it is deemed to be
prospective only.
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Where the legislature intends to enact a retrospective law, it should express the same in unequivocal terms.
If no such declaration is made in the statute, the law shall be presumed to be prospective in operation. A law
is not deemed to be retrospectively operated unless clearly provided.
Operation of various kinds of Statutes: A law which impairs the vested rights, creates new obligations,
imposes new duty or attaches new disability is presumed not to have retrospective operation. If Legislature
intends to give retrospective effect to any such statute, the intention thereof must be declared in clear and
specific terms. The retrospective operation of various kinds of law is discussed below:
a.
Statutes providing substantive rights presumed to be prospective: The statutes providing
substantive rights are not to be presumed retrospective. An enactment which seeks to take away any
vested right cannot be given retrospective operative unless it is expressly intended.
b.
Statutes dealing with procedure are presumed to be retrospective: Those statutes which
modify the existing procedures or provide for new procedures are given retrospective effect. If new Act
affects the matter of procedure only, then it applies to all actions pending as well as future.
According to Maxwell no person has a vested right in any course of procedure. He has only the right to.
prosecution or defense in the manner prescribed. If the procedure is altered, he has no other right than
to proceed according to altered mode.
In the matter of New India Assurance Co. Ltd. v. Shanti Misra (AIR 1976 SC 237) it was held by Hon'ble
SC that if new Act requires certain type of original proceedings to be instituted before a special Tribunal
to exclusion of civil court, all proceeding of that type whether based on old or new cause of action will
have to be instituted before that Tribunal.
The statutes dealing with substantive rights are presumed to be prospective and the statutes dealing
with procedures are presumed to be retrospective operation. Merely because a statute is procedural, it
cannot be operated retrospectively. What is to be seen is the effect of application of the statute. If
application of a procedural law like statute of limitation on past causes of action leads to revival or
extinguishment of a right of suit, it cannot be operated retrospectively.
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c.
Statutes Governing Succession are not retrospectively operated: Statutes regulating
succession are not applicable to successions which had already opened.
In one case of Eramma v. Veerupana (AIR 1966 SC 1879) it was held that the provisions contained in
Sec. 8 of the Hindu Succession Act, 1956, which lays down that the property of a male Hindu dying
intestate shall devolve according to provisions of the Act, is inapplicable to a case where successions
opened before the Act.
d.
Statutes regulating transfers and contracts are not retrospectively operated: Where a statute is
enacted prescribing new formalities for effecting a transfer, any transfer after commencement of such
statute shall have to be made in accordance with the provisions of the Act and any contravention thereto
would render the transfer invalid. But the transfers made prior to coming into force of such statute
remain unaffected. They are not declared void even though the new formalities prescribed were not
observed. The reason is that the formalities have been prescribed by an Act which was effectuated after
completion of transfer. If the transfer was made in contravention of the law in force at the relevant time,
then transfer is illegal in accordance to that law. However, the transfer cannot be invalidated for nonobservance of new formalities prescribed in later enactment. Therefore, the law regulating transfer is
not applied to past cases.
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Where a statute contained certain formalities to be observed for a lawful transfer and those formalities
are dispensed by a later enactment, then an invalid transfer under previous law does not get validated.
One cannot take a plea that though the transfer was not legal under the previous law due to nonobservance of formalities, prescribed therein, but now after removal of those formalities by subsequent
law, it is no more necessary to observe them and as such the transfer becomes legal.
A transfer made in accordance with the existing laws is a valid transfer. If a subsequent enactment
prohibits the transfer of the same nature, the effect is that no such transfer can take place after
commencement of prohibitory statute. But the earlier valid transfer cannot be invalidated by
subsequent prohibition.
e.
Statutes-prescribed limitations are prospective but may have retrospective operation for
certain matters: Certain statutes prescribe period of limitation for initiating legal action. Such statutes
do not create any right. The object is to prescribe period of limitation. After expiry of period of limitation,
the right to sue comes to an end. A subsequent limitation Act which provides a longer period of limitation
cannot be applied to the cases which are time barred. Once a particular action becomes banned under
earlier Limitation Act, recourse to later Act cannot be taken to revive the extinguished right. The larger
period of limitation provided by later Act is of no help.
On the other hand, if limitation period provided by the earlier law is reduced by a later Act and the right to
sue subsists under previous law but stands extinguished ~s per later Act, the matter will be governed by
earlier law only.
Statutes providing limitation are regarded as procedural law.
Statutes of limitation are thus prospective in nature since they neither revive a right of action which is
already banned, nor extinguish a right of action subsisting on that date. But they are retrospective in so
far as they apply to all legal proceedings brought after their operation for enforcing causes of action
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accrued earlier.
f.
Fiscal statutes are prospective in respect of changing provisions but are retrospective in
respect of the provisions dealing with procedure :
Fiscal statutes are presumed to be prospective only and not retrospective. However, this rule applies
only to charging sections and other substantive provisions. Charging sections are those sections by
which a charge is created. This rule has no application in respect of procedural part. Procedural part of
taxing Act is retrospective and applies to pending proceedings also.
"In the case of Gem granites v. Commissioner of Income Tax, T.N. ((2005) 1 SCC 289) Hon'ble Supreme
Court made certain considerations as to operation to fiscal statute as under:
1)
2)
3)
4)
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The fiscal statutes are so operated as not to effect finality of tax assessment.
Assessee cannot be subjected to reassessment.
A provision which is retrospective and opens up time barred liability shall be strictly construed.
Tax authorities cannot be authorized to commence proceedings which, before new Act, had
become time barred.
5) The provision which creates new obligation or affects existing rights is presumed to be prospective.
6) A change in law which seeks to vary the tax liability and which has been brought after beginning of
assessment year, does not affect the assessment made for that year.
A default or non-filing of Income Tax return which commenced during continuance of old Act, can be
dealt with under provisions of new Act if such default continues at the time of commencement of new
Act. for example non-filing of income-tax return is a continuous default. It continues till the time the
return is filed. The case can be dealt with under a new Act.
In one case of Maya Rani Punj Vs. Commissioner of Income Tax, Delhi (AIR 1986 SC 293) it was
held that a default in filing of return of income is a continuil'lg default till the return is filed. Such a default,
though it commenced when Income Tax Act, 1922 was in force, yet can be dealt with under Income Tax
Act, 1961 jf it continues after commencement of new Act.
g.
Penal Statutes creating new offences or increasing penalty for existing are prospective
only: The penalty shall continue to be governed by the old law under which a particular act was
declared to be an offence and punishment for it was prescribed. If the offender is suffering a term 'of
three months for an offence as per existing law and subsequently a new Act is enacted which enhances
the punishment for the same offence to six months, the offender cannot be compelled to serve out
enhanced punishment of six months.
Similarly the penal statutes which create new offences can be prospective only. Creation of new
offences means that a particular act which was not an offence previously, is declared to be an offence
and made punishable. However, such act shall be considered to be an offence only upon effectuation of
the new law and as such penal liability for commission of that act would arise only after the statute is
brought into force. The penal consequences would flow if a person commits the prohibited act after
commencement of law declaring it an offence. But a person who did that act prior to operation of law
forbidding that act cannot be held liable. An act legal at time of doing it, cannot be made unlawful by
some new enactment.
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In Pyare Lal Sharma v. Managing Director, Jammu and Kashmir Industries Ltd. (AIR 1989 SC
1854) the Regulation 16.14 of the J&K Industries Employees Service Rules was in question. This
regulation came to be amended on 20-04-1983. By way of amendment, more grounds for termination of
service of an employee were added. One of the newly inserted grounds was "if he (the employee)
remains on unauthorized absence". Supreme Court observed that it is the basic principle of natural
justice that no one can be penalized on the ground of the conduct which was not penal on the day it was
committed. In view of this it was held that period of unauthorized absence prior to date of amendment
could not be taken into consideration for terminating services of an employee.
Some important considerations for operation of penal statutes :
a. Any provision which increases penalty particularly if coupled with an additional liability to
imprisonment cannot be construed to be retrospective.
b. The penal statute which creates new offences can be prospective only.
c. If subsequent to commission of offence, provision is made by law for imposition of lighter penalty,
offender shall benefit thereby.
d. The procedure prescribed for trial of offence in a new Act may be applied for trial of similar offences
under repealed Act.
h.
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Statutes prescribing future disqualification on past misconduct are not retrospective: If a
future disqualification under a statute results from a prior misconduct, it does not make the statute
retrospective. No man has a right in his previous crimes and their consequences. Therefore the past
conviction of a person under an earlier statute may be looked into while punishing him from an offence
under new Act. No person is entitled to insist that his previous history should not be considered in a
future legislation. If a statute increased penalty on second conviction of an offence, a conviction before
commencement of statute could be taken into account.
Persons who were convicted or who have a stigma of misconduct on their character under a prior law
may create nuisance for the public at large. In order to protect the public from wrongful activities of these
persons, a statute may be brought. This statue is prohibitory in nature. The object is not to inflict
punishment on such persons but to impose prohibition on their wrongful activities. While proceeding
under such statute, the past conviction or stigma of misconduct of such person may be relied upon,
although that conviction or stigma was under earlier law. Thus, where it was provided that "every person
convicted of a felony shall be forever disqualified for selling spirits by retail", it was held that
disqualification applied to every convicted felon whether he was so convicted prior to or after the Act
came into operation.
i.
Remedial Statutes are not necessarily retrospective: A posterior disqualification under a statute
resulting from an anterior misconduct does not make the statute retrospective. Similarly, if a
prospective benefit flowing from a statute depends on earlier facts, it does not mean that the law is
retrospective.
Statutes providing new remedies for enforcement of existing rights will apply to future as well as past
causes of action. The reason is that these statutes are considered to be procedural since they do not
affect existing rights.
The remedial statutes are liberally construed. Therefore, the rule of presumption against
'retrospectively' is not strictly applied to these statutes.
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j.
Statutes dealing with appeals are prospective only: An appeal may be defined as a process of
moving a superior court against the order pass 3d by an inferior court. Right to prefer an appeal is
considered to be a substantive right.
It is judicially recognized right vesting in the suitor at the time of institution of original proceedings.
Some statutes or their certain provisions provide for an appeal against the order passed by a court.
Since right to appeal is a vested right, any statute affecting it cannot be retrospectively operated. If after
commencement of original proceedings, the law relating to appeal is amended so as to adversely affect
this vested right to appeal, it is presumed to be prospective only.
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The statutory provision dealing with appeal specifies the court before which appeal against the order
passed by a court may be preferred. But if the appellate court, that is the court to which appeal lies does
not exist, the right of appeal also cannot exist.
If the legislature has abolished the appellate court by an enactment and has not provided for any other
court in its place for filing new appeals, then the vested right of appeal is also destroyed. A litigant
cannot' claim that a court before which he would have preferred an appeal when he instituted the suit,
could not have been abolished.
The vested right of appeal at the commencement of original proceeding is limited to the same
proceedings. But this right is not available in the case of a later original proceeding even if the same is
somewhat connected with the original one.
When the repealing Act abolishes the existing courts and provides for new courts, the forum for
pursuing the vested right of appeal must be as provided in .the repealing Act.
k.
Pending Proceedings: Alternations in procedure can be applied but alterations affecting
substantive right cannot be applied.
If any alteration as to procedure takes place in the law during pendency of a legal proceeding, then such
alteration may be retrospectively operated. It means that the alteration in procedural part may be
applied to the pending proceedings as well. But where the alterations affect substantive rights of the
parties to suit, they cannot be applied on pending proceedings as well. But where the alterations affect
substantive rights of the parties to suit, they cannot be applied on pending proceedings unless
otherwise is. provided expressly or legislative intent to that effect can be drawn by necessary
implication.
IMPORTANT QUESTIONS
Q.1.
Write note on Retrospective Operation of Statutes.
Q.2.
Contemporanea exposition will not always be decisive of a question of construction.
Q.3.
Write a note on "Construction in bonampartam". ;
Q.4.
Name the doctrine of "Generic words must follow the specific words".
Q.5.
Name the doctrine, which can notes, "the words must be taken in lawful and rightful sense".
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Q.6.
The meaning of the rule of "casus omissus" .
Q.7.
Explain the rule, "Expression onionists Exclusion alteries" .
Q 8.
What is legal fiction .
Q. 9.
Define a consolidating statute .
Q.10. What is a presumption? Mention its significance .
Q.11. Define the expressions "May" and "shall" .
Q.12. When is a legislation said to be commenced?
Q.13. Do you adhere to the views that all statutes in one or the other sense are
"Declaratory statutes"?
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Q.15. Name the doctrine which carries the meaning "Generic words must follow more specific words".
Q.16. Expound the principle of interpretation "ut res magis valeat quam perecaf', with the support of
judicial determinations.
Q.17. Explain what is retrospective operation of statutes. Give references to some decided cases?
Q.18. What is "Amending Statute"? Illustrate this with aid of some judicial decisions?
Q.19. What presumption have the courts with regard to jurisdiction?
References:
1.
(1964) 5 SCR 975, P-1002
2.
AIR 1955 SC 661, P-749
3.
(1977) 90 LW 501
4.
(2005) 2 SCC 436
5.
(1982) 2 SCC 202
6.
(2000) 5 SCC 488
7.
(2005) 3 SCC 537
8.
AIR 1976 SC 1207
9.
Casus Omissus - on the relevant page as by index.
10.
(1891) AC 531, P-548
11.
(2004) 3 SCC 297
12.
AIR 1965 SC 871
13.
(2006) 3 SCC 266
14.
AIR 1980 SC 1553
15.
Crawford in Statutory Construction, P. 337
16.
Sutherland, Statutory Conostruction, Vol.2
17.
(2004) 1 SCC 755
18.
State of Uttar Pradesh v. Hindustan Aluminium AIR 1979 SC 1459
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