UNIT III

1. Primary Rules of Construction

2. Secondary Rules of Construction
3. Principles of Constitutional Interpreter
Interpretation is the method by which the true sense or the meaning of the word is
understood. The meaning of an ordinary word of the English language is not a question of
law. The proper construction of statute is a question of law. The process by which a judge (or
indeed any person, lawyer or layman, who has occasion to search for the meaning of a
statute) constructs from the words of a statute book, a meaning which he either believes to be
that of the legislature, or which he proposes to attribute to it, is called ‘interpretation’. The
operation of statute, is not automatic, and can never be so. Like all legal rules, it has to
operate through application- in other words, through the interpretation of the courts. The art
of interpretation is the ‘art of proliferating a purpose’. The interpretation of statutes is a
science by itself. A statute is an edict of the legislature and the way of interpreting or
construing it is to seek the intention of its maker. A legislative provision is to be construed
according to the intent of author that makes it.

There are three major rules of interpretation of statutes. They are:

1. Literal Rule
2. Golden Rule
3. Mischief Rule

Literal Rule:

Literal Interpretation of a statute is finding out the true sense by making the statute its own
expositor.

The Literal Rule, also known as the Plain-Meaning rule, is a type of statutory construction,
which dictates that statutes are to be interpreted using the ordinary meaning of the language
of the statute unless a statute explicitly defines some of its terms otherwise. In other words,
the law is to be read word for word and should not divert from its true meaning. It is the
mechanism that underlines textualism and, to a certain extent, originalism. To avoid
ambiguity, legislatures often include "definitions" sections within a statute, which explicitly
define the most important terms used in that statute. But some statutes omit a definitions
section entirely, or (more commonly) fail to define a particular term. The plain meaning rule
attempts to guide courts faced with litigation that turns on the meaning of a term not defined
by the statute, or on that of a word found within a definition itself. According to the plain
meaning rule, absent a contrary definition within the statute, words must be given their plain,
ordinary and literal meaning. The first and most elementary rule of construction is that it is to
be assumed that the words and phrases of technical legislation are used in their technical
meaning if they have acquired one, and otherwise in their ordinary meaning, and the second
is that the phrases and sentences are to be construed according to the rules of grammar. The
words of a statute must prima facie be given their ordinary meaning. Where the grammatical
construction is clear and manifest and without doubt, that grammatical construction ought to
prevail unless there be some strong and obvious reason to the contrary. When there is no
ambiguity in the words, there is no room for construction. No single argument has more
weight in statutory interpretation than the plain meaning of the word. When the language is
not only plain but admits of but one meaning the task of interpretation can hardly be said to
arise. The duty of court of law is simply to take the statute as it stands, and to construe its
words according to their natural significance. If the words of the statute are in themselves
precise and unambiguous, then no more can be necessary than to expound those words in
their natural and ordinary sense. It is an elementary principle of construction of statutes that
the words have to be read in their literal sense. The courts are enjoined to take the words as
used by the legislature and to give them the meaning which naturally implies. If the language
used by the legislature is clear and unambiguous, a court of law at the present day has only to
expound the words in their natural and ordinary sense; ‘Verbis plane expressis amnino
standum est’

Intention of the Legislature:

The rule of construction is “to intend the legislature to have meant what they have actually
expressed.” The object of all interpretation is to discover the intention of the Parliament, but
the intention of the Parliament must be deduced from the language used." If the language of
the statute is clear and unambiguous, the court must give effect to it and it has no right to
extend its operation in order to carry out the real or supposed intention of the legislature. It is
a settled principle of interpretation that the court must proceed on the assumption that the
legislature did not make a mistake and that it did what it intended to do. If the result of the
interpretation of a statute by this rule is not what the legislature intended, it is for the
legislature to amend the statute, rather than for the courts to attempt the necessary
amendment by investing plain meaning with some other than its natural meaning to produce a
result which it is thought the legislature must have intended. If any statutory provision is
capable of only one construction, then it would not be open to the court to put a different
construction upon the said provision, merely because the alternative construction would lead
to unreasonable or even absurd consequences. If the words are clear, they must be applied,
even though the intention of the legislator may have been different or the result is harsh or
undesirable. The literal rule is what the law says instead of what the law means. It is
elementary that the primary duty of a court is to give effect to the intention of the legislature
as expressed in the words used by it and no outside consideration can be called in aid to find
that intention. When the language of the law admits of no ambiguity and is very clear, it is
not open to the courts to put their own gloss in order to squeeze out some meaning which is
not borne out by the language of the law.

Subsidiary rules of literal interpretation:

Casus Omissus

It is an application of the same principle that a matter which should have been, has not been
provided for in a statute cannot be supplied by courts, as to do so will be legislation and not
construction. But there is no presumption that a casus omissus exists and language permitting
the court should avoid creating a casus omissus where there is none.

In State of Jharkhand v. Govind Singh (AIR 2005 SC 294) certain provisions of the Forest
Act, 1927 were in question. Section 52(3) and 68 of the Forest Act, 1927 as amended in Bihar
provide for Confiscation of Vehicle used in a forest offence and do not provide for release of
the vehicle on payment if fine. The vehicle could be released only when the offence is
compounded and compensation money and full value of the vehicle is paid. It was therefore,
not possible to read a power to levy a fine in lieu of confiscation and release the vehicle.

The Supreme Court in Bangalore Water Supply v. A. Rajappa (AIR 1978 SC 548) approved
the rule of construction stated by Denning, L.J. while dealing with the definition of ‘industry’
in the Industrial Disputes Act, 1947. The definition is so general and ambiguous that Chief
Justice of India, J. Beg said that the situation called for “some judicial heroics to cope with
the difficulties raised”. K. Iyer, J., who delivered the leading majority judgment in that case
referred with approbation the passage extracted above form the judgment of Denning, L.J. in
Seaford Court Estates Ltd. v. Asher ((1949) 2 All E.R. 155) In this connection it is pertinent
to remember that although a court cannot supply a real casus omissus it is equally clear that it
should not so interpret a statute as to create casus omissus when there is really none.
The express mention of one person or thing is the exclusion of another. Where the statutory
language is plain and the meaning clear, there is no scope for applying the rule. If a given
word or phrase is competent of two interpretations, the express mention of one of the
possibilities on a similar context excludes the other possibility. This rule may be used to
denote the aim or intention of the Legislature, although it would not be safe to regard it as an
obligatory rule of law. In the words of Lopes, L.J this maxim is “a valuable servant but a
dangerous master”.

Section 5 of the Transfer of Property Act, 1882 defines “transfer of property”, which means,
“an act by which living persons conveys property, in present or future, to one or more other
living persons or to himself in and one or more other living persons and to “transfer property”
or to himself is to perform such act.” The next paragraph provides that in this section “living
person” includes a company or association or body of individuals whether incorporated or
not. This clearly provides that “living person” not only means an individual or human being
but can also refers to a company or association or body of individuals whether incorporated
or not. However, this rule may not always provide the answer to problems of construction. It
is often the result of inadvertence or accident that this principle is applied and the maxim
ought not to be applied when its application, having regard to the subject matter to which it is
to be applied, leads to inconsistency or injustice. This maxim is also not used to extend the
operation of a statute beyond the operation of a statute beyond the provision that it actually
makes, e.g., a law enacted by Parliament for A, what is already a law for A and others, the
new law will not change the law for others.

Judicial Decisions:

S.A Venkatraman v. State (AIR 1958 SC 107)

The court said that this case dealt with Section 6 of the Prevention of Corruption Act. It was
to do with taking a sanction from an appropriate authority. It considers only the present
working employees as employees, those who have retired are not considered as employees.
The court said, “In construing the provisions of a statute it is essential for a court, in the first
instance, to give effect to the natural meaning of the words used therein, if those words are
clear enough.”

Ramavtar Budhaiprasad v. Assistant Sales Tax Officer (AIR 1961 SC 1325)

The Supreme court was faced with a question with the meaning of “vegetable”, as it had
occurred in the C.P and Berar Sales Tax Act, 1947 as amended by Act of 1948, whether the
word vegetables included betel leaves or not. The Supreme Court held that “being a word of
everyday use it must be construed in its popular sense”. It was therefore held that betel leaves
were excluded from its purview.

Harbhajan Singh v. Press Council of India (AIR 2002 SC 1351)

Sub- section 7 of section 6 of the Press Council Act, 1978 provides: ‘A retiring member shall
be eligible for renomination for not more than one term.’ The Supreme Court applied the
literal and grammatical meaning of these words and held that the provision applied to a
member “just retiring” and not to a retired member and that a retired member who had held
office for two terms sometime in the past is not debarred from being nominated again.

Vemma Reddy Kumaraswamy Reddy v. State of Andhra Pradesh ((2006) 2 SCC 670)

The dispute was regarding the excess of land possessed by the appellant, and this was
surrendered by them, however it had cashew-nut plantation. The trees in the surrendered land
were fruit bearing. The court stated that in construing if it was plain and ambiguous than the
primary rule of interpretation was supposed to be used. The Andhra Pradesh Land Reforms
(Ceiling on Agricultural Holdings) Act 1973 was referred to for the compensation of the land.

Golden Rule:

It is the modification of the literal rule of interpretation. The literal rule emphasises on the
literal meaning of legal words or words used in the legal context which may often lead to
ambiguity and absurdity. The golden rule tries to avoid anomalous and absurd consequences
from arising from literal interpretation. In view of the same, the grammatical meaning of such
words is usually modified. The court is usually interested in delivering justice and in order to
foresee the consequences of their decisions the golden rule is usually applied. This rule of
interpretation aims at giving effect to the spirit of the law as the mere mechanical and
grammatical meaning may not be sufficient.

Lord Wensleydale in Grey v. Pearson (1857) stated that: “the grammatical and ordinary
sense of the words is to be adhered to, unless that would lead to some absurdity, or some
repugnance or inconsistency with the rest of the instrument, in which case the grammatical
and ordinary sense of the words may be modified, so as to avoid that absurdity and
inconsistency, but no further.”
Whenever the grammatical construction cannot be given without any doubt only then shall
the golden rule of interpretation be applied bearing in mind the consequences of the decision
given. Language of the law is usually an external manifestation of the intention of the
legislature underlying the law for which the golden rule is used. This rule of interpretation is
used on the basis of discretion of the judges on giving due consideration to the consequences
of the judgment given by them. An example of the same is S. 125 of the CrPC which deals
with maintenance given to women. The court while interpreting the term ‘wife’ included
those women who have entered into bigamy, talak shuda women and divorced women. The
court has stated that even though a woman may have relinquished her rights on divorce, she
may claim maintenance u/s 125 as she will she be regarded as a ‘wife’

Justice Holmes stated, “A word is not crystal, transparent and unchanged. It is the skin of the
living thought and it may vary greatly in colour and content according to the circumstances
and the time in which the word is used.”

Further, in the case of Kartar Singh v. S.O. Punjab (1963 SC 174) under the rent control act
while interpreting ‘the landlord requires his land for his bona fide own use’, the courts stated
that that his own use would include the even the requirements of the landlord’s son’s use.

Thus, through this rule of interpretation, it becomes evident that, the text of law along with
the context in which it is applied, must be given due consideration.

Purposive Interpretation (Mischief Rule):

The phrase “purposive interpretation” occurs often in court decisions and legal literature
alike. The common thread running through most references to purposive interpretation is the
understanding that “purpose” is a subjective term. It reflects the intention of the text’s creator.
Bennion, who devotes a lengthy chapter to purposive interpretation notes that the historical
source of purposive interpretation is the mischief rule established in Heydon’s Case. The
purposive approach has gained support in recent years. In 1969, the Law Commission urged
the courts to implement this approach.

Purposive interpretation has at least four unique characteristics. The first portion of its
uniqueness relates to the very concept of understanding. Few scholars who deal with legal
understanding have defined the concept. It delimits the field in which a mixture of systems of
interpretation function, and it delimits the non-interpretive fields of non-interpretive
doctrines, such as the doctrine of filling in a gap (lacuna) in a legal text, the doctrine of
correcting a mistake, or the doctrine of altering a text to avoid an absurdity.

The second aspect of the system’s inimitability is its interpretive perspective. Purposive
interpretation is holistic. It views each text being interpreted as part of the legal system as a
whole. Whoever interprets one text, interprets all texts.

The third aspect of purposive interpretation’s uniqueness is the composition of its

interpretive “laws.” Most of the laws of purposive interpretation are based on neither rules
nor canons, but rather on presumptions that apply immediately and always.

Indeed, the fourth unique aspect of purposive interpretation is its open acknowledgment of
the role of judicial discretion.

Heydon’s Case:

Purposive interpretation finds its source in the Heydon’s case. The court of exchequer while
giving the judgment relied on understanding the mischief that the statute sought to remedy.

Facts: Ottery College, a religious college, gave a tenancy in a manor also called Ottery to a man
(named in the case report simply as "Ware") and his son, also referred to as Ware. The tenancy was
established by copyhold. Ware and his son held their copyhold for their lives, subject to the
will of the lord and the custom of the manor. The Wares’ copyhold was part of a parcel also
occupied by some tenants at will. Later, the college leased the same parcel to another man,
named Heydon, for a period of eighty years in return for rents equal to the traditional rent for
the components of the parcel. Less than a year after the parcel had been leased to Heydon,
Parliament enacted the Suppression of Religious Houses Act 1535 (Act of Dissolution). The
statute had the effect of dissolving many religious colleges, including Ottery College, which
lost its lands and rents to Henry VIII. However, a provision in the Act kept in force, for a
term of life, any grants that had been made more than a year before the enactment of the
statute. The Court of Exchequer found that the grant to the Wares was protected by the
relevant provision of the Act of Dissolution, but that the lease to Heydon was void.

The ruling was based on an important discussion of the relationship of a statute to the pre-
existing common law. The court concluded that the purpose of the statute was to cure a
mischief resulting from a defect in the common law. Therefore, the court concluded, the
remedy of the statute was limited to curing that defect. Judges are supposed to construe
statutes by seeking the true intent of the makers of the Act, which is presumed to be pro bono
publico, or intent for the public good.

Lord Coke described the process through which the court must interpret legislation.

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:

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.

Cases:

Smith v Hughes [1960] 1 WLR 830

The defendants were prostitutes who had been charged under the Street Offences Act 1959
which made it an offence to solicit in a public place. The prostitutes were soliciting from
private premises in windows or on balconies so could be seen by the public.
The court applied the mischief rule holding that the activities of the defendants were within
the mischief the Act was aimed at even though under a literal interpretation they would be in
a private place.
Elliot v. Grey [1960] 1 QB 367
The defendant's car was parked on the road. It was jacked up and had its battery removed. He
was charged with an offence under the Road Traffic Act 1930 of using an uninsured vehicle
on the road. The defendant argued he was not 'using' the car on the road as clearly it was not
driveable. The court applied the mischief rule and held that the car was being used on the
road as it represented a hazard and therefore insurance would be required in the event of an
incident. The statute was aimed at ensuring people were compensated when injured due to the
hazards created by others.

Royal College of Nursing v DHSS [1981] 2 WLR 279:

The Royal College of Nursing brought an action challenging the legality of the involvement
of nurses in carrying out abortions. The Offences Against the Person Act 1861 makes it an
offence for any person to carry out an abortion. The Abortion Act 1967 provided that it
would be an absolute defence for a medically registered practitioner (i.e., a doctor) to carry
out abortions provided certain conditions were satisfied. Advances in medical science meant
surgical abortions were largely replaced with hormonal abortions and it was common for
these to be administered by nurses. It was legal for nurses to carry out such abortions. The
Act was aimed at doing away with back street abortions where no medical care was available.
The actions of the nurses were therefore outside the mischief of the Act of 1861 and within
the contemplate defence in the 1967 Act.

Corkery v Carpenter [1951] 1 KB 102:

The defendant was riding his bicycle whilst under the influence of alcohol. S.12 of the
Licensing Act 1872 made it an offence to be drunk in charge of a 'carriage' on the highway.
The court applied the mischief rule holding that a riding a bicycle was within the mischief of
the Act as the defendant represented a danger to himself and other road users.

DPP v Bull [1995] QB 88 

A man was charged with an offence under s.1(1) of the Street Offences Act 1959 which
makes it an offence for a 'common prostitute to loiter or solicit in a public street or public
place for the purposes of prostitution'. The magistrates found him not guilty on the grounds
that 'common prostitute' only related to females and not males. The prosecution appealed by
way of case stated. The court held that the Act did only apply to females. The word prostitute
was ambiguous and they applied the mischief rule. The Street Offences Act was introduced
as a result of the work of the Wolfenden Report into homosexuality and prostitution. The
Report only referred to female prostitution and did not mention male prostitutes. The QBD
therefore held the mischief the Act was aimed at was controlling the behaviour of only
female prostitutes.
 Subsidiary rules of interpretation

Subsidiary rules of interpretation are subjected to the primary rules. These rules are bound by
the intention of the legislature and the context in which the words appear in the statute.

I. Noscitur a Sociis and Ejusdem Generis

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

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

Scope of the rule:

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

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

Ejusdem Generis

This is a Latin word for "of the same kind," used to interpret loosely written statutes. Where a
law lists specific classes of persons or things and then refers to them in general, the general
statements only apply to the same kind of persons or things specifically listed, this is to say,
that every general word should be given its natural meaning unless the context requires
otherwise. For example, in State of Bombay v. Ali Gulshan, the meaning of the “for any
purpose” was read ejusdem generis with the purpose of the state that accommodation of a
member for foreign consulate staff is a purpose of the union. In M. Kumar v. Bharat Earth
movers Ltd., the Supreme court observed that to invoke ejusdem generis rule, there must be a
distinct genus or category. The specific words must not apply to different objects of widely
different character but to something which can be called a class or kind of the object.

Difference between Noscitur a Socii and Ejusdem Generis:

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

To understand the difference between the two doctrines, the rule of ejusdem generis has to be
understood. In the case of Kavalappara Kottarathil Kochuni v. State of Madras (AIR 1960
SC 1080), the applicability of this rule has been stated. Here, it was said that the rule is only
to be applied when there are general words that follow other words, where these other words
belong to a particular category all those words are similar. It has also been held in this case
that the rule “… is not an inviolable rule of law, but is only permissible inference in the
absence of an indication to the contrary.
This case law has explained the applicability of the canon of ejusdem generis well. According
to it, it applies in the circumstances where there is already a list or genus present, and not
otherwise. An example for the same would be that of the placement of a tomato in a grocery
list, for example. If the list reads, “tomato, potato, onion and garlic,” it is an indication of
tomato being treated as a vegetable; but when the same tomato is read along with “papaya,
apples, bananas, and melon,” it makes it clear that it is to be taken as a fruit. The rule
of noscitur a socii applies in cases where there is an ambiguity in the understanding of any
word and hence has to be understood in the context of the associated words. The rule
of ejusdem generis however is applicable in similar context, but only when that context
consists of a category or class of items. 

Another point of differentiation between the two rules is the fact that the rule of ejusdem
generis is applicable only when certain conditions are fulfilled, thereby restricting the scope
of the rule even further. These conditions are –

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

(2) the subjects of enumeration constitute a category,

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

(4) the general terms follow the enumeration, and

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

All these conditions make it clear that the mention of a singular class does not imply or
amount to a category, and the fact that if the item in question can be a part of two different
classes of items, the rule does not apply.

Application of the rule of Noscitur a Socii in the Indian Judiciary:

There have been various cases in the courts where the rule of noscitur a socii has been used.
In some circumstances, although the rule has been made applicable, it has not gone by the
name of noscitur a socii. This chapter discusses some of these landmark cases in no particular
order.

 One of the pivotal cases that had discussed this rule in detail is that of State of
Bombay v. Hospital Mazdoor Sabha AIR (1960 SC 610) way back in 1960 in the
judgement authored by Justice Gajendragadkar. Although the application of the rule
had been rejected in the case by the SC, the scope of the rule had been analysed. The
 judgement stated that the rule of noscitur a socii is a mere rule of construction. It
cannot be used where the legislative intent is clear, that is, the legislature has
deliberately used words of an open nature and where this usage does not cause any
ambiguity. The judgement also defined the scope of this rule, that it can be used in
circumstances where the legislative intent is unclear because it is relating broad words
with words of narrow meaning.

 The case had also referred to the English case of The Corporation of Glasgow v.
Glasgow Tramway and Omnibus Co. Ltd (1898) A.C. 631., where the Earl of
Halsbury, L.C. had said: “the words ‘free from all expenses whatever in connection
with the said tramways’ appear to me to be so wide in their application that I should
have thought it impossible to qualify or cut them down by their being associated with
other words on the principle of their being ejusdem generis with the previous words
enumerated.

 In the case of Vania Silk Mills Pvt. Ltd. v. Commissioner of IT, Ahmedabad [(1991) 4
SCC 22] the understanding of S. 2(47) of the Income Tax Act 1961 was done with the
help of the rule of noscitur a socii. With the usage of this rule, the SC interpreted that
the term “transfer” and said that because the legislature had provided for examples
such as sale and exchange, the phrase “extinguishment of any rights therein” had to be
interpreted as an extinguishment of rights because of a transfer only, and that it cannot
be said to refer to termination of any other right either related to or unrelated to a
transfer.

 In case of Devendra M Surti v. State of Gujarat, (AIR 1969 SC 63), the conviction of
the appellant under S. 2(4) of the Bombay Shops and Establishments Act of 1948 was
held to be illegal. This interpretation was also brought using the rule of noscitur a
socii. It was held that the words “commercial establishment” and “profession” were
considered with the word’s “trade” and “business” and hence the scope of the former
words must be restricted to that of the latter. The court later went on to prove that the
profession of the appellant did not fall under the purview of the Act and hence his
conviction was liable to be set aside.

II. Mandatory and Directory Statutes

The classification of statutes as mandatory and directory is useful in analysing and
solving the problem of what effect should be given to their directions. But it must be
kept in mind in what sense the terms are used. There is a well-known distinction
between a case where the directions of the legislature are imperative and a case where
they are directory. The real question in all such cases is whether a thing has been
ordered by the legislature to be done and what is the consequence if it is not done. The
general rule is that an absolute enactment must be obeyed or fulfilled substantially.
Some rules are vital and go to the root of the matter, they cannot be broken; others are
only directory and a breach of them can be overlooked provided there is substantial
compliance. No universal rule can be laid down as to whether mandatory enactments
shall be considered directory only or obligatory with an implied nullification for
disobedience. It is the duty of courts of justice to try to get at the real intention of the
Legislature by carefully attending to the whole scope of the statute to be considered.
The meaning and intention of the Legislature must govern, and these are to be
ascertained not only form the phraseology of the provision, but also by considering its
nature, its design and the consequences which would follow from construing it the
one way or the other.

The Supreme Court of India has been stressing time and again that the question
whether statute is mandatory or directory is not capable of generalization and that in
each case the court should try and get at the real intention of the legislature by
analysing the entire provisions of the enactment and the scheme underlying it.

Difference between mandatory and directory provisions:

According to Sutherland “The difference between mandatory and directory statutes is

one of effect only. The question generally arises in a case involving a determination
of rights as affected by the violation of, or omission to adhere to, statutory directions.
This determination involves a decision of whether or not the violation or omission is
such as to render invalid Acts or proceedings pursuant to the statute, or rights, powers,
privileges or immunities claimed there under. If the violation or omission is
invalidating, the statute is mandatory; if not, it is directory”.

In Sharif-ud Din v Abdul Gani Lone, the Supreme Court very pertinently pointed out
the difference between a mandatory and a directory rule. It was observed by the Court
that the fact that the statute uses the word shall while laying down a duty is not
conclusive on the question whether it is a mandatory or a directory provision. The
Court has to ascertain the object which the provision of law in question is to subserve
and its design and the context in which it is enacted. If the object of the law will be
defeated by non-compliance with it, it has to be regarded as mandatory. But when a
provision of law related to the performance of any public duty and the invalidation of
any act done in disregard of that provision causes serious prejudice to those for whose
benefit it is enacted and at the same time who have no control over the performance of
the duty, such provision should be treated as directory.

Rules for determination of Mandatory and Directory Statute:

1. Intention of the legislature:

In determination of the question, whether a provision of law is directory or

mandatory, the prime object must be to ascertain the legislative intent from a
consideration of the entire statute, its nature, its object and the consequences that
would result from construing it in one way or the other, or in connection that with
other related statutes, and the determination does not depend on the form of the
statute. It appears to be well settled that in order to judge the nature and scope of a
particular statute or rule, i.e., whether it is mandatory or directory, the purpose for
which the provision has been made and its nature, the intention of the legislature in
making the provision, the serious general inconvenience or injustice to person
resulting from whether the provision is read one way or the other , have ll to be taken
into account in arriving at the conclusion whether a particular provisions mandatory
or directory. In Hari Vishnu Kamath v Ahmad Ishaque , the Supreme Court observed
that the various rules for determining when a statute might be construed as mandatory
and when directory are only aids for ascertaining the true intention of the legislature
which is the determining factor, and that must ultimately depend upon the context. An
enactment, mandatory in form, might in substance be directory. The use of word
‘shall’ does not conclude the matter.

In Ramkrishnamma v Lakshmibayamma , It was held that, in order to determine

whether a particular provision is mandatory or directory, it would be necessary
whether a particular provision is mandatory or directory, it would be necessary to
ascertain whether the failure to comply with the requirement affects the very
foundation of being validated, It is always difficult to demarcate with any degree of
accuracy in a particular case what is mandatory and what is directory, or what is
irregularity and what is a nullity. When a question arises as to how far the proceedings
are affected by the contravention of any provision, it is necessary to see the scope and
object of the particular provision which is said to be violated.

2. Purpose behind the Statute:

In Chandrika Prasad Yadav v State of Bihar, it was held that, the question as to
whether a statute is directory or mandatory would not depend upon the phraseology
used therein. The principle as regards the nature of the statute must be determined
having regard to the purpose and object the statute seeks to achieve. If an object of the
enactment is defeated by holding the same director, it should be construed as
mandatory; whereas if by holding it mandatory serious general inconvenience will be
created for innocent persons of the general public without furthering the object of
enactment, the same should be construed as directory but all the same, it would not
mean that the language used would be ignored altogether.

3. Use of prohibitory words:

In State of Himachal Pradesh v MP Gupta, the Court was interpreting section 197 of
the Code of Criminal Procedure 1973, which provided ‘that no court shall take
cognizance of any offence alleged to have been committed by a public servant, judge,
magistrate, or member of the armed forces. It was held that the use of the words ‘no’
and ‘shall’ make it abundantly clear that the bar on the exercise of power of the court
to take cognizance of any offence is absolute and complete. In DA Koregaonkar v
State of Bombay, it was held that the legislature can incorporate in a statute or in the
Constitution a provision mandatory in character by expressing it in the form of a
positive injunction rather than in the form of a negative injunction. For example, if the
legislative intent is expressed clearly and strongly, such as the use of ‘must’ instead of
‘shall’, that itself will be sufficient to hold the provision to be mandatory, and it will
not be necessary to pursue the inquiry further.

4. Mandatory and Permissive Words:

 In Sidhu Ram v Secretary Railway Board, the Court had to consider the import of
Rule 1732 of the Railway Establishment Code.

The relevant portion of the Rule read thus— “where the penalty of dismissal, removal
from service, compulsory retirement, reduction in rank or withholding of increment
has been imposed, the appellate authority may give the railway servant either at his
discretion or if so, requested by the latter a personal hearing, before disposing of the
appeal”

The Court has to consider whether the obligation to give a personal hearing was
mandatory or directory. On plain reading of the Rule, the Court held that if the
expression ‘may’ were to be read as ‘must’, it would impose a duty on the appellate
authority to give a right of personal hearing in each case. In the opinion of the Court,
if that was the intendment of the legislature, it would have expressed it in much
simpler and explicit terms. Hence, the Court held that the provision was directory and
not mandatory.

In arriving at this decision, the Court observed— “Ordinarily the words ‘shall’ and
‘must’ are mandatory and the word ‘may’ is directory although they are often used
interchangeably. It is this use, without regard to the literal meaning, that generally
makes it necessary for the court to resort to construction in order to ascertain the
real intention of the draftsman. Nevertheless, it is generally presumed that the words
are intended to be used in their natural meaning. Law reports do show that when a
statute deals with the right of the public, or where a third person has a claim in law
to the exercise of the power, or something is directed to be done for the sake of justice
of public good, or when it became necessary to sustain the constitutionality of a
statute, the word ‘may’ is sometimes used as ‘must’. In the final analysis, it is always
a matter of construction of the statute in question”

It may, however be noted that the presumption that the legislature used mandatory and
permissive terms in their primary sense is a rebuttable one. The intention of the
legislature will control and prevail over the literal meaning of these words.

III. Legal Fiction:

Legal fiction Legal fiction is a powerful means in the hands of law to create
something artificially. It comes with various nomenclatures, “Deemed to be”, as if etc.
 Rajasthan State Industrial Development case gives the meaning of “As if” used in
Clause (iv) of Rule 11-A of Rajasthan Land Revenue (Industrial area Allotment)
Rules, 1959 in following words:

“The expression “as if”, is used to make one applicable in respect of the other. The
words “as if” create a legal fiction. By it, when a person is “deemed to be” something,
the only meaning possible is that, while in reality he is not that something, but for the
purposes of the Act of legislature he is required to be treated that something, and not
otherwise. It is a well settled rule of interpretation that, in construing the scope of a
legal fiction, it would be proper and even necessary, to assume all those facts on the
basis of which alone, such fiction can operate. The words “as if”, in fact show the
distinction between two things and, such words must be used only for a limited
purpose. They further show that a legal fiction must be limited to the purpose for
which it was created.”

Legal fiction, its purpose and its application were discussed in Industrial Supplies Pvt.
Ltd. v. Union of India, (AIR 1980 SC 1858) where the court observed as follows:

“It is now axiomatic that when a legal fiction is incorporated in a statute, the court has
to ascertain for what purpose the fiction is created. After ascertaining the purpose, full
effect must be given to the statutory fiction and it should be carried to its logical
conclusion. The court has to assume all the facts and consequences which are
incidental or inevitable corollaries to giving effect to the fiction.”

IV. Use of ‘And ‘and ‘Or’

“Or” is normally disjunctive and “And” is conjunctive, but at times they are read as
vice versa. A departure from this is not available unless the aim and purpose of the
statute requires so. Certain examples in which the interpretation of the word ‘or’ as
disjunctive and the word ‘and’ as conjunctive can been foregone to prevent injustice
or to give effect to the real purpose of the statute are when there is a need to prevent
arbitrary powers, to prevent crime and to ensure fulfilment of duty. In Union of India
v. in-swift laboratories ltd. the apex court emphasised the need to interpret ‘or’ and
‘and’ in a manner that ensures the manifest intent of the legislature.
 Principles of Constitutional Interpretation

Doctrine of Pith and Substance:

Pith and Substance denotes the true nature of law. The doctrine places emphasis on
the fact that it is the real subject matter which is to be challenged and not its incidental
effects on another field. Pith denotes the ‘essence of something’ or the ‘true nature’,
while substance states ‘the most significant or essential part of something’. Hence, it
can be stated that the very doctrine of pith and substance relates to finding out the true
nature of a statute.

For a better understanding of the doctrine of Pith and Substance, it becomes important
to take a look at Article 246 of the Indian Constitution. Article 246 mentions the
Union, State and Concurrent lists, enumerated in the Seventh Schedule of the
Constitution. Taking into account the federal nature of the Indian Constitution, one of
the major features of such a constitution is the distribution of power between the
Union and the State governments and the same has been put forth in the Seventh
Schedule which comprises of:

 List I– Union List (Parliamentary Legislation)

 List II– State List (State Legislation)

 List III– Concurrent List (Parliament and State Legislation)

These three divisions were made by the framers of the constitution. The Union List
primarily consists of matters which are of national importance and hence the
intervention of the Union government is required in such matters, empowering them
with the right to legislate on these matters. Further, the State list comprises of the
matters which are of local or state significance and hence, only the state governments
are required to showcase interest in such matters. Lastly, the concurrent list comprises
of subjects that seem to have been the common interests of both the union and state
 government, whereby, the power to legislate on such matter vests with both the state
and the Union governments.

Salient features:

 Situations in which the doctrine is applied– It is applied in the circumstances where

subject matter of list one seems to be conflicting with the subject matter of list two.

 Reason behind adopting the doctrine– The powers of the legislature would be sternly
limited if every law is declared invalid on the ground that it encroaches upon another
law.

 True nature and character– The doctrine is known to examine the true nature and
character of the subject in order to ascertain as to in which list it fits.

 Provision for a degree of flexibility– It takes under consideration the fact as to

whether the state has the power to make a law which involves a subject mentioned in
the Union list of the constitution.

 First judgment which upheld the doctrine– It was in the case of State of Bombay v.
F. N Balsara that the doctrine was first applied in the case and the same was upheld.

Landmark judgments by various Indian courts

There have been a number of landmark judgments being delivered by various High courts
and the Supreme Court of India. These judgments enshrine the idea of the doctrine of Pith
and Substance and the same have been discussed in the following segment of the article:

1. State of Rajasthan v. G Chawla- This case was regarding the sound amplifiers and
the confusion as to whether the state or the central government has the right to
legislate on the matters concerning public interest.

Facts-According to an existing law in the state of Rajasthan, restrictions were placed on

the usage of sound amplifiers in the state. The same was not complied with by the
respondent. As a consequence of the violation of the law, the judicial magistrate
impugned the respondent.  Further on an appeal the matter was taken up by the Supreme
Court of India.

Significance of the doctrine in the judgment– The primary question involved here was the
power to legislate on matters of Public health. The state government argued that entry 6
of the list II gives power to the state government to regulate the use of amplifier as it
produces loud noise. On the other hand, the opposition put forth the point that entry 31 of
list I, which speaks about various means of communication like that of telegraphs,
telephones, wireless broadcasting, etc., gives the union government the right to make laws
regarding the use of the amplifiers.

Finally, in its judgment the court held that amplifiers do not come under entry 31 of list I.
The court justified its point by stating- ‘though amplifier is an apparatus of broadcasting
and communication, the legislation in its pith and substance would lie with the state
government and not the central government’.

 State of Bombay and another v. F.N Balsara (1951 AIR 318)

 This case acquires quite a lot of importance as it was the first case which upheld the
doctrine of Pith and Substance in India.

Facts- The sale and possession of liquor was restricted in the state of Maharashtra by way
of the then existing Bombay Prohibition Act and this Act was challenged on the matter
that there was an incidental encroachment on the act of importing and exporting of liquor
through the borders. This matter was taken up by the High Court of Bombay and the
following was held.

Significance of the Doctrine in the judgment– The court gave out the judgment stating
that the act was in its Pith and Substance and rightfully fell under the State list even
though such an act was said to have a bearing on the import of liquor in the state.

 Prafulla Kumar Mukherjee v. Bank of Commerce ((1947) 49 BOMLR 568)

In this case, the validity of the Bombay Money Lenders Act, 1946 came to be questioned.
The main argument here was that promissory notes formed a part of the central subject
and not state subject. But on the contrary, the Privy Council held that interpreting the
doctrine of Pith and Substance, the act is actually a law with respect to ‘money lending
and money lenders’ and this was clearly a state subject, further the court went ahead and
stated an important point that this act was valid even if it entrenched upon the subject of
‘Promissory note’ which is a central subject, thus upholding the principle of the doctrine
of Pith and Substance.

Doctrine of colourable Legislation:

The doctrine of colourable legislation tests the competence of legislature against an
enacted law. This doctrine is based upon the Latin maxim “Quando aliquid prohibetur ex
directo, prohibetur et per obliquum”, which means “you cannot do indirectly what you
cannot do directly”, and based on the doctrine of separation of powers.

On its face, the subject matter of law might fall within the domain of the legislature, but
the purpose or effect relates to the subject matter, which falls outside the authority of the
legislature. This doctrine restricts the overstretching of the constituted power of the
legislature in a disguised, covert or indirect manner. This doctrine is also called as “fraud
on the Constitution. The genealogy of this doctrine could be traced to the colonial period,
when self-government started assuming significance in many parts of the British Empire
and the Commonwealth. The legislative subjects were divided between the Centre and
provincial units and to check any contravention, the enacted Act was tested against this
doctrine.

The Constituent Assembly of India, while deliberating the legislative competence of

parliament, had given scope for the judiciary to stop the colourable legislation. Alladi
Krishnaswami Ayyar said:

“It is an accepted principle of Constitutional Law that when a Legislature, be it the

Parliament at the Centre or a Provincial Legislature, is invested with a power to pass a
law in regard to a particular subject matter under the provisions of the Constitution, it is
not for the Court to sit in judgment over the Act of the Legislature…Of course, if the
legislature is a colourable device, a contrivance to outstep the limits of the legislative
power or to use the language of private law, is a fraudulent exercise of the power, the
Court may pronounce the legislation to be invalid or ultravires”.

In Narayan Deo vs State of Orissa (1953), the Supreme Court said:

“It may be made clear at the outset that the doctrine of colourable legislation does not
involve any question of bono fides or mala fides on the part of the legislature. The whole
doctrine resolves itself into the question of competency of a particular legislature to
enact a particular law. If the legislature is competent to pass a particular law, the
motives which impelled it to act are really irrelevant.”

Thus, a mere indirect method adopted by legislature to realise certain objects will not
attract the doctrine of colourable legislation, till the objects to be achieved are within the
legislative competence of the legislature. Further in All India Bank Employee’s
Association vs National Industrial Tribunal (1961), the court held that:

“Objections based on colourable legislation have relevance only in situations when the
power of the legislature is restricted to particular topics, and an attempt is made to
escape legal fetters imposed on its powers by resorting to forms of legislation calculated
to mask the real subject-matter.”

Limitations on the doctrine:

1. Nothing will attract the doctrine in cases where the power of the Legislature is not
limited by the constitutional provisions.

2. Further, the principle is not applicable in the cases of subordinate legislation

3. The intent of the legislature while passing a law is irrelevant. The doctrine does not
involve any question of malafide or bonafide of the legislature. The only question
considered will be if the law out the scope of legislative competency of the legislature.
Hence the constitutionality of the statute is always a question of power. Hence the
question of arbitrariness of the legislature cannot attract this doctrine.

Harmonious Construction:

Harmonious Construction is a rule where it is held that if two or more than two provisions
of the same act are inconsistent with each other then it must be interpreted in such a
manner that effect should be given to both.

According to this rule, a statute should be read as a whole and one provision of the Act
should be construed with reference to other provisions in the same Act so as to make a
consistent enactment of the whole statute. Such an interpretation is beneficial in avoiding
any inconsistency or repugnancy either within a section or between a section and other
parts of the statute. The five main principles of this rule are:

1. The courts must avoid any clash of seemingly contradicting provisions and they must
construe the contradictory provisions so as to harmonize them (CIT v. Hindustan
Bulk Carriers, (2003) 3 SCC 57, p. 74.)
2. The provision of one section cannot be used to defeat the provision contained in
another unless the court, despite all its effort, is unable to find a way to reconcile their
differences.

3. When it is impossible to completely reconcile the differences in contradictory

provisions, the courts must interpret them in such as way so that effect is given to
both the provisions as much as possible (Sultana Begum v. Premchand Jain, AIR
1997 SC 1006, pp. 1009, 1010.)

4. Courts must also keep in mind that interpretation that reduces one provision to a
useless number or dead is not harmonious construction (CIT v. Hindustan Bulk
Carriers, (2003) 3 SCC 57, p. 74.)

5. To harmonize is not to destroy any statutory provision or to render it fruitless.

Venkatarama Iyer, J., in the case of Venkataramana Devaru v. State of Mysore (AIR
1958) stated that “The rule of construction is well settled that when an enactment there
are in an enactment two provisions which cannot be reconciled with each other, they
should be so interpreted that, if possible, effect should be given to both. This is what is
known as the rule of harmonious construction.”

Principles under Harmonious Construction:

1. Avoid a head on clash.

2. Provisions of one section cannot be used to defeat the other section of the same
section. 

3. An interpretation which reduces the provision into dead letter is not considered to be
harmonious construction. 

4. The provisions must be consistent with the object of the statute. 

5. To harmonise is not to destroy any statutory provision.

Doctrine of Repugnancy:

It is Article 254 of the Constitution of India that firmly entrenches the Doctrine of
Repugnancy in India. According to Black’s Law Dictionary, Repugnancy could be
defined as “an inconsistency or contradiction between two or more parts of a legal
instrument (such as a statute or a contract)”. Before understanding the Doctrine of
Repugnancy, let us first understand a bit about the legislative scheme envisaged in our
Constitution. Article 245 states that Parliament may make laws for whole or any part of
India and the Legislature of a State may make laws for whole or any part of the State. It
further states that no law made by Parliament shall be deemed to be invalid on the ground
that it would have extra-territorial operation. Article 246 also talks about Legislative
power of the Parliament and the Legislature of a State. It states that:

1. The Parliament has exclusive power to make laws with respect to any of the matters
enumerated in List I or the Union List in the Seventh Schedule.

2. The Legislature of any State has exclusive power to make laws for such state with
respect to any of the matters enumerated in List II or the State List in the Seventh
Schedule.

3. The Parliament and the Legislature of any State have power to make laws with respect
to any of the matters enumerated in the List III or Concurrent List in the Seventh
Schedule.

4. Parliament has power to make laws with respect to any matter for any part of the
territory of India not included in a State notwithstanding that such matter is a matter
enumerated in the State List.

Supreme Court’s Interpretation of Doctrine of Repugnancy under Article 254 has been
beautifully summarized by the Supreme Court in M. Karunanidhi v. Union of India
(1979 AIR 898)

The court stated that: “

1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully
inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State
Act will become void in view of the repugnancy.

2. Where however a law passed by the State comes into collision with a law passed by
Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of
the repugnancy and the provisions of the Central Act would become void provided the
State Act has been passed in accordance with clause (2) of Article 254.
3. Where a law passed by the State Legislature while being substantially within the scope
of the entries in the State List entrenches upon any of the Entries in the Central List, the
constitutionality of the law may be upheld by invoking the doctrine of pith and substance
if on an analysis of the provisions of the Act it appears that by and large the law falls
within the four corners of the State List and entrenchment, if any, is purely incidental or
inconsequential.

4. Where, however, a law made by the State Legislature on a subject covered by the
Concurrent List is inconsistent with and repugnant to a previous law made by Parliament,
then such a law can be protected by obtaining the assent of the President under Article
254(2) of the Constitution. The result of obtaining the assent of the President would be
that so far as the State Act is concerned, it will prevail in the State and overrule the
provisions of the Central Act in their applicability to the State only. Such a state of affairs
will exist only until Parliament may at any time make a law adding to, or amending,
varying or repealing the law made by the State Legislature under the proviso to Article
254.

Conditions for invoking Repugnancy:

The conditions which must be satisfied before any repugnancy could arise are as follows:
1. That there is a clear and direct inconsistency between the Central Act and the State Act.

2. That such an inconsistency is absolutely irreconcilable.

3. That the inconsistency between the provisions of the two Acts is of such nature as to
bring the two Acts into direct collision with each other and a situation is reached where it
is impossible to obey the one without disobeying the other.”

Thereafter, the court laid down following propositions in this respect:

1. That in order to decide the question of repugnancy it must be shown that the two
enactments contain inconsistent and irreconcilable provisions, so that they cannot stand
together or operate in the same field.

2. That there can be no repeal by implication unless the inconsistency appears on the face
of the two statutes.
 3. That where the two statutes occupy a particular field, but there is room or possibility
of both the statutes operating in the same field without coming into collision with each
other, no repugnancy results.

4. That where there is no inconsistency but a statute occupying the same field seeks to
create distinct and separate offences, no question of repugnancy arises and both the
statutes continue to operate in the same field.

Cases:

Deep Chand vs. State of UP (1959 AIR 648)

Facts: The state government introduced UP transport service Act and was added in the
concurrent list. There was certain provision which were in the UP-transport service Act
which was not in the motor vehicles Act. So, the parliament amended the Motor Vehicles
Act to create a uniform law.

 The court held that both the law was in a direct conflict and occupied the same field.
Therefore, it is void to the extent of repugnancy.  

Zaveribhai vs. state of Bombay (1954 AIR 752)

Facts: The parliament enacted essential supple Act 1946 regarding production and
distribution of essential commodities. If the rules listed are not followed the person would be
imprisoned for 3 years. The state passed an Act with the assent of the president the Act
increased the punishment up to 7 years. The parliament amended the Act and enhanced the
punishment.

  The court held that both the legislations made law in a same field conflicting each other.
Therefore, law passed by the state is void to the extent of repugnancy.

“The verb ‘make’ or the verb

‘made’ is equivalent to the
expression ‘to legislate’.
The importance of this
discussion is to show that the
Constitution framers have
deliberately used the word
‘made’ or ‘make’ in the above
Articles.
Our Constitution gives
supremacy to the Parliament in
the matter of making of the
laws or legislating with respect
to matters delineated in the
three Lists. The principle
of supremacy of the
Parliament, the distribution of
legislative powers, the
principle of
exhaustive enumeration of
matters in the three Lists are
all to be seen in the context
of making of laws and not in
the context of commencement
of the laws.”
Thus, the State Legislature is
denuded of Legislative
Competence as soon as the
Parliament, by enacting the
Central Act, intended to
occupy the entire field of ‘Chit
Funds’ under the Concurrent
List.
Last Word
1. We can easily see that the
line of difference between
Repugnance and Occupied
Field is very thin. Where
Occupied Fields ends,
repugnancy starts. Parliament
is
indeed the supreme Law-
Making body under our
Constitutional Scheme.
Normally,
the Courts try to construe a
Central Law and a State Law
harmoniously. However,
when the Parliament tries to
occupy the field of the State
Law, it is the Central Law
that is to prevail.
2. The question of repugnance
is separate one. Whether the
whole State law or only a
particular provision is
repugnant to the Central Law
is a question that is to be
decided
after deciding whether the
Parliament has really occupied
the field of the State Law.
3. Once it is made sure that the
Parliament intends to legislate
over a particular field
on which the State has already
legislated, the repugnancy
kicks in. To what extent is
the repugnancy is a subjective
question.
4. The intention of the
Parliament can be either
express or implied. Express
intention
can be shown explicitly by
enacting a Central Law to
repeal a State Law. Implied
Intention is slightly more
convoluted. Implied Intention
can be shown by enacting a
Central Law on a subject on
which the State has already
legislated. By enacting such a
Central Legislation, it will be
implied that the Parliament
intends to occupy a
particular field and strip the
State Legislature of its power
to legislate in this respect

“The verb ‘make’ or the verb

‘made’ is equivalent to the
expression ‘to legislate’.
The importance of this
discussion is to show that the
Constitution framers have
deliberately used the word
‘made’ or ‘make’ in the above
Articles.
Our Constitution gives
supremacy to the Parliament in
the matter of making of the
laws or legislating with respect
to matters delineated in the
three Lists. The principle
of supremacy of the
Parliament, the distribution of
legislative powers, the
principle of
exhaustive enumeration of
matters in the three Lists are
all to be seen in the context
of making of laws and not in
the context of commencement
of the laws.”
Thus, the State Legislature is
denuded of Legislative
Competence as soon as the
Parliament, by enacting the
Central Act, intended to
occupy the entire field of ‘Chit
Funds’ under the Concurrent
List.
Last Word
1. We can easily see that the
line of difference between
Repugnance and Occupied
Field is very thin. Where
Occupied Fields ends,
repugnancy starts. Parliament
is
indeed the supreme Law-
Making body under our
Constitutional Scheme.
Normally,
the Courts try to construe a
Central Law and a State Law
harmoniously. However,
when the Parliament tries to
occupy the field of the State
Law, it is the Central Law
that is to prevail.
2. The question of repugnance
is separate one. Whether the
whole State law or only a
particular provision is
repugnant to the Central Law
is a question that is to be
decided
after deciding whether the
Parliament has really occupied
the field of the State Law.
3. Once it is made sure that the
Parliament intends to legislate
over a particular field
on which the State has already
legislated, the repugnancy
kicks in. To what extent is
the repugnancy is a subjective
question.
4. The intention of the
Parliament can be either
express or implied. Express
intention
can be shown explicitly by
enacting a Central Law to
repeal a State Law. Implied
Intention is slightly more
convoluted. Implied Intention
can be shown by enacting a
Central Law on a subject on
which the State has already
legislated. By enacting such a
Central Legislation, it will be
implied that the Parliament
intends to occupy a
particular field and strip the
State Legislature of its power
to legislate in this respect
Doctrine of occupied field:

There is a very thin of line of difference between doctrine of Repugnancy and Doctrine of
Occupied Field. As we know that repugnance arises only if there is an actual conflict between
two legislations, one enacted by the State Legislature and the other by Parliament, both of
which were competent to do so. On the other hand, doctrine of Occupied Field simply refers
to those legislative entries of State List, which are expressly made ‘subject’ to a
corresponding Entry in either the Union List or the Concurrent List. Doctrine of Occupied
Field has nothing to do with the conflict of laws between the state and the centre. It is merely
concerned with the ‘existence of legislative power whereas repugnance is concerned with the
‘exercise of legislative power’ that is shown to exist. Doctrine of Occupied Field comes into
picture even before the Union Law or the State Law has commenced. Under Article 254, as
soon as a Union law receives assent of the President, it is said to be ‘a law made by the
Parliament’. Actual commencement of the law is not important for the purpose of attracting
doctrine of Occupied Field.

State of Kerala v. Mar Appraem Kuri (2012)

Let us understand this doctrine with the help of a famous case. In the case of State of Kerala
& Ors v. M/S. Mar Appraem Kuri Co. Ltd. & Anr., the Centre enacted the Chit Funds Act
(Central Act). For the Law to become operative in any state, the Central Government would
have to issue a notification under Section 3 of the Central Act. In the meantime, the State of
Kerala enacted a separate act on ‘Chit Funds’ called as Kerala Chitties Act. However, the
Central Act did not get notified in Kerala resulting into a situation wherein there was only
one Act in force in the State of Kerala i.e., the Kerala Chitties Act. It was contended that the
Kerala Chitties Act was repugnant to the un-Notified Central Act. The Supreme Court held
that even an un-notified Central law attracts art 254. The reasoning given by the Supreme
Court was that the Central Enactment covered the entire ‘field’ of ‘Chit Funds’ under the
Concurrent List. Even though the Central Chit Funds Act was not brought in force in the
State of Kerala, it is still a law ‘made’, which is alive as an existing law. The Court
emphasized that Article 254 uses the verb ‘made’ and the ‘making’. Thus, the ‘making’ of a
law is complete, even before that law is notified. The court also said that the verb ‘make’ or
the verb ‘made’ is equivalent to the expression ‘to legislate’. The importance of this
discussion is to show that the Constitution framers have deliberately used the word ‘made’ or
‘make’ in the above Articles.

Our Constitution gives supremacy to the Parliament in the matter of making of the laws or
legislating with respect to matters delineated in the three Lists. The principle of supremacy of
the Parliament, the distribution of legislative powers, the principle of exhaustive enumeration
of matters in the three Lists are all to be seen in the context of making of laws and not in the
context of commencement of the laws.”

Thus, the State Legislature is denuded of Legislative Competence as soon as the Parliament,
by enacting the Central Act, intended to occupy the entire field of ‘Chit Funds’ under the
Concurrent List.

Observations on the doctrine:

1. We can easily see that the line of difference between Repugnance and Occupied Field is
very thin. Where Occupied Fields ends, repugnancy starts. Parliament is indeed the supreme
Law-Making body under our Constitutional Scheme. Normally, the Courts try to construe a
Central Law and a State Law harmoniously. However, when the Parliament tries to occupy
the field of the State Law, it is the Central Law that is to prevail.

2. The question of repugnance is separate one. Whether the whole State law or only a
particular provision is repugnant to the Central Law is a question that is to be decided after
deciding whether the Parliament has really occupied the field of the State Law.

3. Once it is made sure that the Parliament intends to legislate over a particular field on which
the State has already legislated, the repugnancy kicks in. To what extent is the repugnancy is
a subjective question.

4. The intention of the Parliament can be either express or implied. Express intention can be
shown explicitly by enacting a Central Law to repeal a State Law. Implied intention is
slightly more convoluted. Implied Intention can be shown by enacting a Central Law on a
subject on which the State has already legislated. By enacting such a Central Legislation, it
will be implied that the Parliament intends to occupy a particular field and strip the State
Legislature of its power to legislate in this respect