Q. 1 (g). Differentiate between the taxing and penal statutes.
Ans. Difference between taxing and penal statutes. A taxing statute is one which imposes taxes on income or certain other kinds of transaction. It may be in the form of income tax, wealth tax, sales tax, gift tax, goods and services tax (GST) etc. The object of such a statute is to collect revenue of the government. Tax is levied for public purpose. It is source of revenue generation for the State. The money so collected is utilise for welfare activities of the people. Tax can be levied only when a statu unequivocably so provides by using express language to that effect and any doubt is resolved in favour of the assessee.
A penal statute is one which punishes certain acts or wrongs. Such statute may be in the form of a comprehensive criminal code or a large number of sections providing punishments for different wrongs. Some instances of such statutes are the Indian Penal Code, Arms Act, 1959 Prevention of Food Adulteration Act, 1959 etc. The penalty for the disobedience of law may be in the form of fine, forfeiture of property, imprisoninent and even death. Where disobedience to law is enforced not by an individual but by a command of the law in the form of punishment, the statute is penal. A penalty may be imposed only when the letter of the law says so unambiguously and any doubt has to be resolved in favour of the alleged offender.
Intention of Legislature
Q. 1 (h). “The duty of Court is to act upon the true intention of the legislature.” Discuss the importance of the intention of Legislature in the light of this statement.
OR
“The duty of the Court is to act upon the true intention of the Legislature.” Critically examine the above statement and point out how the intention of the legislature is gathered.
Ans. Intention of the Legislature.-The Courts interpret the statutes in the light of the intention of the legislature.
The term intention of the Legislature’ is a dynamic term with a long history of changes in its meaning. Initially it meant what has been said by the Legislature in the statute. Then its meaning was changed and it came to mean the intent attributed by the Judiciary to the Legislature. Now it has arrived at a stage in which it signifies the objects of the Legislature or enactment.
The term ” legislative intention’ is an ambiguous term. In Soloman v. Soloman, 1897 AC 22, it was held that the term ‘intention of the Legislature’ is a general but very indefinite and complex term. As is ordinarily understood, it may mean the intention as incorporated in the statute; it may even mean imaginary opinion attributed to the legislature. which was not expressly incorporated in the statute.
The interpretation may be strict or liberal, When the meaning is deduced on the basis that the law-makers had adopted that meaning, the interpretation is called strict interpretation. When the meaning is deduced on the basis that the law-makers have negligently failed to adopt that meaning and would have adopted that meaning which the Court has adopted, had it been duly considered and discussed by it, such interpretation is regarded as a liberal interpretation. In the first form of interpretation, the judicial self-restraint is pre-dominant, whereas the second form of interpretation involves judicial creativity. According to the Apex Court as was laid down in Umed Singh v. Raj Singh, (1975) 1 Uchchatam Nyayalaya Nirnaya Patrika 512, this opinion seems to be proper that in reality there is always possibility of plea of presumed intention of the legislature to have effect on the mind, because it lends support to the view of the Court that it is only effectuating the intention of the legislature, whereas whatever it does only effectuates what would have been the intention of the legislature in its opinion.
The opinion of the legislature is of prime importance on the question of policy. The Court cannot impose its opinion on the matters of policy. The duty of the Court is to give effect to the true intention of the legislature. In order to find out the intention of the legislature the Courts have laid down certain rules which are as follows-..
(a) Discovery of the legislative intention from the words used in the statute.-The Courts try to find out the intention of the legislature from the language used in the statute. In Controller of Estate Duty v. K.Τ. Lal, AIR 1976 SC 1935, the Supreme Court has pointed out that the law resides in the language of the statute to a large extent. So long as there is no ambiguity in the law, the Courts have no freedom to depart from this general principle that intention of the legislature should mainly be deduced from the words used in the statute.
The language used in the statute is the determinative factor of the legislative intent. The first and primary rule of interpretation is that the intention of legislature must be discovered in the very words used by the legislature itself. The question is not that what may be supposed and has been intented but what has been said. The Court only interpret the law and cannot legislate it, AIR 2002 SC 1334. There are two main principles of construction. One relates to caus-omissus and other is to read the statute as a whole to determine the true intention of the legislature.
In Shiv Shakti Co-operative Housing Society v. Swaraj Developers. (2003) 6 SCC 659; also Union of India v. Braj Nadan Singh, (2005) 8 SCC 325, it was laid down that it is absolutely well-established principle that the Court can read nothing in the case of unambiguous statutory provision. The statutes is the edict of the legislature. If its plain meaning is clear, Courts do not impose a different meaning in the guise of interpretation.
(b) Discovery of the intention of the legislature by thoroughly reading the statute. It is well-established that the intention of the legislature should be found out by reading the statute thoroughly and whole statute should be gone through without dividing it in parts whimsically.
(c) Removal of inconsistency and harmonious construction.- In Madhya Pradesh v. Dadabhui Colliery, N.P. 1972 MP 295, it was laid down by the Madhya Pradesh High Court that this principle of interpretation has become well-established that the Court interpreting a legal provision should presume that the law-making authority had no intention to go beyond its competence and that it had intended to enact it, in a legal way. Therefore, where two interpretations are possible that interpretation should be preferred which supports the legality of the statute.
(d) Determination of legislative intention according to the object of the statute. If a statutory provision is open to more than one interpretation then the Court has to choose that interpretation which represents the true intention of the legislature. In selecting the true meaning regard must be had to the consequences resulting from adopting the alternative constructions. A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system which the statute purports to regulate has to be rejected and preference should be given to that construction which avoids such results. (Bhatia International v. Bulk Trading S.A, AIR 2002 S.C. 432). When the words used in the statute have no clear meaning or there is unanimity in the opinion of the judges, then it becomes necessary to have regard to the object and purpose, motive and spirit of the statute. In Nathi Devi v. Radha Devi Gupta, (2005) 2 SCC 271, the Supreme Court, while interpreting the words ‘let out by her or by her husband used in Section 14-D of the Delhi Rent Control Act, 1954, made it clear that the intention of the legislature was to make facilities for premises lent on rent, not to make facilities for sale or transfer of the premises.
(e) Determination of legislative intention by necessary implication. It was said by Lord Watson in Solomon v. Soloman, (1897) AC 22, what the legislature intended or not intended to do could be ascertained from what has been expressly or impliedly enacted in the statute. What is impliedly laid down in the statute is part of the statute in the same way as the express provision is part of the statute, e.g., where a statute does not provide repayment in lump sum or as a final payment in consolidated form, it is implied that payment may be made in instalments, if otherwise it seems practicable and permissible.
(f) Discovery of the intention of the legislature from the object and legislative history. In Gulam Kadir v. Special Tribunal, (2002) 1 SCC 33, it was observed by R.P. Sethi, J., that no interpretation which defeats the objects intended by the statute can be recognised.
In Legal Representative through Bhagat Ram (the deceased) v. Teja Singh, (2002) 1 SCC 210, the Supreme Court took into consideration the historical background of the Hindu Succession Bill, 1956 in order to find out legislative intent while interpreting Section 15 (2) of the Hindu Succession. Act, 1956.
Exceptions. There are certain exceptions to the general rule that the Court should find out the legislative intent from the words used in the statute and should have regard to the express or implied intention of the Legislature.
(a) Addition of words by necessity. It is the general rule that it is not permissible to read the words in the statute which are not there, but departure from this rule becomes necessary in certain circumstances, According to Maxwell (The Interpretation of Statutes, 14th edn., p. 228), “where the language of a statute, in its ordinary meaning and grammatical construction leads to a manifest construction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence, According to him, this may be done-
(1) by departure from the rules of grammar,
(2) by giving an unusual meaning to particular words, or
(3) by rejecting them altogether.
(b) Omission of words according to the necessity. If the words of the statute are not clear and some words have been added to it on account of the negligence or unskilfulness of the draftsman, which are destructive of the effect of the language, such words can be removed from the statutes on the ground of the surplusage.
But no exception would be applicable if the language used by legislature is plain and unambiguous and can be understood clearly to reach the object sought without leading to any absurdity.
In the case of Gaziabad Development Authority v. M/s. Unique Construction Lucknow, AIR 1997 All 341, the High Court of Allahabad observed that the principle of interpretation that no word used by legislature is useless, cannot be fitted into the situation where the question relates to the interpretatiorf of an agreement. Agreement is what it exists on the face of a document. The words which are free from vagueness and ambiguous should be focussed. The agreements should be interpreted on the basis of the words in the agreement only.
Q. 1 (i). Judges have strongly asserted that they do not make law, they only apply it as they find it. Evaluate the above assertion and point out the meaning, purpose and importance of interpretation of statutes.
Ans. Whether judiciary makes law
There are two contrary views regarding the question as to whether the judges make the law or merely declare the existing law-
1. Declaratory theory, i.e., the theory that the judges declare the law.
2. Legislative theory, i.e., the theory that the judges make the law.
1. Declaratory theory. According to this theory, the judges or the courts do not ‘make’ law, their duty is to ‘ascertain’ and ‘declare’ what the law is.
Existing rule of law, however, illogical and inequitable, it may be, once a precedent has been established, the Courts in Anglo-Saxon countries must follow it unquestionably. This is, however, subject to two qualifications:
(1) Courts may alter existing law by overruling or disregarding existing law. In theory, it does not mean altering old law but that the erroneous decision was never a law or the old decision which has become in applicable because of change of law or change in opinion of Judiciary in present context of independence of Judiciary where doctrine of precedence is not applied.
(2) If through some error a decision contrary to pre-existing law, it nevertheless constitutes a precedent and becomes the source of future law the doctrine of factum valient.
The judges, at least in theory, do not make law they merely declare it, that is to say, when a Court over-rules a decision, it does not propound a new rule, but only declares that the supposed law was never law. Even Blackstone has accepted this view. He observed that the function of the judge is to discover in the existing law, the principles that govern the facts of individual cases. Thus, judges maintain and explain the existing law. [Juris dicere et non just dure, Blackstone’s Commentaries, Vol. 1, p. 69.] Hence they are law-finders and not law-makers. Lord Esher in the famous case Willis v. Baddeley. (1892) 2 QB 324 (326), observed, “there is in fact no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable.” This theory is known as declaratory theory of precedents.
2. Legislative theory. According to this theory, judges do not declare law but make law in the sense of manufacturing or creating entirely new law.
Bentham has attacked the traditional view as a ‘childish fiction’. He has declared that Judges are in fact law makers and fulfil a function very similar to that of the legislator. He calls this theory as an orthodox view which is a wilful falsehood having for its object stealing of legislative power by and for hands which could not openly claim it. Austin calls declaratory theory as hypocritical and a childish fiction employed by common law judges that law is not made by them. Austin: Jurisprudence p. 655]
Blackstone’s theory has, however, been supported by the eminent American Jurist James Carter and he limits judicial decisions to mere declaration of existing law. According to him, precedents are merely interpretative of the existing law, they do not create new law. [Çarter: Law its Origin Growth and Functions, p. 185] This view of Carter about precedents has been criticised by some jurists on the ground that in cases which are not covered by existing law, the judicial decisions create new notions and formulate new principles which were never contemplated earlier. For example in Rylands v. Flectcher, (1868) LR 3 HL 330 See also Donoghue v. Stevenson, (1932) AC 562 and Derry v. Peak, (1889) 14 AC 337, a new category of strict liability was evolved wherein it was laid down that the keeping of a dangerous thing by a person on his premises was at his own peril for if it escaped as a result of the negligence and harmed a third party, the liability would still be on the keeper of that dangerous chattel and the plea of inevitable accident would be no defence to him.
Likewise, in India, the doctrine of precedent has created new law for future in In the historic Fundamental Rights number of cases. a case, Keshwanand Bharti v. State of Kerala, AIR 1973 S.C. 1481, the Supreme Court laid down a new Basic Structure Theory namely, the Parliament can alter any provision of the Constitution except the basic structure of the Constitution.
The doctrine of Judicial Supremacy has been described by Willoughby as follows: “The fundamental principle of American Constitutional Jurisprudence is that laws and not men shall govern. It is the doctrine of the judicial supremacy that has made the Supreme Court of the U.S.A. the balance heel of the Constitution and the concept of Judicial Review was evolved by Chief Justice Marshall of America in Marbury v. Madison, U.S. (1 Cranch) 137 (1803), case though this concept was not expressly provided in American Constitution. Moreover in realist approach, the American Jurists say that Law is what the Judges say.
Thus, Prof. Gray, one of the prominent jurists of the Realist School is of the view that Judges alone are the makers of law. He discredits the declaratory theory of law.
Salmond is also a supporter of the view that Judges do make law and says that he is evidently troubled in mind as to the true position of precedent. According to him, both in law and equity declaratory theory should be totally rejected.
Conclusion. The above theories are complementary to each other; these theories are not exclusive of each other. Neither the pure declaratory theory nor the pure legislative theory represents the whole truth.
Q. 1 (j) What is the difference between ‘Intention of the legislature’ and ‘intention of the statute’?
Ans. The difference between these two terms are as follows:
(1) In intention of the legislature, the solution of the problem as found by the combined will of the elected representative of the people is embodied whereas that very intention is given a shape in the intention of the statute through its object or purpose.
(2) If the intention of the legislature is the first stage of the formulation of some enactment in the shape of an idea, the intention of the statute is the crystallized form of that very idea having a shape for its enforcement.
(3) The intention of the legislature is formed by the labour and discussions of the members of the legislature whereas intention of the statute is given a form by the draftsmen in the shape of a Bill, which becomes the menu of discussion.
(4) At first some problem arises. Then it becomes large affecting the general public, then public opinion is recognized by the elected members of the legislature and then by the government (there may be difference of timings in recognition of the problem by the Government and the public representatives) and a solution of the problem is suggested by the Government to the draftsmen of the Bill which is put for discussion in the legislature. As such, the solution in the shape of a bill comes first and after discussion and making changes and amendments the same bill becomes a statute. Hence intention of the statute in the form of a Bill comes in crystallized form. Idea of the solution of the problem is given by the Government which is the part of a legislature hence intention of the legislature is first in taking its form/shape while the intention of the statute is the facsimile of the intention of the legislature in the shape of a bill and afterwards a statute.
(5) Intention of the legislature can be traced only after reading the whole statute while intention of the statute can be found in the preamble of the statute or in the particular provision itself.
(6) Intention of the legislature must be given a prime place while interpreting a statute so that its primary purpose may not be defeated while intention of the statute takes its care itself when the intention of the legislature is being taken care of by the interpreter.
(7) Intention of the legislature may be in implicit or implied form and scattered throughout the statute while intention of the statute may be in condensed form in the preamble of the statute or in a particular provision.
(8) Intention of the legislature may form that external source of interpretation in the shape of debates, history of the legislation or changing needs forming a problem of the society whereas the intention of the statute may be gathered from the internal source of interpretation just as preamble, heading, marginal notes illustrations, exceptions, explanations etc.
Both terms must be given due importance while interpreting a provision so that result may not defeat the very purpose of the enactment and may lead to the proper solution of the problem faced by the society.
Q. 1 (k). Do the Judges make law? Discuss.
Ans. Function of the Judges- Not to make laws. The function of the Court is not to make laws but to interpret the laws enacted by the Legislature. Blackstone says that a Judge is sworn to detemine not according to his own judgment, but according to known laws and customs of the land; not delegated to pronounce a new law, but to maintain and explain the old one.
There was a time when statutes were few and Judges could make laws. The view that Judges are in fact law makers was contemptuously held by Bentham and Austin. According to Prof. Dicey, a strong supporter of the theory, a large part-the best part of the law in England is judge-made law. that is to say it consists of the rules collected from the decisions of the Court. This portion of the law neither has been created by any Act nor is recorded in any Statute Book.
However, the Courts in the continent of Europe have a wider discretion and they are allowed to take into account the discussions in the Legislative Assemblies as aid in interpreting a statute. This power is not recognised in England. In India, it is permissible to refer to the debates in the Legislative Assembly and in the Parliament as a clue to the intention of the Legislature as an external aid of interpretation.
The question before the Supreme Court in Anil Bapurao Karase v. Krishan Sahkari Karkhana, AIR 1997 S.C. 1698, was whether termination of service of a seasonal worker amounts to retrenchment within the meaning of the definition of ‘retrenchment’ in Section 2 (oo) of the Industrial Disputes Act, 1947. It was observed by the Court that the words ‘for any reason whatsoever’ were being given a very wide interpretation in the past so that retrenchment benefits would be made available to the workmen. But with the amendment of the provision by Act 49 of 1948 termination of service on account of non-renewal of contract of employment on expiry of the period of termination under a stipulation in the contract of employment have been excluded from the word ‘retrenchment’. Consequently, termination of service of a seasonal worker is not retrenchment.
Judge-made law cannot, however annul a legislative enactment nor can it abrogate the existing law. Cardozo who appears to have struck a balance between the two extremes, observes that Judges develop the law along the line of logical progression, historical development, and customs of the community, or justice, equity and good conscience. They cannot properly be said to legislate in the sense of introducing a novel principle which is within the province of the Legislature to do.
It is true that the Judges have a creative role but Lord Scarman’s warning should be kept in mind by the Judges while they interpret a statute. Lord Scarman has warned-“The constitutional separation of powers, or more accurately functions, must be observed if judicial independence is not to be put to risk. For if people and Parliament come to think that the judicial power is to be confined by nothing other than the Judge’s sense of what is right (or, as Seldon put it by the length of the Chancellor’s foot), confidence in the judicial system will be replaced by fear of it becoming uncertain and arbitrary in its application. Society will then be ready for Parliament to cut the power of Judges. Their power to do justice will become more restricted by law than it needs be or is today.” [Duport Steels Ltd. v. Sirs, (1980) 1 All ER 529 p. 551 (HL).]
Justice H.R. Khanna in his essay on the topic “Judges as Law Makers” laid down that Judges not merely interpret the laws but also make the laws. The statement is correct but only in limited sense.”
Meaning, objects and principles of interpretation
Q. 2 (a). What do you understand by the interpretation of statutes? Explain in detail.
OR
What is the meaning and object of interpretation? What are the principles of interpretation? Discuss.
Ans. Meaning of interpretation-Please refer to Q. 1 (a).
Object of interpretation-According to Lord Parker C.J., “The object of all interpretation is to discover the intention of Parliament, but the intention of Parliament must be deduced from the language used.”
According to Salmond ‘By interpretation or construction is meant the process by which the Courts seek to ascertain the meaning of the legislature through the medium of the authoritative forms in which it is expressed. [Salmond: Jurisprudence 12th Edn. p. 132].
The main object of interpretation is to give a meaning to the words of statute according to the intent of the legislature. The object of interpretation of statutes is to determine the intention of the legislature conveyed expressely or impliedly in the language used. As stated by Salmond, “by interpretation or construction is meant, the process by which the courts seek to ascertain the meaning of the legislature through the medium of authoritative forms in which it is expressed”.
Principles of interpretation-There are various rules of interpretation formulated by different Courts at different times. These are, according to Salmon Salmond, rough principles or guidelines rather the application within the context of law of ordinary common sense rules of language. The Court is at liberty to consult the dictionaries or other scientific or technical works and texts in which such words have been used, or it can interpret the words in the light of the definition of the words given by the statute itself, or by the General Clauses Act in context to India.
Classification of principles. The main principles of interpretation may be classified into two broad categories, viz. (i) Grammatical or literal construction and (ii) Logical.
(i) Grammatical or literal construction.--Grammatical or literal construction means that the language used in a statute is to be construed in its grammatical sense. ‘It does not look beyond the litera legis’. When the language of a statute is clear, plain and unambiguous, no question of interpretation arises, because the language speaks the intention of the Legislature. The Court must not ‘shrink from its duty to give effect to that meaning irrespective of consequences. In a Court of law or equity, said Lord Watson in Sulomon v. Salomon & Co., (1897) A.C. 22, “what the Legislature intended to be done, or not to be done, can only be legitimately ascertained from that which it has chosen to enact, either in express terms or by reasonable and necessary implication.”
(ii) Logical interpretation. Literal construction has its limitations. Thus, literal or grammatical interpretation may fail to meet the case where, for instance, the words used in the statute are ambiguous, and are capable of two distinct interpretations and meaning. In such cases, some other aid must be called in. The essence of the law, as stated by Salmond, lies in its spirit, and not in its letter, letter being only the external manifestation of the intention that underlies it. In order, therefore, to determine the spirit of the legislation, the Court resorts to what is called Logical Interpretation. It is sound rule to construe a statute in conformity with the spirit of the law to avoid absurdity likely to be caused by literal interpretation. In short, logical interpretation is a deviation from literal rule. Two principles emerge from the logical interpretation. Firstly, where there is an ambiguity in the language of a statute, that rendering will be preferred which would best effectuate the intention of the Legislature and Secondly, where two interpretations are possible, or where the words are capable of two interpretations that meaning should be preferred which would be in conformity with the object of the statute, and would prevent absurd, unjust and immoral results.
In the case of Chairman of Mining and Chief Inspector of Mines v. Ramjee, AIR 1977 SC 965, Justice lyer observed that “To be literal in meaning is to see the skin and miss the soul. The judicial key to construction is the composite perception of the daha and dahi of the provision”. Therefore, it is clear that for determination of the intention of legislature is to discover the true spirit of the legislature is also essential.
But the rule of logical interpretation should not be used “as means of whittling down what is expressly intended by the Legislature. The Courts have no jurisdiction to destroy or defeat what is evidently intended by the Legislature by importing anything of their own, nor should they modify the provisions of a statute for promoting equitable justice among the parties. This will amount to new legislation which is not the prerogative of the judiciary. It is an established principle that as long as there is no ambiguity in the statutory language resort cannot be had to any interpretative process in order to reveal the legislative intention (M/s. Keshavji Raji and Co. v. Commissioner of Income-tax, (AIR 1991 S.C. 1806)]. Above all, it is to be kept in mind that the interpretation which leads to hardship or complication is to be avoided. [B.N. Shankarappa v. Uthanur Srinivas, AIR 1992 S.C. 836]
Definition of interpretation in the light of the doctrine of separation of power
Q. 2 (b). “Whereas Legislature enacts the law, Executive executes it and Judiciary interprets it.” In the light of this observation define Interpretation.
Ans. Definition of interpretation in the light of the doctrine of separation of powers. “If the legislative and executive authorities are one institution, there will be no freedom. There won’t be any freedom anyway if the judiciary is not separated from the legislature and executive”- Charles de Montesquieu.
Parliamentary form of government and independence of the judiciary are the main features of the Indian Constitution. Here reign of power does not vest in any despotic or hereditary ruler, but it vests in the hands of the elected representatives of the people. All the three organs of the government are independent of each other and perform their duties without interfering with the functions of the other. The Legislature makes the law, the Executive implements it and the judiciary interprets it. In India, the doctrine of separation of powers enunciated by Montesquieu is accepted to the extent that here functions and powers of the three organs of the Government-the Legislature, Executive and the Judiciary are defined, and demarcated.
The odctrine of separation of powers is a part of the basic structure of the Constitution. The functions of the three organs of the Government are specifically mentioned in the Constitution.
There is a system of checks and balances according to which various organs of the Government impose checks on one another by certain provisions.
The judiciary has the power of judicial review over the actions of the executive and the legislature.
The judiciary has the power to strike down any law if it violates any provision of the Constitution or is beyond of the legislative competence of the legislature.
It can declare executive actions as void or unconstitutional.
-The legislature controls and reviews the functioning of the executive. -Though the judiciary is independant, the Judges are appointed by the executive.
Due to the system of ckecks and balances, no organ of the Government can become all powerful.
The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well said that our Constitution does not contemplate assumption by one organ or part of the State of functions that essentially belong to another. Ram Jawaya Kapoor v. State of Punjab, AIR 1955 SC 549]
In a statute, the intention of the Legislature is expressed by means of language. The need of interpretation arises not only where ambiguous language is used but it arises also in those cases where it is necessary to know the intention of the Legislature.
According to Prof. Chimp Gray, interpretation is a science and it is a process by which a judge adopts that meaning of the words used in the written law, which according to him would have been adopted by the Legislature or that meaning which he wants to attribute to the Legislature.
According to Keeton, the judges perform two types of functions in the interpretation of statutes:-
(1) they have to decide what is the appropriate meaning of the words used by the Legislature;
(2) they have to consider what was intended by the Legislature which it did not express because it had not contemplated the circumstances in which it would come before the Judiciary.
In the State of Jammu and Kashmir v. Ganga Singh, (1962) 2 SCR 346, Justice Subba Rao said that the interpretation is a process by which the correct meaning or sense of a legal provision may be understood.
According to Sir Ruppert Cross, interpretation is a process by which the Courts determine the meanings of the statutory provisions for applying them in the circumstances arising before it.
Salmond has said that interpretation or construction is a process by which the Courts get the knowledge of the meaning attributed to a statutory provision by the Legislature by such means by which these are expressed in the authentic documents.
Literal Interpretation
Q. 3. What do you understand by Literal Interpretation? Explain with the help of decided cases?
OR
Discuss the rule of Literal Interpretation with the help of the decided cases.
Ans. Literal Interpretation (Strict Interpretation)- According to Lord Wensleydale, in construing wills and indeed statutes and all written instruments, the grammatical and ordinary sense of the word is adhered to, unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity, and inconsistency, but no further. [Grey v. Pearson, (1857)6 HLC 61 p. 106].
While interpreting a word/term can a Court refer to an cariier statute where that term/word had been used? The Supreme Court in the ase of Naresh Kumar Madan v. State of M.P., AIR 2008 SC 385 has observed that different statutes may use the same term/word for different purposes. A term/word may be interpreted in the statute itself for fulfilling the purport and object mentioned therein whereas in another statute it may be defined differently. As such interpretation of a term in one statute, however, cannot be done with reference to its definition contained in another, except General Clauses Act, 1897.
Grammatical interpretation is also called as literal interpretation. In case of such construction only the verbal expression of Law is taken into construction, the Courts do not travel beyond the litena legis or literal constructions.
Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced, however, harsh or absured or contrary to common sense the result may be [Maxwell: The Interpretation of Statutes, 12th Edition, Page 29].
In case of Insurance Co. Ltd. v. Shinder Kaur, AIR 1998 Punj. & Har. 184 it was observed that where language is clear and plain, then plain meaning of words has to be followed and in case of Jogeshwar Majhu v. Ramiya Kishan, AIR 1997 Ori 54, the Court observed that “Natural rule is that the plain words should be interpreted according to their plain meaning.’
According to Lord. Atkinson, “In the construction of statutes, their words must be interpreted in their ordinary grammatical sense unless there is something in the context, or in the object of the statute in which they occur or in the circumstances in which they are used, to show that they were used in a special sense different from their ordinary grammatical sense. [Cooperation of the City of Victoria v. Bishop of Vancouver Island, AIR 1921 PC 240, p. 242). Lord Simon of Glaisdale has said in Suthendran v. Immigration Appeal Tribunal, (1976) 3 All ER 611, p. 616 (HL)- “Parliament is prima facie to be credited with meaning what is said in an Act of Parliament. The drafting of statutes, so important to a people who hope to live under the rule of law, will never be satisfactory unless Courts seek whenever possible to apply ‘the golden rule’ of construction that is to read the statutory language, grammatically and terminologically, in the ordinary and primary sense which it bears in its context without omission or addition. When the meaning is clear from the plain and grammatical construction, that is what the Court would adopt. [Tata Motors Ltd. v. Pimpri Chinchwad Municipal Corporation, AIR 2007 (NOC) 257 (Bom.)]. Of course, Parliament is to be credited with good sense, so that when such an approach produces injustice, absurdity, contradiction or stultification of statutory objectives the language may be modified sufficiently to avoid such disadvantage, though no further.” The above rule has been approved by the Indian Supreme Court. Harbhajan Singh v. Press Council of India, AIR 2002 SC 1351, p. 1354]. In Narinder Pal Kaur Chandra v. Manjeet Singh Chawla, (2008) 1 DMC 529 Del (DB), the Court laid down the principle that even when two interpretations are possible, one which advances the purpose for which the Act was enacted should be preferred than the other, which may frustrate the purpose.
In Reji Thomas and others v. State of Kerala, AIR 2018 SC 2236, the Apex Court held that Section 69(3) of the Kerala Co-operative Societies Act, 1969 prescribing a statutory period for filing an election petition cannot be extended by courts. This provision is a mechanism provided by the State Legislature as contemplated under Article 243ZK (2) of the Constitution and no court, whether a High Court under Article 226 or the Supreme Court under Articles 32, 136 or 142 can extend a period in election matters. In matters of limitation in election cases, Court has to adopt a strict interpretation of provisions.
In K.H. Nazar v. Mathew K. Jacob, AIR 2018 SC 4681, the Supreme Court while interpreting Sections 81(1) and 2(5) of the Kerala Land Reforms Act, 1964 held that commercial sites read alongwith the other clauses dealing with sites clearly indicate that land occupied by structures is described as ‘site’. The other clauses indicate that land occupied by structures is described as ‘site’. The other clauses in Section 81 dealing with sites are house sites, Temples, Churches, Mosques and Buildings. As such, the expression ‘commercial site’ cannot take into its fold vacant lands including lands used for the purpose of quarrying. A commercial site is a land on which there is a structure being utilised for an industrial or commercial purpose. Extension of the words “commercial site” to quarries would result in defeating the purpose of the Act.
Rules of Interpretation of Penal Statutes
Q. 4 (a). ‘Penal statutes are to be interpreted strictly’. Explain. State the exception, if any.
OR
Describe the rules of interpretation of Penal Statutes.
OR
What is meant by strict construction of Penal Statutes? Why should the penal law be strictly construed? Give reasons with illustrations.
OR
“In construing a penal law, if there appears a reasonable doubt or ambiguity, it will be resolved in favour of the person who would be liable to penalty”, Discuss the above statement with reference to. the strict construction of penal statutes.
Ans. Rules of interpretation of penal statute. Clear language is required to create an offence. (Surajmani Stella Kujur v. Durgacharan Hansdah, AIR 2001 SC 9381. The law is jeoulous in keeping the liberty of its subject and it does not allow that a person should be detained or his liberty be attacked without a just or proper cause. The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to his person or property. And it is in the interest of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the Court to consider trangulation of interests. It involves taking into consideration the position of the accused, the victim and his or her family and the public. [Attorney General’s Reference (No. 3 of 1999) (2001) 1 All E.R. 577 (H.L.). Not only the accused but the society at large and the victims or the members or relatives of their family are entitled to be dealt with fairly. “Denial of fair trial is as much injustice to the accused as is to the victims or the society.” Zohra Habibullah H. Sheikh v. State of Gujarat, AIR 2004 SC 3114. Unless the words of a statute clearly make an act criminal, it shall not be construed as criminal. If there is any ambiguity in the words which set out the elements of an act or omission declared to be an offence so that it is doubtful whether the act or omission in question in the case falls within the statutory words, the ambiguity will be resolved in favour of the person charged. According to the rule of strict construction of penal law, where an equivocal word or ambiguous expression leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of doubt should go to the subject. Penal statutes operate prospectively. [A. Salim v. K.S.E. Board, AIR 2006 (NOC) 408 Ker). There must be stringent interpretation of stringent laws enacted for dealing with and punishing offences against married women. [K. Prema S. Rao v. Y. S. Rao, (2003) 1 SCC 217].
In Mohinder Singh ingh v. State of Punjab, AIR 2017 SC 4031, the accused truck driver was allegdly found in possession of contraband. No investigation was conducted with regard to the origin and destination of the contraband. Proceedings for confiscation of the truck were not taken. The only independent witness was held to be a stock police witness and his testimony was found unreliable. There was no evidence to prove guilt of the accused. The Supreme Court held that the accused was entitled to acquittal. The case being a case under the N.D.P.S. Act, 1985 which is a presumptive legislation, its interpretation has to be strict. The interest of justice calls for restoring the order of the acquittal passed by the Sessions Judge. The order of the High Court in appeal was set-aside.
In Priyanka Nagpal (Ms.) v. State (Govt. of NCT of Delhi), AIR 2018 SC 1172, the trial court sentenced the accused for dishonour of cheque under Section 138 of the Negotiable Instruments Act, 1881 to two month’s simple imprisonment, fine of ten thousand rupees and a compensation of rupees six lakh. The accused was to pay the fine and the compensation amount. The accused was the only earning member in her family earning rupees four thousand per month. Undergoing imprisonment would result in the accused losing her job. The Supreme Court modified the sentence of imprisonment to additional compensation of fifty thousand rupees to be paid to the complainant within a period of three months.
Exceptions to the strict constructions of penal statute. But there are certain exceptions to this rule. Where, however, the intention of the Legislature is clear, and if it is found that by a narrower interpretation, the purpose of the statute is frustrated, then there is no objection to wide construction being given to the words in a penal statute to be in accord with the legislative intent. When the obvious purpose is to remove a defect and achieve a certain object, the Courts will not hesitate to give a wide meaning to the words of a penal statute.
Thus, a wide interpretation has been given by the Privy Council to the word ‘sent’ in R.v. Jepson, [(1967)2 East PC 1115]. It was held that a threatening letter is ‘sent’ when it is dropped in the way of that person for whom it is meant, or affixed in such a conspicuous place so that he would see it or dropped near his house, so that it may anyhow attract his notice. The literal meaning of the word ‘sent’ will not in anyway convey the senses in which this has been construed as above.
Indian cases showing Exception to the general rule that a penal statute should be construed strictly. It is well settled rule that penal statutes should be construed strictly, but this is not an inflexible rule of construction. During the present time, the rule means a little more than that such statutes are to be fairly construed like all others according to the legislative intent as expressed by the statute itself or arising out of it by necessary implication. Hence the rule which requires that penal and some other statutes should be construed strictly has lost much of its force in recent times. The new concepts of victomology where victims are also taken care of and the plea bargaining have given more avenues of freedom to the interpreter and the Courts where strict interpretation of a penal statute is involved.
Wide construction to Food Regulations. Our Supreme Court while interpreting the definition of ‘butter’ as given in Appendix ‘B’, Rule A. 1105 framed under the Prevention of Food Adulteration Act, 1954, i.e., ‘butter’ meaning the product prepared exclusively from the milk or cream of cow or buffalo or both’-held that butter prepared from ‘curd,’ i.e. soured milk or cream also fell within the definition and an appeal to the strict construction was turned down on the ground that strict construction would obviously be contrary to the legislative intention which is clear from language used. [M.S. Joshi v. M.V. Shimpi, AIR 1961 SC 1494.]
In Sakshi v. Union of India, AIR 2004 SC 3566, it was observed by the Apex Court that the rape as defined under Section 375 of the Indian Penal Code is only hetrosexual intercourse involving penetration of the vagina by the penis coupled with the explanation that penetration is sufficient to constitute the sexual intercourse necessary for the offence of rape. All forms of penetration such as penile/oral, penile/anal, finger/vaginal and finger/anal penetration are not covered within it. Since there is no ambiguity in the definition, it is not desirable to create chaos by wrong judicial interpretation.
In State of Maharashtra v. Mohd. Yakub, AIR 1988 SC 1111, the word ‘smuggling attempt’ was to be construed by Supreme Court. This was earlier construed by Bombay High Court in a narrower sense. Under the Customs Act preparation to commit the offence of exporting the contrabands was not punishable. Bombay High Court relied on the narrow and strict meaning of the the provisions of f the said Act, and acquitted the accused.
Supreme Court negatived the decision of Bombay High Court and declined to agree with the interpretation given by the High Court of Bombay.
In its decision it was held that strict interpretation of the word ‘attempt in these penal provisions would defeat their efficacy. These provisions should be interpreted in a manner which suppresses the mischief, promotes the object, prevents their subtle evasion and foil their artful circumvention.
The similar opinion was given in the case of [M.V. Joshi v. M.V. Shimpi, AIR 1961 SC 1494].
Wide construction necessary to carry out the legislative intent. The ultimate object of construction either of a penal as well as of other statutes is to ascertain the legislative intent and the rule of strict construction is not violated by permitting the words to have their full meanings if that would effectuate the intention. The words as used in the penal statute are taken in a sense more wide than their etymological denotation and the meaning colloqually or popularly or popularly attached to them.
This is necessary to carry out the legislative intent which comes within the ‘mischief’ aimed at by the statute. The sooner this pre-disposition is removed, the better it would be for all concerned. The Court is not, therefore, to create any ambiguity where there is no ambiguity, nor ‘should it limit the content by construction when the spirit of the statute is in accord with the words used therein’. [Subbarao, J., in M. Narayan v. State of Kerala, AIR 1963 SC 116.]
The Supreme Court in Reema Agarwal v. State of Gujarat, AIR 2004 SC 1418, construed the expression ‘husband’ used in Section 304-B and 498- A of the Indian Penal Code to cover a person who enters into marital relationship with the woman concerned whatever may be the legitimacy of the marriage. Such a construction was made with the object of preventing cruelty to women.
Strict construction of penal statutes-Maxwell’s propositions.- According to Maxwell, the strict construction of statutes manifests itself in four ways, namely, (i) in the requirement of express language for the creation of an offence; (ii) in interpreting strictly words setting out the elements of an offence; (iii) in requiring the fulfilment to the letter of statutory conditions precedent to the infliction of punishment and (iv) in insisting on the strict observation of technical provisions concerning criminal procedure and jurisdiction.
(i) Express language necessary for the creation of an offence.- No act is to be deemed criminal, unless it is clearly made so by the words of the statute concerned.
(ii) Words setting out the elements of an offence. The normal rule in the construction of a penal statute is that if there is any ambiguity in the language setting out the elements of an act or omission constituting an offence, and, if a doubt arises as to whether the particular act or omission falls within the statutory provision, the Court should interpret the words always in favour of the accused.
If two possible and reasonable constructions can be put upon a penal provision, the Court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty. It is not competent to the Court to stretch the meaning of an expression used by the Legislature in order to carry out the intention of the Legislature.” [Bijaya Kumar Agarwala v. State of Orissa, AIR 1996 SC 2531, p. 2534].
(iii) Fulfilment to the letter of statutory conditions precedent to the infliction of punishment. In other words, punishment shall be imposed only if the person proceeded against comes fairly and squarely within the plain language of the enactment. Thus disqualification from holding a driving licence could not be imposed under the Road Traffic Act, 1930, Section 6 (1) on a person convicted of stealing a car and driving it away who was not also convicted of taking and driving away. [R. v. William. (1962) 1 WLR 1268.]
(iv) Strict observance of technical provisions concerning criminal procedure and jurisdiction. The Courts, in interpreting statute dealing with criminal procedure, if they relate to imposition of penalties, should observe the same principle as in the case of substantive law. In other words, if there is any ambiguity or doubt, it will be construed in favour of the person proceeded against. This should be so, even though it enables the accused to esacpe on the question of a technicality. Thus even slight deviation from the prescribed procedure would go in favour of the person charged. [R. v. Clarkson, (1961) 1 WLR 347.]
Justification of strict construction of penal statutes. The rule of strict construction of penal statutes is justified on the ground that the enormous growth of penal laws in the present time may not become traps for honest and unwary men [Seksaria Cotton Mills v. State of Bombay. AIR 1953 SC 278]. By strict construction of penal statute, that is, by limiting its operation to the clear meaning of the language and excluding uncertainty in its application, much injustice can be avoided. Any relaxation may allow trapping of innocent persons by the police.
Strict interpretation saves the innocent persons from the trap of imposition of punishment and makes it compulsory to observe every step of the procedure and any laxity in observation of following of the prescribed procedure goes to the benefit of the defaulter accused.
Q4 (b). Explain the meaning and usefulness of mens rea in the field of interpretation.
Ans. Meaning and usefulness of mens rea in the field of interpretation-No crime without mens rea- Existence of guilty intent is an essential ingredient of a crime at comnon law. Almost every crime which exists at common law independently of any statute requires for its commission some blameworthy state of mind on the part of the actor and this guilty mind of the doer of some action/omission prohibited by law is called mens rea (Maxwell.)
There is a general presumption that no crime can be committed unless there is mens rea and the presumption is not ousted unless a contrary intention is made. Mens rea generally means blameworthy state of mind whether constituted by knowledge or intention or otherwise.
Before the punishment is imposed the law must be satisfied of two things-
(i) that an act has been done which by reason of its harmful tendency or results is fit to be repressed by way of penal discipline; and
(ii) that the mental attitude of the doer towards his deed was such as to render punishment effective as a deterrent for the future, and therefore just.
Lord Reid maintains the view that, when a statute creates an offence and the offence so created, involves the existence of mens rea as an essential element of it, or whether the statute dispenses with, and creates strict liability are questions which have to be answered on a true construction of the statute. The Courts, however regard it as a fundamental principle that an offence cannot be made out without the existence of men rea, unless from a consideration of the terms of the statute and other relevant circumstances it clearly appears that this must have been the intention of the Parliament.
Construction of penal statutes-if mens rea is an essential ingredient. The rule of construction, which was formulated by Wright, J., and Lord Goddard, C.J. has been accepted by the Privy Council and our Supreme Court.
Wright J., was of the view that- Mens rea is an essential ingredient of every offence but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals with and both must be considered. [Sherras v. Rutzen. (1895) Q.B. 918]
Lord Goddard has opined that every Court should bear in mind that unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence against criminal law unless he has a guilty mind. [Brend v. Wood, (1946) 175 L.T. 306.]
Wright, J., in the famous English case, Sherrus v. De Rutzen, [(1895) Q.B. 918), observed that, there are certain cases where legislature enacts absolute prohibition, such as: (i) acts which are not criminal in any sense, but which, in the public interest, are prohibited under a penalty, such as, Revenue laws, Adulteration Acts, etc.; (ii) Acts amounting to public nuisances; and (iii) cases though criminal in form, but are only a summary mode of enforcing a civil right.
In Nathulal v. State of M.P., AIR 1966 S.C. 43, the Supreme Court, while acquitting the accused, observed that the Act which imposed heavy penalties could not be construed to dispense mens rea, as the object of the Act could not be defeated on such construction.
The mens rea is not taken into consideration where absolute liability is imposed and person is held liable even without guilty mind when prohibited incident occurs.
Mischief Rule of Interpretation
Q. 5. What is meant by the Mischief Rule? In what respect it is different from Literal Rule?
OR
“The Mischief Rule of Interpretation suppresses the mischief and advances the remedy”. Explain this rule with the help of Heydon’s case.
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Describe Mischief Rule of Interpretation. Mention the Indian cases where this rule was applied.
OR
In what respect Mischief Rule is different from literal rule?
Ans. Mischief Rule of Interpretation-What it means. The rule in Heydon’s case is popularly known as ‘mischief rule’. This rule was firstly propounded in Heydon’s case, 3 Co. Rep. 7a. The intention of this rule is always to make such a construction as shall suppress the mischief and advance the remedy. In order, therefore, to interpret a statute properly it would be necessary, as re-affirmed by Lindley, M.R., to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that ‘mischief. [Registrar, Him. Pradesh University v. Shashi Pal Singh, AIR 1974 Him. Pra. 91.]
In Heydons’s case in 1584 it was resolved by the Barons of the Exchequer that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be considered-
(1) What was the common law before the making of the Act;
(2) What was the mischief and defect for which the common law did not provide;
(3) What remedy the Parliament had resolved and appointed to cure the disease of the commonwealth; and
(4) The true reason of the remedy, and the office of the judges is always to make such construction as shall suppress the mischief and advance the remedy.
We must try and get the meaning of what was intented by considering the consequences of either construction. And if it appears that one of these constructions will do injustice and the other will avoid that injustice, it is bounded duty of the Court to adopt the second and not to adopt the first of those constructions.
When this rule is to be applied. It is now held by all authorities that in construing a statute it is not only legitimate, but highly convenient to refer both to the former Act and to the ascertained evils to which the former Act has given rise and to the latter Act which is alleged to have provided the remedy. In case of doubt, it is always advisable to refer to the object and purpose of the statute. This aspect of purpose is the very foundation of the rule in Heydon’s case.
In the well-known English case Smith v. Hughes, (1960) 1 WLR 830, the question was whether the prostitutes who attracted the attention of the passersby from balconies, or windows were soliciting ‘in a street’ within Section 1 (1) of the Street Offences Act, 1959. Lord Parker, C.J., held, this was an Act intended to clean up the streets, to enable the people to walk along the streets without being molested or solicited by common prostitutes. Viewed in that way, the precise place from which a prostitute addressed her solicitations to somebody walking in the street became irrelevant.
In the case of U.P. State Agro Industrial Corporation Ltd. v. Kishan Upbhokta Parishad, AIR 2008 SC 777, it was observed by the Supreme Court that words used in statute or order should have the specific meaning. Language is the tool of communication between human beings and hence that meaning should be given which helps communication between people. In common parlance ‘implements’ are regarded as tools used by human beings with their hands (or sometimes by their legs) or drawn by animal powers. Thus, a plough which is driven by oxen or horses would be regarded as agricultural implements. Similarly a hoc or spade would be agricultural implements. However, a bullock cart which is used for carrying agricultural products from the farm to the market or sugar factory cannot be regarded as agricultural implement, because in common parlance it would not be regarded by people as an implement. A bullock cart is not a tool.
The Supreme Court in Bengal Immunity v. State of Bihar, AIR 1955 SC 661, applied this rule in construing Article 286 of the Constitution. After referring to the in the state of law prevailing provinces es prior to the Constitution and also the chaos and confusion by indiscriminate exercise of the taxing power by different Legislatures, founded on the theory of territorial nexus, S.R. Das, C.J., observed that it was to cure the mischief of multiple taxation and to preserve the free flow of inter-State trade or commerce in the Union of India regarded as one economic unit without any provincial barrier that the Constitution-makers adopted Article 286.
In the case of Shiva Narain v. State of Madras, AIR 1967 SC 986 (989), the principle of mischief rule was applied. In this case the problem was the interpretation of Section 2 (c) of Forward Contracts (Regulation) Act, 1952. The Supreme Court held that if the expression “Forward Contracts” in Section 2 (c) is not construed so as to include speculative contracts which ostensibly are for delivery of goods the provisions of the Act would be nugatory.
It is a sound rule of interpretation that a statute should be so construed as to prevent the mischief and to advance remedy according to the true intention of the makers of the statute.
Supreme Court further added that in construing Section 2 (c) of the Act and in determining its scope it is permissible to have regard to all such factors as can legitimately be taken into account in ascertaining the intention of the Legislature, such as the history of the statute, the reason which led to its being passed, the mischief which it intended to suppress and the remedy provided by the statute for curing mischief.
In case of Vishesh Kumar v. Shanti Prasad, (2002) 8 SCC 237, the Supreme Court observed that, that construction which would advance the purpose and the object of the legislature and remove and suppress the mischief sought to be cured should be adopted.
In M.C. Mehta v. Union of India, AIR 2018 SC 5194, while interpreting Sections 110 and 45 of the Motor Vehicles Act, 1988, Rule 115(21) of the Central Motor Vehicles Rules, 1989, as inserted by the Central Motor Vehicles (First Amendment) Rules, 2018 and Article 48-A of the Constitution, the Supreme Court held that every vehicle sold on or after the cut-off date of April 1, 2020 (at the date of the judgment there was almost one and-half years till the cut-off date) is bound to cause more pollution and, therefore, manufacturers cannot be permitted to sell any non- BS VI compliant vehicle on or after the cut-off date. When health of millions is involved, notification relating to commercial activities ought not be interpreted in a literal manner. Purposive interpretation has to be given to notification especially those dealing with public health, not only of present but also of future citizens is involved. Rule 115(21) shall be interpreted and understood to read that no motor vehicle not conforming to emission standards Bharat Stage-VI shall be sold or registered in the entire country with effect from April 1, 2020. The part of the rule extending time for registration of vehicle beyond March 31, 2020 is violative of Article 21 as any extension of time in introducing new norms adversely affect health of citizens.
Mischief rule uncalled for when words are capable of one meaning only- Unless there is any ambiguity in the word to be construed, the application of the mischief rule is uncalled for. Gajendragadkar, J., in Kanailal v. Parmanidhi, AIR 1957 SC 907, had stated that the recourse to object and policy of the Act or consideration of the mischief and defect which the Act purports to remedy is only permissible when the language is capable of two interpretations.
In selecting, however, the true meaning, regard must be had to the consequences which result from adopting the alternative construction. A construction that results in hardship, inconvenience, injustice, absurdity or anomaly, etc.,has to be avoided and preference be given to such construction which avoids such results. The rule has no application when the words are susceptible of one meaning only.
To sum up, Heydon’s case is applicable only when the words in question are ambiguous and reasonably capable of more than one meaning. This rule does not apply where the word is susceptible of one meaning and no alternative construction is reasonably open.
Difference between Mischief Rule and Literal Rule.-(1) Mischief Rule may be said to cover a wide purpose of interpretation whereby previous mischief is located and its remedy is sought to be implemented whereas in literal rule the strict type of interpretation is resorted to.
(2) In Mischief Rule interpreter goes beyond the language used in the statute whereas in Literal interpretation interpreter confines himself within the language used in the statute.
(3) The Mischief Rule gives the most discretion to judges whereas in Literal Rule the plain meaning of the words used is the mode of interpretation. The interpreter in Literal Rule confines himself to words used and no more.
(4) In Literal Rule the natural and grammatical meaning of the words is adhered to and if this leads to some absurdity, the ordinary or grammatical sense of the words may be modified so as to avoid absurdity or inconsistency but no further, whereas in case of Mischief Rule, to eradicate the mischief, the remedy is sought as a normal process and modification if needed are usually resorted to.
(5) The Literal Rule is best suited where strict interpretation is the convention just as in penal statutes and taxing statutes the words used are given the meaning confining to the purpose and its extension is avoided whereas Mischief Rule is applied where some mischief is to be curbed as entailed in the statute and this rule is usually applied in remedial statutes.
(6) Mischief Rule may be categorized in liberal approach of interpretation while Literal Rule may be put in the category of strict approach of the interpretation where words used are confined to their ordinary or natural meaning.
(7) Where Literal Rule fails to find a suitable solution even after adopting permissible modification, some other liberal rules may be adopted but in case of Mischief Rule, its scope being very wide, no such contingency arises.
Golden Rule of Interpretation
Q. 6 (a). Describe Golden Rule of Interpretation and support your answer with case law.
OR
“Golden Rule of interpretation is that there is no Golden Rule of interpretation”. Discuss.
OR
“The so-called ‘Golden Rule’ of construction is really a modification of the literal rule”-Discuss the statement with illustrations in support of your answer.
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“The Golden Rule is a disguised version of mischief rule. “Explain the statement.
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“Sometimes to achieve the object of the statute Golden Rule is applied”-Comment.
Ans. Golden Rule of interpretation-What it means. Maxwell describes the so-called ‘golden rule’ as a modification of literal rule. This means that when the literal interpretation leads to certain absurdity or unreasonable result, it is permissible to interpret the provision of the statute in a manner so as to lead to a reasonably practicable result. Departure from the literal construction is not prohibited if it leads to gather the intention of the Legislature. According to Parker B., the language of a statute may be varied or modified to avoid absurdity or repugnance where grammatical construction leads to such absurdity or anomaly.
It is therefore suggested that the so called Golden rule is a modified literal rule of interpretation. Where literal rule of interpretation leads to certain absurdity or repugnancy or anomaly or unreasonable result, it is permissible to interprete the provision of the statute in a manner so as to lead to a reaso reasonably practicable result. In this rule the intention of legislature is discovered by adopting any way of interpretation. Due to this, the Golden rule of interpretation is remarked as there is no Golden rule of interpretation.
It may be said as defect of golden rule of interpretation that it provides adequate solution in limited cases. According to Justice Krishna Ayyar in fast changing system the Golden rule is that there is no Golden rule. The Golden rule of interpretation is the modified rule of literal or grammatical interpretation. Now-a-days mainly literal and mischief rules of interpretation are applied to determine the intention of the legislature. Mischief Rule or the rule of Heyden case is not applicable when words are capable of one meaning only.
In Directorate of Enforcement v. Deepak Mahajan, AIR 1995 SC 1775, the Supreme Court ruled that normally Courts should be slow to pronounce the Legislature to have been mistaken in its constantly manifested opinion upon a matter resting wholly within its will and take its plain ordinary grammatical meaning of the words of the enactment as affording the best guide, but to winch up the legislative intent, it is permissible for Courts to take into account the ostensible purpose and object and the real legislative intent. In cases of this kind the question is not what the words in the relevant provision mean but whether there are certain grounds for inferring that the Legislature intended to exclude jurisdiction of the Courts from authorising the detention of an arrestee whose arrest was effected on the ground that there is reason to believe that the said person has been guilty of an offence under the provision of F.E.R.A. or the Customs Act which kind of offences seriously create a dent on the economy of the nation and lead to hazardous consequences. In given circumstances, it is permissible for Courts to have functional approaches and look into the legislative intention and sometimes it may even be necessary to look behind the words and enactment and take other factors into consideration to give effect to the legislative intention and to the purpose and the spirit of the enactment so that no absurdity or practical inconvenience may result and the legislative exercise and its scope and object may not come futile.
The application of the rule is only permissible to the extent it avoids such absurdity, anomaly, or inconvenience and no further. In other words, the rule is to be applied, having regard to the consequences. This rule has no application when the words are susceptible to only one meaning and no alternative construction is reasonably open.
Illustrations-An application of this rule is well illustrated in the case of Lee v. Knopp [(1967) QB 442] where Winn, L.J., interpreted the word “stop” in Section 77 (1) of the Road Traffic Act (which requires the driver of motor vehicle to stop after an accident) to mean that the driver of the vehicle shall stop it and remain where he has stopped it for such a period of time as may be required by the persons in authority to obtain information directly and personally from him as necessary under the section.
The Supreme Court has held in Veluswami v. Raja Nainar, AIR 1956 SC 422, that a construction giving rise to anomaly should be avoided.
The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may have to be modified so as to avoid that absurdity and inconsistency, but no further. [L. Grey v.Pearson, (1857) 6 HLC 61). The principle of these rules is not limited to the interpretation of statutes alone but it has been extended to the interpretation of documents also. [Arora v. State of U..P. AIR 1964 SC 1230.]
In the case of Dilip Kumar v. State of Madhya Pradesh, AIR 1976 SC 135, it was held by the Supreme Court that if two constructions are possible upon the language of the statute, the Court must choose the one which is consistent with good sense and fairness and eschew the other which makes its operation unduly oppressive, unjust or unreasonable, or which would lead to strange inconsistent results or otherwise introduce an element of building uncertainty and practical inconvenience in the working of the statute.
In Karnail Singh v. Mohinder Kaur, AIR 2003 P & H 135, property was bequeathed by a person in favour of his three sons and the testator had deliberately disinherited his three daughters. One of the three sons of the testator died during his life time without leaving any issue and having left his widow behind him. The will was not changed by the testator who died about two years and nine months later. Interpreting the expression ‘lineal descendant’ under Section 109 of the Indian Succession Act, 1925, the Punjab and Haryana High Court applied golden rule of interpretation and held that if the testator had the intention of disinheriting the predeceased predec son’s widow, he could easily have made another will or could have executed a codicil to the existing will. Thus his intention was clear to the effect that the widow should succeed to the legacy of his predeceased son.
Inconvenience, hardship, etc. Not a criterion for evading grammatical construction- The Courts are not normally to depart from the rule of literal construction on the mere plea of inconvenience it might cause. According to Brett, L.J., the inconvenience must not only be great, but it must be an absurd inconvenience to justify departure from the rule of grammatical construction. Lord Moulton has said that there is a danger that it may degenerate into a mere judicial criticism of the propriety of the Acts of Legislature. It has been held in an English case [Young & Co. v. Mayor etc. of Leamington, (1882) 9 AC 517] that individual cases of hardship have no bearing for rejecting the natural construction. Similar view has been expressed by the Supreme Court of India in Mohan Kumar Singhania v. Union of India, AIR 1992 SC 1. The Courts are, therefore, well advised not to depart from literal or grammatical construction of the law of limitation, although it may cause inconvenience to a party.
In any event the Courts are not to resort to such construction which may result in twisting the language into a meaning which it does not bear. In giving an alternative construction the Court must not put an undue strain on the words used nor should they amend or rewrite the words in different way. The function of the Court is not to amend the law but to interpret it in a way so as “to spell out the meaning contended for out of the words actually used.”
The gist of the rule is to avoid anomalous results. The Courts should try to avoid anomalous results. In Veluswinni v. Raja Nainer, AIR 1959 SC 422, the Supreme Court observed that it is no doubt true that if on its true construction, a statute leads to anomalous results, the Courts have no option but to give effect to it and leave it to the Legislature to amend and alter the law. But when on a construction of a statute two views are possible. one which results in anomaly and the other not, it is Court’s duty to adopt the latter and not the former.
It is a well-settled rule of construction that where in an enactment two provisions cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both, and where one of the two conflicting provisions is more general, it would be advisable to construe the more general one so as to exclude the more specific. But it would be far more appropriate to give effect to all the provisions of the Act by harmonising any apparent conflict in between two or more of its provisions.
“You have to try and reconcile them” (apparently two conflicting provisions) says Lord Herschell, “as best as you may; if you cannot, you have to determine which is the leading provision and which is the subordinate provision and which must give way to the other.”
In short, that construction is to be chosen which will be in harmony with the smooth working of the system and to eschew the other which introduces uncertainty and confusion and reduces the provision of the law to a dead letter.
In Jagdish Singh v. Lt. Governor, Delhi, AIR 1997 SC 2239, it was held by the Supreme Court that in case of conflict between various provisions of the rule, harmonious construction should be made and statute or rule made thereunder should be read as to make the rule consistent. One rule cannot be used to defeat another rule in the same set of rules.
While interpreting the word ‘land’ in Entry 45 of the State List in the Seventh Schedule of the Constitution and in Sections 70 to 72 of Maharashtra Land Revenue Code, 1966 the Supreme Court observed in M/s. R.S. Rekandchand Mohata Spinning and Weaving Mills Ltd. v. State of Maharashtra, AIR 1997 SC 2591, that in construing words under Article 246 of the Constitution the most liberal construction should be put upon the words in the entries in the respective lists so that the same may have effect in their widest amplitude.
In Roxann Sharma v. Arun Sharma, AIR 2015 SC 2232, interpretation of Sections 7 and 14 of the Guardians and Wards Act, 1890 and the Proviso to Section 6 of the Hindu Minority and Guardianship Act, 1956 was involved. The Proviso to Section 6 of the Hindu Minority and Guardianship Act says that custody of infant should be ‘ordinarily’ with the mother. The Supreme Court held that the order giving interim custody to the father on the ground that the mother has not established her sustainability to be granted interim custody of the infant was not valid. The Proviso places onus on the father to prove that it is not in the welfare of the infant to be placed in the custody of his/her mother. The wisdom of the Parliament or legislature sho should not be trifled away by curial interpretation which virtually nullifies the spirit of the enactment.
Critical evaluation of the golden rule of interpretation
Q. 6 (b). “There is only one ‘golden rule’ that there is no golden rule of interpretation.” Discuss.
Ans. Critical evaluation of the golden rule of interpretation.- In Strawboard v. Karmkargana (1978) 2 Uchchatan Nyayalaya Nirnaya Patrika, 328 (338), Justice Krishna lyyar has said that in a fast changing system there is only one golden rule that there is no golden rule of interpretation. This question is based upon this statement of Justice Krishna lyyar.
The golden rule of interpretation is a modified form of the literal rule of interpretation. This rule is based upon the literal interpretation, but the result of interpretation according to this rule is different from that of literal interpretation. There are many defects in the literal interpretation, therefore, the rule of golden interpretation was discovered and thereby solution for problems arising out of literal interpretation was sought out, therefore, the title ‘golden rule’ was given to this rule.
In Becke v. Smith, (1836) 2 M & W 191, this rule was thus stated by Parke B. “It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that it is at variance with the intention of the Legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further.” It means that literal interpretation should be made, when it does not lead to absurd meaning, but if literal interpretation leads to the absurd meaning of statutory provisions, the language of such provisions may be modified, so as to avoid such inconvenience. This rule of interpretation was recognised as “the golden rule”.
In Amar Singh v. State of Rajasthan, AIR 1955 SC 504, explaining the utility of the golden rule, the Supreme Court pointed out that if there is no ambiguity in the provisions of any section of a statute, the general and natural meaning of the words should be taken. The Court cannot interpret the words not found in the section. The Court has no power to add the new provisions in the section so as to make it more reasonable and fair. It is beyond the jurisdiction of the Court to comment upon the policy of the Legislature. It is not the function of the Courts to look into the background of the circumstances which led to the enactment of the Act. But if there may be two meanings of the words used, that meaning has to be accepted which is in consonance with the purpose of the Act otherwise the purpose of the Act may be frustrated. Although at the time of the interpretation of a statute, the Court cannot take in its hands the legislative function of the Legislature, it is its duty to interpret it in accordance with the general intention of the Legislature with reference to the statute. This would be appropriate only when the literal interpretation defeats the purpose of the Act.
The limits of the golden rule have been defined. In Gray v. Pearson, (1857) 6 HLC 61. p. 61, the golden rule was declared to be the best rule of interpretation and it was stated that the words should be modified to that extent which does not lead to unreasonable result and which may end the contradictions between the provisions of the statute.
Substitution of the three rules of interpretation by harmonial and beneficial interpretation
Q. 6 (c). The three rules of interpretation-Literal, mischief and golden are now-a-days only theoretical reading and have been substituted by harmonial and beneficial interpretation.”Examine.
OR
Narrate modern approach to interpretative process in the light of the statement “First it was the spirit and not the letter then the letter and not the spirit and now the spirit and letter”.
Ans. The literal, mischief and golden rules, of interpretation- are only theoretical reading and substitutions of these rules by harmonious and beneficial interpretation. The above rules of interpretation literal, mischief and golden-cannot be called absolute rules in themselves. In the present day, their significance is mere theoretical. On the one hand, these rules have some positive aspects, on the other, these are defective in some respect.
The Court can discover the intention of the legislature by looking into the statute as a whole. It can take into account the general historical background of earlier statutes, parliamentary debates, Governmental documents and the opinion of Law Commission in order to find out the intention of the Legislature. The Court may interpret a statute taking into consideration the consequences of the interpretation.
Literal interpretaion is based on the principle that the language used in the statute should be interpreted in its ordinary sense. In A.P. Gas Power Corporation v. A.P. State Regulatory Commission, (2004) 10 SCC 511, the Apex Court observed that the literal interpretation signifies strict interpretation.
Literal interpretation has become inappropriate in relation to modern social statutes, because often the statutes expressly lay down full schemes and policies.
Mischief rule is also called Heydon’s rule, because this rule was propounded for the first time in the Heydon’s cuse (1584) 3 Co. R,70, which is as follows:-
“For the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered-
(1) what was the common law before the making of the Act,
(2) what was the mischief and defect for which the common law did not provide,
(3) what remedy the Parliament had resolved and appointed to cure the disease of the commonwealth, and
(4) the true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief and advance the remedy and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act pro bono publico.”
When the mischief rule was propounded, this rule was appropriate for finding out solution for the limited number of the statutes of that times. But now-a-days the scope of the statutes is widening to a large extent and their social dimension is increasing. Therefore, it may be said that the Heydon’s rule has become need of the day-particularly in context of a welfare State where State not only maintains law and order but also indulges in many welfare schemes for the public at large.
The golden rule of interpretation is the modified form of the literal rule. This rule was thus presented by Parke B in Becke v. Smith, (1836) 2 M and W 191, in this way, ” It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used and to the grammatic construction unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance in which case the language may be varied or modified, so as to avoid such inconvenience, but no further.”
The golden rule of interpretation is defective on many points and provides an adequate solution in limited cases only. According to Krishna Ayyar, J., in the fast changing system the golden rule is that there is n golden rule.
The presumptions of interpretation. The Courts have accepte many maxims for the purposes of interpretation. Similarly, many presumptions and other principles are used in this connection.
For coming to a just conclusion in finding out the purport and meaning of a given provision the following presumptions are applied according to the need-
(1) the presumption of strict interpretation of penal statutes in favour the citizens:
(2) the presumption that the statute was not intended to change thei common law;
(3) the presumption that interpretation of the civil law of the country would be consistent with the international law;
(4) the presumption that the Parliament had no intention to exclude the jurisdiction of the Courts;
(5) the presumption that the penal statutes require mens rea as a essential requisite of an offence;
(6) the presumption that the statute has no retrospective effect;
(7) the presumption that the statute is constitutional.
(8) for coming to a just conclusion, the whole of the statute should be read.
Lord Devlin disapproved the view that the rule of interpretation according to which the statute should be given its natural and ordinan meaning is essentially defective.
In the interpretation of the statutes, the Courts perform three kinds of roles-
(1) they attempt to find out the intention of the legislature,
(2) they give effect to what the legislature has said and not to what intended to say,
(3) they interpret the words in a meaningful way in the change circumstances.
In Superintendent and Legal Remembrancer v. Corporation of Calcutta AIR 1967 SC 997, it was laid down by the Supreme Court that the rules of interpretation are not the rules of law. They only give guidelines and those rules which are not useful in fulfilling the objects of the statute may be disregarded by the Courts and in their place new rules may be originated. The rules of interpretation are merely servants and not master. The function of judge is to find out proper and relevant rules of interpretation in order to establish harmony between the words and spirit of a statute. This rule of interpretation is well established that the Court would make harmonious construction of the statutes. In Tarabuddin Hazi Niyoj Ahn Commissioner, AIR 1970 All. 224, it Ahmad v. The was observed by the Allahabad High Court that the Court should adopt harmonious construction so as to give effect to the various provisions of statute.
The Courts adopt the principle of beneficial construction in order to give effect to the objects of an Act. In modern times, the legislature often enacts beneficial Acts. Now-a-days the enactment and implementation of beneficial legislation has come within the domain of the State on accourt of the concept of welfare State. The Courts adopt liberal view in the interpretation of such Acts. In Union of India v. Pratap Kumari, (1995) 2 SCC 736, the Supreme Court expressed the view that the Court is entitled to adopt liberal approach towards those persons, who are provided benefit by a statute.
To discover the legislative intent the following three points should be referred:
1. The context and object of statute;
2. The nature and scope of the relevant provisions; and
3. Whether the damage suffered is not guarded.
The changing trend in interpretation. The trend of interpretation has been changed according to need of securing the justice. In case of Kehar Singh v. State of Delhi Administration, AIR 1988 SC 1883, it has been observed that in past the Judges and Lawyer spoke of the literal rule (Golden rule) or Grammatical rule by which statutes were to be interpreted according to ordinary sense of the words used therein. They took literal meaning unmindful of the consequences even though such determination gave rise to unjust result which legislature never intented.
From the past several years Golden rule has been given a go-by. The Courts now look to the intention of the legislature or the purposes and objects of the statute. The Court would look and examine the Act as a whole and apply the rational meaning of the words. It would look to the mischief which the legislature intended to redress. It is one of the safest guide to interpretation of statutes.
In the light of the above it is concluded that “First it was the spirit not the letter, then the letter and not the spirit and now the spirit and letter. The three rules of interpretation i.e., Literal. Golden and Mischief are now a days fonly theoritical reading and have been substituted to harmonial and beneficial interpretation.
Q. 6 (d). Distinguish between Literal Rule and Golden Rule.
Ans. Distinction between Literal Rule and Golden Rule.- Differences between Literal Rule and Golden Rule are following-
(1) Literal Rule supports the natural and ordinary or popular meaning of the words used in a statute while Golden Rule supports the convention tha through interpretation such consequences should be preferred which lead to justice and benefits for the persons affected by the provision of the statute. 1 does not mean that under the golden rule to give benefit to the accused the interpretation should curtail the punishment where words used for it are very clear and convey no doubts about the meaning intended by the legislature.
(2) In Literal Rule the plain meaning of the words are given that meaning which is devoid of absurdity. In Golden Rule words are given than meaning the consequences of which lead to general welfare.
(3) The Golden Rule starts from the point at which Literal Rule strictly speaking withdraws itself because of absurd results and modification comes in strictly speaking under the aegis of Golden Rule though under the umbrella of Literal Rule.
(4) The Golden Rule is dynamic and is used to avoid absurd results and for this uses wide connotations of the words, while Literal Rule confines itself to the ordinary, popular or grammatical meaning of the words till they do not lead to absurdity.
(5) Golden Rule permits creativity to the Judges and interpreters to save the provision from becoming useless, inconsistent, repugnant to the purpose of the statute while Literal Rule is successfully applied where the words of the statute convey a plain, clear and unambiguous meaning.
(6) Golden Rule may be put in liberal category as it tries to avoid failure of the purpose of the statute, whereas Literal Rule may be put in strict category wherein meaning of the words restrict the liability of the person to the plain meaning and no more and is aptly used in penal and taxing statutes by restricting the liability as per plain meaning of the words without any permission for their extension of the scope and use of the words so used.
(7) Golden Rule is applicable to all types of statutes to give words used a purposeful meaning while Literal Rule is usually compatible to statutes which require a strict interpretation to save people from undue harassment.
Q. 6 (e). Make a comparative analysis of Golden Rule and Mischief Rule of Interpretation.
Ans. Comparative analysis of Golden Rule and Mischief Rule of Interpretation. The Golden Rule was defined by Lord Wensleydale in Grey v. Pearson, (1857) 6 HLC 61, as “the grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary seuse of the words may be modified so as to avoid the absurdity and inconsistency, but no further.
Thus, Golden Rule is a modification of the Literal Rule to be used to avoid an absurd outcome.
The main advantage of the Golden Rule is that drafting errors in statutes can be corrected immediately.
A major disadvantage of the Golden Rule is that Judges can technically change the law by changing the meaning of words in statutes.
The Mischief Rule gives Judges the most discretion of all. The four principles to follow were expressed in Heydon’s case, (1584) 3 Rep. 7b.
1. What was the common law before the making of the Act?
2. What was the mischief and defect for which the common law did not provide?
3. What remedy Parliament hath resolved and appointed to cure the disease of the Commonwealth?
4. The true reason of the remedy, and then the office of the Judges is to make such construction as shall suppress the mischief and advance the remedy.
The rule is intended to rectify ‘MISCHIEF’ in the statute and interpret the statute justly. The Mischief Rule uses common law to determine how the statute is interpreted.
The main advantage of the Mischief Rule is that it closes loop-holes in the law and allow law to develop.
The main disadvantage of this rule is that it creates a crime after the event has taken place. It allows Judges to apply their opinions and prejudices an infringement of the principle of separation of powers.
Beneficial construction of a statue
Q. 7. When beneficial construction of statute is permissible under the rules of interpretation? Cite any decided case in support of your answer or elucidate the statement, “Beneficial construction is a tendency rather than a rule”.
Ans. Beneficial construction of a statute. Beneficial construction of a statue is not a rule of law. A strict or liberal construction is simply a means by which the scope of a statute is extended or restricted in order to convey the legislative intent. If the general object of a statute is to benefit a particular class of persons, and there is any provision in such a statute which is ambiguous and capable of two meanings, one of which would preserve the benefit and another of which would take it away, the meaning, which preserves it should be adopted. [Mahadeo Lal v. Administrator-General of W.B., AIR 1960 SC 936].
Beneficial construction is a method of interpretation whereby a liberal process is adopted to give effect to the declared intention of the Legislature. This is resorted to in cases where the strict meaning of the words used in a statute, if given a technical interpretation might defeat the object of the legislation. Beneficial construction is a tendency rather than a rule (Maxwell-Interpretation of Statutes, 12th Edition, Page 92).
It is well-settled that a beneficient provision of legislation must be liberally construed so as to fulfil the statutory purpose and not to frustrate it. (Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd., AIR 2003 S.C. 511)
As per Maxwell (Interpretation of Statutes, 8th Edn.), a beneficial construction should be placed upon the provisions of a statute, when that appears to be in consonance with its object. Where a statute encroaches on the rights of the subjects whether as regards persons or property, it should be interpreted in a way so as to respect such rights. In Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. (AIR 2003 SC 511) it was held that a beneficial provision of legislation must be liberally construed so as to fulfil the statutory purpose and not to frustrate it.
Modern legislation in the social and industrial field is actuated with some policy and broadly speaking with some beneficial object behind it. It is a tendency of the Courts to give beneficial construction to a statute which brings into effect some type of social reform by improving the conditions of certain classes of people who may not have been fairly treated in the past. Industrial legislation provides a fruitful field for the application of the tendency towards beneficial construction. The general principle of construing a provision of an industrial enactment is that it must be construed in a broad and common sense way.
In Indian Medical Association v. V.P. Santha, AIR 1996 SC 550, the Supreme Court held that service rendered by a medical doctor is a service within the meaning of Section 2 (0) of the Consumer Protection Act, 1986.
In Food Inspector v. Seetaram Rice Mills [1974 KLT 685], the rule of strict and liberal construction has been discussed as follows: “distinction between a strict and a liberal construction has almost disappeared with regard to all categories of statutes, so that all statutes, irrespective of the fact that they are penal or not are now construed by substantially the same rules. They have to be construed with reference to the true meaning, and the real intention of the legislature.”
In Noor Saba Khatoon v. Mohammad Quasim, AIR 1997 SC 3280, it was held that a subsequent law cannot be interpreted to defeat the effect of a beneficial legislation except by a clear provision.
Beneficient construction is normally given to a remedial enactment which is meant for particular class of people. For instance, in construing a beneficial legislation meant for protection of tenants, if there is any doubt about the meaning of any word or clause, that doubt should be resolved in favour of the person for whose benefit the Act was passed. [Jiva Bhai Purshottam v. Chhajan Karson & Others, AIR 1961 SC 1491].
In Spring Meadow Hospital v. H. Ahaluwalia, AIR 1998 SC 1801, it was held that if the parents have hired the services of a hospital for the benefit of their child they and the child can maintain independent actions ngainst the hospital for deficient services.
Beneficient construction where mischief is to be remedied.- Where a mischief is to be remedied by legislation, the tendency is always to make such construction as shall suppress the mischief and advance the remedy, and to this end a certain extension of meaning of the provisions of such statutes is not uncommon.
It is not only a modern tendency to give a beneficient construction to a remedial enactment, but this tendency had also existed in the past. In 1890 Lord Esher stated that even where the usual meaning of the word falls short of the object of the legislature, a more extended meaning may be attributed to them, if they are fairly susceptible of it.
In fact, a provision in an enactment which is clearly designed to afford relief normally receives a benevolent construction unless in any case it is subversive of the intent of the legislature.
To construe an enactment which is intended to provide social justice the Court should adopt what is known as ‘beneficient construction’. If two constructions are possible, preference must be given to one which sustains the intent of the Legislature and not otherwise. As per Wilberforce, J. ‘One is justified in extending the meaning of a sub-clause of a section so as to fit in with the evident purpose of a section.”
In Dahiben v. Vasanji Kewalabhai, AIR 1995 SC 1215, the appeal was basically concerned with the interpretation of the Bombay Tenancy and Agricultural Land Act, 1948 as amended by Bombay Act No. 33 of 1952. It was held that being concerned with a legislation beneficial to tenants, the Courts are required to give a liberal interpretation and the amendment of 1952 would relate back to the Act as enacted. In any case the amendment would apply to the suit which was pending when the amendment had come into force.
In Smt. Shashi Gupta v. LIC of India, AIR 1995 SC 1367, where a circular was issued by the respondents, it was held that an interpretation beneficial to the policy holder would be adopted.
In Regional Executive Kerala Fishermen’s Welfare Board v. M/s Fancy Food, AIR 1995 SC 1620, the Supreme Court held that the definition in a welfare legislation, the Kerala Fishermen’s Welfare Fund Act, 1985, directed towards promoting welfare of fishermen, which is in consonance with Article 39 of the Constitution must be construed to achieve the objective of the Act., When the word is not defined in the statute its meaning has been gathered from the context in which it has been used.
In Re: Exploitation of Children in Orphanges in the State of T.N. v. Union of India, AIR 2019 SC 2546, the Supreme Court held that the definition of a “child in need of care and protection” given in Section 2 (14) of the Juvenile Justice (Care and Protection of Children) Act, 2015 should be given a broad and purposeful interpretation. It ought not to be treated as exhaustive but illustrative and furthering requirements of social justice. This understanding would also be in consonance with Article 40 of the Convention of the Rights of the Child. It must also include victims of sexual abuse or sexual assault harassment under the POCSO Act as also victims of child trafficking. Such children must also be given protection under the Juvenile Justice (Care and Protection of Children) Act, 2015 alongwith victims under the Immoral Traffic (Protection) Act, 1956. The Court issued fifteen guidelines for protection of rights and welfare of children and proper implementation of beneficial legislation.
It, therefore, follows, from all these decisions and observations, that it is permissible to give an extended meaning to words or clauses in enactments which are intended to afford relief or provide social justice, but, this can only be done when two constructions are reasonably possible, and one fits in with the purpose of the Act.
Interpretation of Remedial Statute
Q. 8 (a). What are the rules of interpretation of Remedial Statute? Explain with examples.
OR
Discuss the rules of interpretation of Remedial Statute with reference to the leading cases.
OR
How the Remedial Statutes are interpreted? Support your answer with the decided cases.
Ans. Meaning of Remedial Statute. Remedial Statutes are also called welfare, or beneficient or social justice oriented legislation. Those legislations which are directed to cure some immediate mischief and bring into effect some type of social reform by ameliorating the condition of certain class of persons come under the category of Remedial Statutes.
General Principles regarding interpretation of Remedial Statute. In interpreting a Remedial Statute, the Court should give to it the widest operation which its language permits. The Court in such cases has to see only that the particular case is within the mischief to be remedied and falls within the language of the enactment. [Sayad Mir Ujmuddin Khan v. Ziaulnisa Begum [(1879) ILR 3 Bom. 422].
The rule of liberal construction of a beneficial statute should be applied “without rewriting or doing violence to the enactment for the sake of resolving any ambiguity and the literal construction when the language is clear and explicit cannot be given a go-bye.” [Steel Authority of India Ltd. v. National Union Water Front Workers, AIR 2001 SC 3527].
The rule of liberal construction of a beneficial statute does not mean that the words used in the enactment may be given unnatural meaning nor does it permit the raising of any presumption that protection of widest amplitude must be deemed to have been conferred upon those for whose benefit the legislation may have been enacted. The Court will also not readily read words which are not there and introduction of which will restrict the rights of persons for whose benefit the statute is intended. [State of Tripura v. Roopchand Das, (2003) 1 SCC 421].
The liberal construction must ultimately flow from the words used in the section. If the words used in the section are capable of two constructions one of which is shown patently to assist the achievement of the object of the Act, Courts would be justified in preferring that construction to the other which may not be able to further the object of the Act. But, on the other hand, if the words in the section are reasonably capable of only one construction, the doctrine of liberal construction can be of no assistance.” [Buckin-gham and Carnatic Co. v.Venkatiah, AIR 1964 SC 12711. Where a clear restrictive word has been used and limits are clear, in the name of beneficial interpretation, the restriction and limits should not be crossed, e.g., where ‘poor SC & ST class’ is covered, the poor OBC class should not be included in the guise of beneficial interpretation.
In interpreting Section 2 (1) (d)(II) of the Consumer Protection Act, 1986 the Supreme Court has held in Spring Meadows Hospital v. H. Ahaluwalia, AIR 1998 SC 1801, that parents who hire the services of a hospital and their child for whom the services are hired are both consumers and they can claim damages independently.
Q. 8 (b). What are differences between a Declaratory and Remedial statute?
Ans. Differences between Declaratory and Remedial statute.- Both the statutes rectify certain misgivings but at different fields and by different modes. The difference between the two is as follows:
(1) A Declaratory statute is a statute to remove doubts either in the common law or in the statutory law. When the Courts and general public give a meaning different from the intended meaning of the legislature to an expression used in a statute, then to rectify the meaning and remove the doubts, the legislature passes a Declaratory statute declaring the correct meaning of the expression which is creating doubt and is being interpreted differently, whereas in Remedial statute a new remedy or favour is conferred to the persons governed by a former statute.
(2) In Declaratory statute the meaning of an expression used in a previous statute is corrected, whereas in Remedial statute a new remedy is provided.
(3) The scope of Declaratory statute is limited to correct the meaning of an expression, while the scope of Remedial statute is wide as it gives new remedies to the changing needs of the society.
(4) The main object of Declaratory statute is to remove doubts to the meaning of an existing law, or to modify or rectify an interpretation which legislature never intended, whereas the Remedial statute gives new remedies which were not incorporated in the existing statute to cope with socio. economic needs which were not visualised.
(5) Declaratory statutes do not create substantive rights while Remedial statutes create new substantive rights as remedy which were lacking in the former statute.
(6) A Declaratory statute declares the law as it is and as it was when the Act came in force, while Remedial statute provides new remedies which were not provided for in the former statute.
(7) A Declaratory statute has retrospective operation when it corrects the meaning of the expression from the date the former statute came into force, though already decided cases are not allowed to be reopened.
A Remedial statute by giving new remedies usually covers prospective operation, though when it is of restraining nature it may have retrospective operation but prospective implementation of new remedies provided by the Remedial statute is generally preferred.
(8) A Remedial statute could be enlarging as well as restraining in regard to remedies as per needs of the society, whereas the Declaratory statute in removing the doubt of the meaning of the expression tries to give intended meaning which usually enlarges the span and scope of the statute in comparison to the former statute.
Interpretation of Taxing Statute
Q. 9. Explain the Rules of Interpretation of Taxing Statutes.
OR
Why should a taxing statute be strictly construed? Give your reasons and illustrations in support of your answer.
OR
What elements should be taken in consideration while interpreting a taxing statute?
Ans. General Principle of Interpretation of Taxing Statutes.- A taxing statutes has to be interpreted in favour of assessees. The general principle of interpretation of a taxing statute is that the language of the statute is not to be either stretched in favour of State or narrowed in favour of tax-prayer.
(a) The rule is one of the strict construction and it should be clearly established that the liability to taxation exists.
(b) Before the tax is levied the conditions precedent should be strictly complied with. The Supreme Court has stated that there is no equity about a tax; there is no presumption about tax; nothing has to be read and nothing has to be implied. One has only to look fairly at the language used. [Income Tax Commissioner v. Shahzadanand, AIR 1966 SC 1342].
(c) In interpreting a taxing enactment the Court should give the ordinary and natural meaning of the words used in the Act. In Fernandes v. State of Kerala [AIR 1957 SC 657] it has been held that for a person to be taxed he must be brought not only within the spirit but also within the letter of law. The liability to pay tax must be clearly expressed in the enactment.
Statutory backing is necessary for imposition of tax. [The Tata Iron and Steel Co. Ltd. v. Collector, Central Excise, AIR 2003 SC 250). Merely by an executive order which is not supported by any statutory provision, no welfare impost as a compulsory deduction from advertisement can be made. [Sri Digvijay Cement Co. Ltd. v. Union of India, (2003) 2 SCC 614.]
In Nathu Ram Agrawal v. State of M.P. [AIR 2000 SC 1091, the Supreme Court observed that the intention of the legislature in a taxing statute is to be gathered from the language of the provisions particularly where the language is plain and unambiguous.
In interpreting a taxing statute, one must have regard to the strict letter of the law. If a person sought to be taxed comes within the letter of the law he must be taxed. (M/s Geo Mitter & Co. Pvt. Ltd. v. State of M.P., AIR 2004 S.C. 3552)
In a taxing statute, it is not possible to assume any intention or governing purpose of the statute more than what is stated in the plain language.
But if the words are clear, they must be given full effect. [Westward Television v. Hart, (1968) 3 WLR 480]
Exemption under Fiscal Statute. So far as the interpretation of exemption provisions under fiscal statute is concerned these are to be interpreted according to the rule of strict as well as liberal construction. Both are necessary to be involved at different stages of interpreting exemption provision. [Union of India v.M/s Wood Papers Ltd., AIR 1991 SC 2049].
Plain meaning of the words to be adopted. The crux of the problem is the evasion of tax by a tax-payer which he might do through the loopholes of the language used. It is not the function of the Courts to plug the loopholes by straining the language of a taxing statute, or by giving it an unnatural meaning. Lord Reid said in W.M.Cory & Son Ltd. v. I.R.C.. ((1965) 1 All ER 865 (HL)] “The words of a taxing Act must never be stretched against a tax-payer.”
In the case of M/s Annapurana Biscuit Manufacturing Co., Kanpur v. Commissioner of Sales Tax, AIR 1981 SC 1656 (1657), Supreme Court expressed that while interpreting a fiscal statute, the words used in a law imposing a tax should be construed in the same way in which they are understood in ordinary parlance in the area in which the law is in force.