Table of Contents

Primary Rules of Interpretation...................................................................................................1

Literal Rule Of Interpretation......................................................................................................1
Other Rules of Interpretation.......................................................................................................2
The Mischief Rule.......................................................................................................................2
The golden rule............................................................................................................................3
Construction ut res magic valeat quam pereat.............................................................................4
A statute is to be read as a whole.................................................................................................4
External Aspects..........................................................................................................................4
Historical setting..........................................................................................................................4
Parliamentary history...................................................................................................................5
Government publications.............................................................................................................5
International conventions.............................................................................................................5
Dictionaries and textbooks..........................................................................................................6
Practice—judicial, conveyancing, administrative and commercial.............................................6
READING WORDS IN CONTEXT: THE STATUTORY ASPECT.......................................6
An Act is to be regarded as a whole............................................................................................6
Construction by reference to earlier legislation...........................................................................8
Construction by reference to later legislation..............................................................................9
Interpretation placed upon Acts of similar scope........................................................................9
Statutory instruments...................................................................................................................9
SUBSIDIARY RULES OF INTERPRETATION....................................................................10
SAME WORD SAME MEANING...........................................................................................10
USE OF DIFFERENT WORDS................................................................................................11
RULE OF LAST ANTECEDENT............................................................................................11
NON OBSTANTE CLAUSE....................................................................................................12
LEGAL FICTION.....................................................................................................................16
MANDATORY AND DIRECTORY PROVISIONS...............................................................18
CONJUNCTIVE AND DISJUNCTIVE WORDS `OR' AND 'AND’......................................23
CONSTRUCTION OF GENERAL WORDS...........................................................................24
 Principle of Legality..................................................................................................................25
Noscitur a Sociis........................................................................................................................26
Ejusdem Generis........................................................................................................................27
Presumptions................................................................................................................................28
THE WORDS IN A STATUTE ARE USED PRECISELY AND NOT LOOSELY...............28
VESTED RIGHTS ARE NOT, TAKEN AWAY WITHOUT EXPRESS WORDS OR
NECESSARY IMPLICATION OR WITHOUT COMPENSATION......................................30
MENS REA IS GENERALLY REQUIRED FOR A CRIMINAL ACT..................................32
Government if affected by a statute...........................................................................................33
The jurisdiction of courts is neither enlarged nor decreased.....................................................35
STATUTES ARE NOT INTENDED TO BE INCONSISTENT WITH INTERNATIONAL
LAW..........................................................................................................................................37
Territorial Nexus........................................................................................................................39
LEGISLATURE KNOWS THE EXISTING LAW AND DOES NOT INTEND TO ALTER
IT EXCEPT BY EXPRESS ENACTMENT.............................................................................40
THE LEGISLATURE DOES NOT COMMIT MISTAKES OR MAKE OMISSIONS..........41
Tautology...................................................................................................................................43
--- Internal Aids to Construction ----.........................................................................................45
Long Title..................................................................................................................................46
Cases -........................................................................................................................................46
Preamble....................................................................................................................................46
Cases..........................................................................................................................................47
Preamble of the Constitution.....................................................................................................48
Headings....................................................................................................................................49
Marginal Notes..........................................................................................................................50
Punctuation................................................................................................................................50
Illustrations................................................................................................................................51
DEFINITIONS..........................................................................................................................52
Ambiguous definitions...............................................................................................................54
PROVISO..................................................................................................................................55
EXPLANATION.......................................................................................................................58
SCHEDULES............................................................................................................................59
EXTERNAL AIDS TO CONSTRUCTION..............................................................................59
English Practice.........................................................................................................................59
Traditional View........................................................................................................................59
Modern view..............................................................................................................................60
American View..........................................................................................................................60
Indian View:..............................................................................................................................61
Later Social, Political and Economic developments and scientific inventions.........................63
Reference to other statutes.........................................................................................................71
Incorporation v. Reference:.......................................................................................................87
REPEAL or AMENDMENT –..................................................................................................91
EFFECT OF USAGE AND PRACTISE: CONTEMPORANEA EXPOSITIO.......................95
Use of foreign decisions............................................................................................................98
Dictionaries..............................................................................................................................100

PRIMARY RULES OF INTERPRETATION

LITERAL RULE OF INTERPRETATION

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.

It is a corollary to the general rule of literal construction that nothing is to be added to or

taken from a statute unless there are adequate grounds to justify the inference that the
legislature intended something which it omitted to express.

“We are not entitled," said Lord Loreburn L.C., "to read words into an Act of Parliament unless
clear reason for it is to be found within the four corners of the Act itself.

When the Married Women's Property Act 1870, s. 11, empowered; a married woman to sue,
without making her liable to be sued, it was held that no action could be brought against her
without joining her husband as a defendant.
Section 3 of the Small Dwellings Acquisition Act 1899 allows a local authority either to sell or
to take possession of a house where default is made with any of •the statutory conditions, one of
which is that every sum due for principal and interest "shall be punctually paid." In Alnwick
Rural District Council v. Taylor," it was argued that, as applied to installments, this meant
"where the proprietor fails .; to pay any sum punctually and the sum remains unpaid." "I do not
think," said Pennycuick J. (at pp. 361, 362), "this is a legitimate construction. . . . The statutory
condition requires punctual payment and where there is not punctual payment there is default in
compliance with the condition. I do not see any justification for writing in any further
requirement."

In LR.C. v. Saxone, Lilley and Skinner (Holdings), Ltd.," the House had to consider section 271
(1) (d) (iii) of the Income Tax Act 1952 which defines an industrial building as, inter alia, one
used for the purposes of a trade which consists in the storage of goods which, having been
manufactured, have not yet been delivered to any purchaser. The Crown submitted that "in use
for the purposes of a trade" meant wholly or mainly in use for such purposes. "But that," said
Lord Reid (at p. 504), "involves writing in words which are not there and I can see nothing in the
context to make that necessary."

Every word in a statute to be given a meaning

A construction which would leave without effect any part of the language of a statute will
normally be rejected.

Similarly, the main part of a section must not be construed in such a way as to render a proviso
to the section redundant.

In Re King, deceased, 53 the Court of Appeal had to interpret the provision in section 141 (1) of
the Law of Property Act 1925, that the benefit of every covenant in a lease to be performed by
the lessee ,"shall be annexed and incident to and shall go with the reversionary estate in the
land." Diplock L.J. said (at p. 497): "The expression `go with' must be intended to add something
to theconcept involved in 'the expression 'annexed and incident to' and in my view connotes the
transfer of the right to enforce the covenant from the assignor to the assignee with the consequent
cessation of the right to the assignor to Ienforce the covenant against the tenant."

By section 34 (1) of the Caravan Sites and Control of Development Act 1960: "Where the
Minister gives any decision on an appeal under " this Part of the Act against an enforcement
notice [specified persons; or bodies] may, according as rules of court may provide, either appeal
to the High Court against the decision on a point of law or require the Minister to state and sign a
case for the opinion of the High:' Court." The Rules of the Supreme Court only made provision
for appeal by notice of motion, and Ungoed -Thomas J. held that in so doing they satisfied the
requirement of the statute, and that a person, aggrieved had no statutory right to use the
procedure by way of case stated. "If the plaintiffs' interpretation were adopted, the words
'according as rules of court may provide' would be otiose."
 OTHER RULES OF INTERPRETATION
There is not in English law any settled hierarchy governing the order in which the various
canons and presumptions of construction are to be employed, the existence of these
principles does not make it possible to predict with certainty the result which will be
reached in a given case

THE MISCHIEF RULE

In Heydon's case," in 1584, it was resolved by the Barons of the,l Exchequer (at p. 7b) "that for
the sure and true interpretation of statutes in general (be they penal or beneficial, restrictive or
enlarging of the common law) four things are to be discerned and considerek;

(1st). What was the common law before the making of the Act.

(2nd). What was the mischief and defect for which the common law did not provide.

(3rd). What remedy the Parliament bath resolved and appointed to cure the .disease of the
commonwealth. And,

(4th). 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,1 intent of the makers of the Act, pro bono publico.

In the well-known case of Smith v. Hughes,for example, it was held that prostitutes who
attracted the attention of passers-by from balconies or windows were soliciting "in a street"
within section 1 (1) of the Street Offences Act 1959. "For my part," said Lord Parker C.J. (at p.
832), "I approach the matter by considering what is the mischief aimed at by this Act. Everybody
knows that this was an Act intended to clean up the streets, to enable 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.

Consideration of the "mischief" aimed at may also lead to a' restricted interpretation of a
statute.

Blake v. Hendon Corporation [1962] 1 Q.B. 283, per Devlin L.J. By section 164 of the Public
Health Act 1875, an urban authority' may "purchase or take on lease lay out plant improve and
maintain lands for the purpose of being used as public walks or pleasured grounds." The purpose
of this section being "to provide the public with public walks and pleasure grounds," the Court of
Appeal held 1 that an authority which acquired lands under this section did not have the option
of retaining occupation of them: it was bound to I dedicate such lands to the public.

THE GOLDEN RULE

The so-called "golden rule" is really a modification of the literal rule. It was stated in this way 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 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.

Lee v. Knapp [1967] 2 Q.B. 442, at pp. 447, 448. Section 77 (1) of the Road Traffic Act 1960
requires the driver of a motor vehicle to "stop" after an accident. Winn L.J., in the Divisional
Court, said that he would not wish to give the impression that a momentary pause after an
accident would exempt the driver of a car from the necessity of stopping to give particulars. "The
phrase `the driver of the motor vehicle shall stop' is properly to be construed as meaning the
driver of the motor vehicle shall stop it and remain where he has stopped it for such a period of
time as in the prevailing circumstances, having regard in particular to the character of the road or
place in which the accident happened, will provide a sufficient period to enable persons who
have a right so to do, and reasonable ground for so doing, to require of him direct and personally
the information which may be required under the section.

Shipley v. Marshall (1863) 14 C.B. (N.s.) 566, at p. 573 Buckley J. has held that a debt may
come within the description "book debts" in section 95 (2) (e) of the Companies Act 1948, even
though it has not been entered in the books of the business, provided that it "would or could in
the ordinary course of such a business be entered in well-kept books relating to that business. -
He cited a nineteenth-century case in which Byles J. had said "Suppose the trader kept no books,
or was blind and could not write, and did not choose to incur the expense of keeping a clerk or
bookkeeper,—upon the construction contended for by the defendant, there could be no book
debts which could be made the subject of sale and assignment under section 137 of the
Bankruptcy Act 1861. That surely would not be a very sensible construction to put upon the
statute.

CONSTRUCTION UT RES MAGIC VALEAT QUAM PEREAT

"If the choice is between two interpretations, the narrower of which would fail to achieve the
manifest purpose of the legislation, we should avoid a construction which would reduce the
legislation to futility and should rather accept the bolder construction based on the view that
Parliament would legislate only for the purpose of bringing about an effective result.

Where alternative constructions are equally open, that alternative is to be chosen which will be
consistent with the smooth working of the system which the statute purports to be regulating; and
that alternative is to be rejected which will introduce uncertainty, friction or confusion into the
working of the system.

Re P. & J. Macrae, Ltd. [1961] 1 W.L.R. 229 By section 346 (1) of the Companies Act 1948:
"The court may, as to all matters relating to the winding-up of a company, have regard to the
wishes of the creditors or contributories of the company, as proved to it by any sufficient
evidence." By section 346 (2): "In the case of creditors, regard shall be had to the value of each
creditor's share." The Court of Appeal has refused to adopt an interpretation of section 346 (2),
which would have the effect of diminishing the very wide discretion conferred upon it by the
earlier provision

A STATUTE IS TO BE READ AS A WHOLE

It was resolved in the Case of -Lincoln College" that the good expositor of an Act of Parliament
should "make construction on all the parts together, and not of one part only by itself." Every
clause of a statute is to "be construed with reference to the context and other clauses of the Act,
so as, as far as possible, to make a consistent enactment of the whole statute."

EXTERNAL ASPECTS

Statutory language is not read in isolation, but in its context. in this section, we consider the
extent to which external circumstances ma" be taken into account in construing an Act of
Parliament: in tat following section, the effect of other legislative provisions (whether contained
in the same enactment as that which contains the words to be interpreted, or in other enactments)
on construction will ht: considered.

HISTORICAL SETTING

In Henrietta Muir Edwards v. Att.-Gen. for Canada, the legal position of women from the earliest
times was considered. And Goddard L.J. approached "the construction of the [Truck] Act,
bearing in mind that in the words of Lord Lindley,3regard must be had not only to the words
used, but to the history of the Act and the reasons which led to its being passed

PARLIAMENTARY HISTORY

The Parliamentary history of legislation is not a permissible aid in construing a statute. - R. v.

Hertford College (1878) 3 Q.B.D. 69

The other is the danger that member of either House might, in the course of debate, attempt to
influence the future interpretation of a statute by expressing their own "view,, as to its probable
effect in the hope that these would remain:, uncontradicted at the conclusion of its passage
through Parliament.
 GOVERNMENT PUBLICATIONS

These may be divided into two groups: the reports of commissions or committees which
preceded the legislation to be interpreted and other documents. With regard to the latter class, the
law is not in doubt. Unless the document is expressly referred to in the statute, it cannot be
looked at for the purpose of construction.

In Katikiro of Buganda v. Att.-Gen., a White Paper, containing the recommendations of a

constitutional conference held:' in Uganda was held inadmissible as an aid to the construction of
the Buganda Agreement 1955 Order in Council 1955.

In Assam Railways and Trading Co., Ltd. v. I.R.C.,27 counsel before the House of Lords
sought to introduce into his argument certain recommendations from a report of a Royal
Commission on Income, Tax in 1920, arguing that as section 27 (1) of the Finance Act 1920
followed these recommendations, it should be presumed that the words of the section were
intended to give effect to them, and hence that they could be used to show what was the intention
of the legislature in enacting the section. BUT THIS WAS REJECTED.

The modern attitude is best summed up in these words of Lord Denning M.R. in Letang v.
Cooper "It is legitimate to look at the report of such a committee, so as to see what the mischief
at which the Act was directed was. You can get the facts and surrounding circumstances from
the report so as to see the background against which the legislation was enacted. This is always a
great help in interpreting it. But you cannot look at what the committee recommended, or at
least, if you do look at it, you should not be unduly' influenced by it. It does not help you much,
for the simple reason that Parliament may, and often does, decide to do something different to
cure the mischief. You must interpret the words of Parliament as they stand, without too much
regard to the recommendations of the committee

INTERNATIONAL CONVENTIONS

International conventions may not be resorted to for the purpose, of interpreting legislation
which does not contain any ambiguities. But if the terms of the legislation are not clear, we can
refer to the, convention to resolve ambiguities or obscurities of language in ... the statute.

The use in an international convention of words different from those employed in the
corresponding domestic legislation does not give rise to any presumption that a different
meaning was intended, for international conventions do not employ the terms of art of the
municipal law of any single country.

DICTIONARIES AND TEXTBOOKS

dictionaries have been resorted to when considering the meaning of the words "park,'" "rubbish,'"
"document," "practicable,"' "machinery," "hardware, and "cartilage. Dictionaries are for
consultation "in the absence of any judicial guidance or authority.
Textbooks may also be referred to for assistance in finding the true construction of a statute. The
opinions of Coke, for example, have been relied upon more than once; and in Re Castioni the
court, of' which Stephen J. was a member, consulted his History of Criminal Law to define
"political crime." The place of textbooks in the' science of interpretation was aptly summarised
by Lord Goddard, C.J. in Bastin v. Davies. Referring Beto the discussion of the word'
"substance" in the twelfth edition of ll's Sale of Food and Drugs,' he said (at pp. 582, 583): "This
court would never hesitate to disagree with a statement in a textbook, however authoritative, or
however long it had stood, if it thought 'right to do so. In fact, it has had; occasion, I think, in the
past to differ from statements in Stone's Justices' Manual, which justices are accustomed to treat
with almost the respect paid to the Bible.

PRACTICE—JUDICIAL, CONVEYANCING, ADMINISTRATIVE AND COMMERCIAL

Commercial usage may be relevant. In United Dominions Trust Ltd. v. Kirkwood, in applying
the phrase "any person bona fide carrying on the business of banking" (Money-lenders Act 1900,
.,s..6 (d), Lord Denning said (at pp. 454, 455) that "in such a matter as this, when Parliament has
given no guidance, we cannot do better than look at the reputation of the concern amongst
intelligent men of commerce.

READING WORDS IN CONTEXT: THE STATUTORY ASPECT

AN ACT IS TO BE REGARDED AS A WHOLE

Individual words are not considered in isolation, but may have their meaning determined by
other words in the section in which they occur.

In Butter v. Bennett, the manager of a mill required to live in a house near the mill, and his
employers supplied him with free coal and electricity and the services of a gardener. Were these
"in or in connection with the provision of living accommodation"? The Court of Appeal held that
they were not. "Living accommodation" should be construed in a narrow sense, the expense
which was exempt being that of providing accommodation so as to make it habitable for the
employee as distinct from the expense o i inhabiting the accommodation. "I gather this," said
Lord Dennim M.R. (at p. 195), "by looking back to section 161 (I). Parliament there draws a
distinction between 'living accommodation' and 'other accommodation.' It draws a distinction
between 'living accommodation' and 'domestic or other services or other benefits or facilities
whatsoever, so it seems to me in this situation living accommodation must be narrowly construed
as meaning the premises themselves which the employee occupies.

The meaning of a section may be controlled by other individual sections in the same Act. If one
section of an Act, for instance, required that "notice" should be "given," a verbal notice would
generally be sufficient: but if, another section provided that it should be "served" on a person, or
"left" with him, or in a particular manner or place, it would obviously show that a written notice
was intended.
In Gibson v. Ryan, the question was whether an inflatable rubber: dinghy and a fish basket,
found on the person of the appellant, fell.' within the term "instrument" in section 7 (1) of the
Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951. The Divisional Court held
that they did not. Referring to section 10 of the Act, which deals with the powers of water
bailiffs, Diplock said (L p. 255): "It is evident that, so far as that section is concerned, a
distinction is drawn between instruments on the one hand, boats on the other hand and baskets
on, if there is such a thing, the third hand

The use of other provisions for purposes of construction must not, however, be carried too far.
Even where a word is repeated in the same section, there is no more than a presumption that it
bears the same meaning in both places.

There may, furthermore, be an excellent reason for not reading one section in the light of
another. In Ching Garage, Ltd. v. Chingford Corporation," the House of Lords held that
section 67 (2) of the Highways Act 1959 entitled the respondents to erect a pedestrian refuge
notwithstanding that it interfered with frontagers' rights of access to the highway. "The
appellants," said Lord Radcliffe (at pp. 479, 480), "placed some reliance on the fact that there are
other sections of the same Act . . . which make much more scrupulous provision for the
recognition of private rights of access than the mere right of compensation given by section 67.
They point to section 18 (stopping up of highways) and section 85 (fences or posts to prevent
access to a highway). In my opinion, however, this argument can lead to no conclusion as to the
scope of section 67 itself. The other two sections relate to operations that by their own nature
involve serious obstruction, their purpose being denial of access. It is only to be expected that in
such sections more detailed attention would be paid to protecting private rights of access than in
a section such as section 67, in which the works involved [walls, etc., 'for the purpose of
safeguarding persons using the highway'] do not necessarily involve any appreciable form of
obstruction at all.

Lastly, the meaning of a section may be determined, not so much by reference to other
individual provisions of the statute, as by the scheme of the Act regarded in general.

Thus, in Re Newspaper Proprietors' Agreement" the House of Lords held that the jurisdiction
conferred by section 20 of the Restrictive Trade Practices Act 1956 "in respect of any agreement
of which particulars are for the time being registered" was not limited to existing agreements, but
extended to ones which had already been terminated by the parties. This conclusion was reached
after an elaborate analysis which showed that, when read in the context of the Act as a whole, the
section could be understood as referring to both live and extinct agreements. "There is," said
Lord Evershed (at p. 389), "solid and respectable authority for the rules' that you should `begin at
the beginning and go on till you come to the end: they: stop'; and, in my opinion, the rule is . . .
peculiarly proper when construing an Act of Parliament and seeking to discover from the. Act
the parliamentary intention."
 CONSTRUCTION BY REFERENCE TO EARLIER LEGISLATION

Previous legislation may be relevant to the interpretation of later statutes in two ways (1)- The
course which legislation on a particular point has followed often provides an indication as to how
the Act at present in force should be interpreted.

In Armah v. Government of Ghana, the House of Lords held that it was not sufficient that the
magistrate.; was satisfied that a prima facie case had been made out, in other; words, that there
was evidence on which a reasonable jury could properly convict at a subsequent trial. Lord Reid
showed from nineteenth century Acts that they drew a distinction between two kinds of
evidence: positive or credible evidence which raised a strong presumption of the guilt of the
accused, and evidence which afforded sufficient ground for judicial enquiry into his guilt. The
distinction must have been known to those who framed the 1881 Act, and the words they used
must be taken as referring to the first kind of evidence

(2) Light may be thrown on the meaning of a phrase in a statute by reference to a specific phrase
in an earlier statute dealing with the same subject-matter.

Statutes are said to be in part materia when they deal with the same person or thing or class: it is
not enough that they deal with a similar subject-matter

Where it is expressly provided that two Acts are to be read together, every part of each must be
construed as if contained in one Act unless there is some manifest discrepancy which makes it
necessary to hold that the later Act has to some extent modified the earlier. Thus, where it was
expressly provided that two Acts should be construed as one, an enactment in one that nothing
therein should include debentures was held to exclude debentures from the other also.

In the Rating and Valuation (Apportionment) Act 1928, s. 4 (2), the term "industrial purposes"
meant the manufacturing purposes that made the hereditament a factory and accordingly the term
when used in section 22 (4) of the Rating and Valuation Act 1925, which was added by
amendment in 1955, had the same meaning, since the Act of 1925 was by section 84 of the Local
Government Act 1929 to be construed as one with the Act of 1928

CONSTRUCTION BY REFERENCE TO LATER LEGISLATION

For the later statute to become relevant, there must be something "obscure or ambiguous, or
readily capable of more than one interpretation" in the earlier one, some "phrase fairly and
equally open to divers meanings."If such an ambiguity can be found, it becomes permissible to
look at the later Acts "not perhaps to construe the earlier statute, but to see the meaning which
Parliament puts on the self-same phrase in a similar context, in case it throws any light on' the
matter.

In R. v. West, the Court of Criminal Appeal held that section 7 of the Accessories and Abettors
Act 1861 did not confer on justice jurisdiction to try accessories in any case in which they had
jurisdiction to try the principal felony. This conclusion was reached after considering, inter alia,
subsequent statutes: "whatever may be the reason, certainly since 1879 it has been the policy of
the legislature not to give justices summary jurisdiction to deal with accessories after the fact."

A stone was held not to come within the words "any dangerous or offensive weapon or
instrument" in section 28 (1) of the Larceny Act 1916 by reference to the definition of an
offensive weapon in the Prevention of Crimes Act 1953 and to section 23 (5) of the Firearms Act
1937. The latter section provided that an unloaded firearm or imitation firearm should be deemed
to be an offensive weapon for the purposes of section 28 (1) of the Larceny Act, and this
suggested "that the words of this provision of the Larceny Act 1916 are dealing with weapons or
instruments adapted or intended for causing injury to a human being, otherwise it seems . . .
difficult to understand why this reference to unloaded firearms, or imitation firearms, should
have been brought into force.

INTERPRETATION PLACED UPON ACTS OF SIMILAR SCOPE

The doctrine of stare decisis applies in the usual way to cases which determine the interpretation
of particular statutory provisions.

Occasionally, the construction which has been placed on an earlier Act is adopted even though
that statute is not in pari materia with the one to be construed. But it is fallacious to regard the
construction put upon a statute as controlling Acts not dealing with a similar subject-matter.

Where legislation is repealed and re-enacted in substantially the same terms, the new legislation
is taken to have been drafted with knowledge of the judicial decisions on the old, and will be
interpreted, in the light of those decisions. This does not, however, prevent the court from
overruling an old decision which it considers to have been, incorrectly decided.

STATUTORY INSTRUMENTS

Statutes being a superior, and statutory instruments an inferior, form of legislation, statutes may
of course he referred to for the purpose of interpreting statutory instrument. The extent to which
statutory instruments are a permissible aid in the construction of statutes is more doubtful. It is
impossible to derive any settled principle from the recent cases on statutory instruments.

In Britt v. Buckinghamshire County Council, the court had to consider the statement of
Upjohn L.J., in delivering the judgment of the court in a case heard three years before, that "we
doubt very much whether it is right to construe the words of the section by reference to
regulations made under powers therein contained.' Britt's case, the court held that where a statute
gave .power to minister to prescribe by, regulations "exceptions and modifications to an Act, the
regulations (which had come into force at the time as the Act) might legitimately be used in
construing the Act. Harman L.J. (at pp. 88, 89) distinguished Upjohn L.J.'s statement the ground
that in the present case there was "a process which I have, not seen anywhere else. There is a
power given by the Act itself the Minister to modify another section of the Act so that when the
Minister does produce that modification . . . that regulation becomes in fact part of the Act. It is
like an amending section of the Act. So that in my judgment that regulation can be referred to
because it i› embodied in the Act itself and, having a quasi-parliamentary validity is a good
indication of the wishes of the legislature, just as much as if it were enacted in the Act itself . . .
It is not a question of construing an Act by subsequent regulations, in the ordinary sense of those
word.

It seems therefore that, with this one exception, statutory regulations should not be used as aids
to construction

SUBSIDIARY RULES OF INTERPRETATION

SAME WORD SAME MEANING

If the legislator uses the same word or phrase in similar contexts, he must be presumed to intend
it in each place to bear the same meaning.1 Case: Bhogilal Chunnilal v State of Bombay: The
court interpreted the word ‘statement’ to have the same meaning in section 157 as it had in other
sections. Once ‘sum’ was defined for the purpose of one sub section, the same meaning was to
be given to the word in the next sub section. 2 However, if a statute is very technical (for example
the copyright act) it can be dangerous to assume than the same word has the same meaning
throughout.3 Case: Maharaj Singh v State of UP, AIR 1976 SC 2602, p 2608: Section 117(1) of
the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, authorises the State
Government to declare that hats, bazars and melas which had vested in the State shall vest in the
Gaon Sabhas. Interpreting this section, it was held by the Supreme Court that although the
vesting in the State was absolute, the vesting in the Sabha was limited to possession and
management subject to divestiture by Government. This illustrates that a word which is used
more than once in the same sub-section of a section may connote and denote divergent things
depending upon the context.

USE OF DIFFERENT WORDS

When in relation to the same subject-matter, different words are used in the same statute, there is
a presumption that they are not used in the same sense. Case: Labour Commissioner, MP v
Burhanpur Tapti Mills Ltd, AIR 1964 SC 1687, pp 1688 (case taught in class): the phrase
"rendered illegal" occurring in section 42 of the Central Provinces and Berar Industrial Disputes
and Settlement Act, 1947 was construed to bear a different meaning from the phrase "held
illegal" used in sections 43, 44 and 45 of the same statute. However, much weight to the
presumption arising out of use of different words in different parts of a statute cannot be given
when dealing with a long complicated statute, for instance, a consolidating Act containing
1
Chairman Indore Vikas Pradhikaran v Pure Industrial Coke and Chemicals Ltd, (2007) 8 SCC 705 para 70.
2
Hyder Consulting (UK) Ltd v Governor, State of Orissa, (2015) 2 SCC 189, pp 200 to 202
3
Infabrics Ltd v Jaytex Ltd, (1981) 1 All ER 1067, p 1066.
incongruous provisions lumped together.4 Case: Econ Antri Ltd v Rom Industries Ltd, (2014) 11
SCC 769, p 789: the Supreme Court has held that the words "of", "from" and "after", may, in a
given case, mean really the same thing, and accordingly, the word "of" occurring in sections
138(c) and 142(b) of the Negotiable Instruments Act, 1881, is not to be interpreted differently as
against the word "from" occurring in section 138(a) of the Act. Therefore, for the purposes of
section 142(b) of the Act, which prescribes that the complaint is to be filed within 30 days "of"
the date on which the cause of action arises, the starting day on which the cause of action arises
is also to be included while computing the period of 30 days.

RULE OF LAST ANTECEDENT

The rule implies that qualifier phrase applies only to the last word This rule is, however,
subordinate to context and is better stated by saying that a qualifying phrase ought to be referred
to the next antecedent which will make sense with the context and to which the context appears
properly to relate it.5 Case: Aswini Kumar Ghose v Arbinda Bose, AIR 1952 SC 369, p 376(case
taught in class): the case involved section 2 of the Supreme Court Advocates (Practice in High
Courts) Act 1951, which reads "notwithstanding anything contained in the Indian Bar Councils
Act, 1926, or in any other law regulating the conditions subject to which a person not entered in
the roll of Advocates of a High Court may be permitted to practise in that High Court, every
Advocate of the Supreme Court shall be entitled as of right to practice in any High Court
whether or not he is an advocate of that High Court". It was held that the adjectival clause
"regulating the conditions etc.", qualified the word "law" and not the words "Bar Council Act".
Case: Regional Provident Fund Commissioner, Bombay v Shree Krishna Metal Manufacturing
Co, Bhandara, AIR 1962 SC 1536, p 1540: case relates to the construction of section 1(3)(a) of
the Employees' Provident Funds Act, 1952 which reads: "Subject to the provisions contained in
section 16, it (the Act) applies to every establishment which is a factory engaged in any industry
specified in Schedule I and in which fifty or more persons are employed". The contention before
the court was that the requirement that the workmen employed should be fifty or more governed
the word "industry" and not the word "factory"; and in support of this it was urged that the
pronoun "which", must under the ordinary rules of grammar qualify the noun immediately
preceding it and that took it to the word "industry" rather than to the word "factory". This
contention was rejected on the basis of the context; and it was held that the requirement as to the
prescribed number qualified the word "factory" and not the word "industry". Further, "where
several words are followed by a general expression which is as much applicable to the first and
other words as to the last, that expression is not limited to the last word, but applies to all. For
instance, in 'horses, oxen, pigs and sheep, from whatever country they may come'—the later
words would apply to horses as much as to sheep."6

4
Qualter Hall & Co v Board of Trade, (1961) 1 All ER 210, p 215
5
Regional Provident Fund Commissioner, Bombay v Shree Krishna Metal Manufacturing Co, Bhandara, AIR 1962
SC 1536
6
Great Western Rly Co v Swindon and Cheltenham Extension Rly Co, (1884) 9 AC 787, p 808.
 NON OBSTANTE CLAUSE

A clause beginning with "notwithstanding anything contained in this Act or in some particular
provision in the Act or in some particular Act or in any law for the time being in force", is
sometimes appended to a section in the beginning, with a view to give the enacting part of the
section in case of conflict an overriding effect over the provision or Act mentioned in the non
obstante clause. The phrase "notwithstanding anything in" is used in contradistinction to the
phrase "subject to", 47. the latter conveying the idea of a provision yielding place to another
provision or other provisions to which it is made subject. A non obstante clause must also be
distinguished from the phrase "without prejudice". A provision enacted "without prejudice" to
another provision has not the effect of affecting the operation of the other provision and any
action taken under it must not be inconsistent with such other provision. Notwithstanding clause
must also be distinguished from the phrase "save as otherwise provided" which is a "reflection of
the words 'except' – or 'save' – as hereinafter excepted".

While interpreting a non statute clause the court is required to find out the extent to which the
Legislature intended to give it an overriding effect. The expression "notwithstanding anything in
any other law" occurring in a section of an Act cannot be construed to take away the effect of
any provision of the Act in which that section appears. A provision beginning with the words
"Notwithstanding anything in this Constitution" added in the Constitution by a Constitution
Amendment Act cannot be construed as taking away the provision outside the limitations on the
amending power and it has to be harmoniously construed consistent with the foundational
principles and basic features of the Constitution. The non obstante clause need not necessarily
and always be co-extensive with the operative part so as to have the effect of cutting down the
clear terms of an enactment. If the words of the enactment are clear and are capable of only one
interpretation on a plain and grammatical construction of the words thereof a non obstante clause
cannot cut down the construction and restrict the scope of its operation. In such cases the non
obstante clause has to be read as clarifying the whole position and must be understood to have
been incorporated in the enactment by the Legislature by way of abundant caution and not by
way of limiting the ambit and scope of the operative part of the enactment.7

Case: Aswini Kumar Ghosh v Arabinda Bose, AIR 1952 SC 369 (taught in class): the question
arose as to the true construction of section 2 of the Supreme Court Advocates (Practice in High
Courts) Act, 1951, which contained a non obstante clause in the following form:
"Notwithstanding anything contained in the Indian Bar Councils Act, 1926, or in any other law
regulating the conditions subject to which a person not entered in the roll of Advocates of a High
Court may be permitted to practise in that High Court". The Calcutta High Court in construing
section 2 of the Act held that an advocate of the Supreme Court was not entitled to act on the
original side of that High Court. This result was reached by limiting the enacting part of the
section by the non obstante clause. Case: PEK Kalliani Amma v K Devi, 1996 (4) Scale 131

7
Dominion of India v Shrinbai A Irani, AIR 1954 SC 596, pp 599, 600
(taught in class):Section 16 of the Hindu Marriage Act, 1955 which legitimatises children born
of void marriages, opens with a non obstante clause "notwith-standing that a marriage is null and
void under section 11", but having regard to the language and beneficient purpose of the enacting
clause it was held to be not restricted to marriages that were void under section 11 and children
born of all void marriages were held to be legitimatized.

When the section containing a non-obstante clause does not refer to any particular provision of
an Act which it intends to override but refers to the provisions of the statute generally, it is not
permissible to hold that it excludes the whole Act, and there requires to be a determination as to
which provision answers the description and which does not. Accordingly, the Supreme Court
held that the non-obstante clause in section 142 of the Negotiable Instruments Act, 1881, which
starts with the words "Notwithstanding anything contained in the Code of Criminal Procedure",
is restricted to exclude two things only from the Code: (a) exclusion of oral complaints, and (b)
exclusion of cognizance on complaint by anybody other than the payee or the holder in due
course.8 However, the wide meaning of the non obsante clause and the enacting words following
it cannot be curtailed when the use of wide language accords with the object of the Act. Case:
Maktool Singh v State of Punjab, JT 1999 (2) SC 176, p 179 (taught in class): section 32A of
the Narcotic Drugs and Psychotropic Substances Act reads: "Notwithstanding anything
contained in the CrPC, 1973 or any other law for the time being in force—no sentence awarded
under this Act—shall be suspended or remitted or commuted." Section 36 provides for appeals
and revision to the High Court and says that it "may exercise, so far as may be applicable, all the
powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure, 1973. The
question before the Supreme Court was whether the High Court could exercise its power of
suspending the sentence under section 389 which occurs in Chapter XXIX of the CrPC, pending
an appeal. Having regard to the width of the notwithstanding clause in section 36A, which refers
to the entire CrPC and any other law for the time being in force, as also to the qualifying words
"so far as may be applicable" in section 36B, it was held that the High Court has no such power
and cannot suspend the sentence awarded under the NDPS Act pending an appeal before it.

Sometimes one finds two or more enactments operating in the same field and each containing a
non obstante clause stating that its provisions will have effect "notwithstanding anything
inconsistent therewith contained in any other law for the time being in force". The conflict in
such cases is resolved on consideration of purpose and policy underlying the enactments and the
language used in them.9 Another test that is applied is that the later enactment normally prevails
over the earlier one. It is also relevant to consider as to whether any of the two enactments can be
described a special one; in that case the special one may prevail over the more general one
notwithstanding that the general one is later in time. Case: Maharashtra Tubes Ltd v State
Industrial and Investment Corp of India, JT 1993 (1) SC 310: A conflict between provisions of
two special statutes namely the Financial Corporation Act, 1951 and the Sick Industries

8
Indra Kumar Patodia v Reliance Industries Ltd, (2012) 13 SCC 1, p 10
9
Sarwan Singh v Kasturilal, AIR 1977 SC 265, pp 274, 275.
Companies (Special Provisions) Act, 1985, both containing non obstante clauses (section 46B of
the 1951 Act and section 32 of the 1985 Act) was resolved by giving overriding effect to the
1985 Act on the ground that the 1985 Act being a subsequent enactment, the non-obstante clause
therein would prevail over the non-obstante clause in the 1951 Act unless it is found that 1985
Act is a general statute and the 1951 statute is a special one.

A conflict between two special Acts which have both notwithstanding clauses can also be
resolved by seeing which is more special than the other in addition to the consideration that the
conflict arose because of a provision added later in the Act which is more special. 10 If the Acts
containing wide notwithstanding clauses covering "any other law for the time being in force"
operate in different fields, harmonious construction has to be applied and when in a given case
the application of the earlier Act is attracted, the question of its giving way to the later Act would
not arise. Case: Jay Engineering Works Ltd v Industry Facilitation Council, (2006) 8 SCC 677: it
was held that where section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985
which bars execution against any of the properties of the company without the consent of the
Board for Industrial and Financial Reconstruction, applies an award made by the Industry
Facilitation Council under section 6(2) of the Interest on Delayed Payments to Small Scale and
Ancillary Industrial Undertakings Act, 1993 which is deemed to be made under the Arbitration
and Conciliation Act, 1996, cannot be executed without the consent of the Board as required by
section 22 of the 1985 Act. 97. Both section 22 of the 1985 Act and section 10 of the 1993 Act
contain wide notwithstanding clauses but as both the Acts operate in different fields, harmonious
construction was applied and operation of section 22 of the 1985 Act in the case could not be
negatived by the notwithstanding clause in section 10 of the 1993 Act.

In the absence of a non obstante clause, the applicability of provisions of other statutes cannot be
excluded. Case: State (NCT of Delhi) v Sanjay, (2014) 9 SCC 772: Section 22 of the Mines and
Minerals (Development and Regulation) Act, 1957 ("MMDR Act"), provides that no Court shall
take cognizance of any offence punishable under the Act or any Rules made thereunder except
upon complaint in writing made by a person authorised in this behalf by the Central or State
Government. The Supreme Court observed that the provision does not begin with a non obstante
clause, and accordingly held that though in a case where mining activity is carried out in
contravention of the MMDR Act, a complaint can be filed only by an authorised person as
provided under section 22 of the MMDR Act, mere inititation of proceedings under the MMDR
Act on the basis of such a complaint would not debar the police from taking action against
persons for committing theft of sand and minerals under the provisions of the Indian Penal Code
by exercising powers under the CrPC. Hence, the police can register a case, investigate the same
and submit a report under section 173, CrPC, before a Magistrate for taking cognizance as
provided under section 190(1)(d) of the CrPC.

LEGAL FICTION

10
Bank of India v Ketan Parekh, (2008) 8 SCC 148.
A legal Fiction is a deeming provision for the purpose of assuming existence of a fact which
does not really exist provided the declaration of non-existent facts as existing does not offend the
constitution. The words "as if" can also be used to create a legal fiction besides the word
‘deemed’. In interpreting a provision creating a legal fiction, the court is to ascertain for what
purpose the fiction is created, and after ascertaining this, the court is to assume all those facts and
consequences which are incidental or inevitable corollaries to the giving effect to the fiction. But
in so construing the fiction it is not to be extended beyond the purpose for which it is created, or
beyond the language of the section by which it is created. It cannot also be extended by
importing another fiction.11 After ascertaining the purpose, "full effect must be given to the
statutory fiction and it should be carried to its logical conclusion" and to that end "it would be
proper and even necessary to assume all those facts on which alone the fiction can operate".12

Case: Voltas Ltd, Bombay v UOI, 1995 (taught in class): Section 33(1) of the Monopolies and
Restrictive Trade Practices Act, 1969 as amended declares that any agreement falling within
clauses (a) to (l) shall be deemed to be an agreement relating to restrictive trade practices and
shall be subject to registration. Construing this provision it was held that an agreement falling
within any of the clauses (a) to (l) will be held to be an agreement relating to restrictive trade
practice because of the legal fiction and it will be immaterial to consider whether it falls within
the definition of restrictive trade practice in section 2(o). 37. No exception can be taken to this
view. It was, however, further held that if a person gets an agreement registered it is not opento
him to contend that the agreement does not relate to restrictive trade practice as it does not fall
under any of the clauses (a) to (l) or within the definition in section 2(o). 38. It is submitted that
this view is open to the objection that it is not the registration of an agreement which makes the
legal fiction operate but the fact that the agreement falls under any of the clauses (a) to (l).
Therefore, if a person by way of abundant caution gets an agreement registered to avoid
possibility of prosecution it should be open to him to contend that the agreement does not fall
under any of the clauses and is not a restrictive trade agreement when proceedings are taken
before the commission under section 37.

Further, a legal fiction created in a State Act by borrowing a definition from a Central Act in the
concurrent field will be restricted for purposes of the State Act and will not have the effect of
widening the definition in the Central Act unless that definition is properly amended with due
compliance with Article 254 of the Constitution. Case: State of Maharashtra v Laljit Rajshi Shah,
AIR 2000 SC 937 (taught in class): section 161 of the Maharashtra Co-operative Societies Act,
1961, by which officers under the Act are deemed to be public servants within the meaning of
section 21 of the Indian Penal Code, 1860 was held to be ineffective to widen the definition of
public servant in section 21 of the Penal Code for purposes of offences under the Penal Code or
the Prevention of Corruption Act, 1947.

11
State of WB v Sadam K Bormal, AIR 2004 SC 3666
12
CIT, Delhi v S Teja Singh, AIR 1959 SC 352, p 355.
Legal fiction cannot be expanded to more than what it is. Case: Vodafone International Holdings
BV v UOI, (2012): section 9(1)(i) of the Income-tax Act, 1961 provides that all income accruing
or arising, whether directly or indirectly, inter alia through the transfer of a capital asset situated
in India, shall be deemed to accrue or arise in India. The Supreme Court held that income
accruing or arising to a non-resident outside India, on transfer of a capital asset situated in India,
is fictionally deemed to accrue or arise in India, which income is liable to be taxed by reason of
section 5(2)(b) of the Act. However, the legal fiction has a limited scope and cannot be expanded
by giving a purposive interpretation to the same, particularly if the result of such interpretation is
to transform the concept of chargeability. Therefore, it was held that section 9(1)(i) cannot, by a
process of interpretation, be extended to cover indirect transfers of capital assets/property
situated in India, as to do so would amount to changing the context and ambit of section 9(1)(i).

The Legislature may sometimes create a chain of fictions by the same Act or by succeeding Acts.
Case: Yellappagouda Shankargouda Patil v Basangouda Shiddangouda Patil, AIR 1960 SC 808:
By section 8 of the Abolition of Privy Council Jurisdiction Act, 1949, any order made by His
Majesty in Council on an Indian Appeal was to have effect as if it were an order or decree made
by the Federal Court and by Article 374(2) of the Constitution, judgments and orders of the
Federal Court are to have the same effect as if they had been delivered or made by the Supreme
Court. The legal effect of these two fictions is, that an order in an Indian Appeal made by the
Privy Council before its jurisdiction was abolished, is to have effect as if it were an order made
by the Supreme Court.

Outside the bounds of the legal fiction the difference between the reality and the fiction may still
persist in the provisions of the same Act which creates the fiction and the difference may be
ascertained by referring to the subject and context of those provisions. It must, also, be noticed
that the word "deemed" which is normally used to create a statutory fiction may also be used to
put beyond doubt a meaning which may otherwise be uncertain or to give to the statutory
language a comprehensive description that it includes what is obvious, what is uncertain and
what is in ordinary sense impossible.13

The principle of Legal fiction has also been applied to a non-statutory legal fiction that acquittal
in appeal takes effect retrospectively and wipes out the sentence awarded by the lower court.
This retrospective operation of acquittal only means that the stigma attached to the conviction
and the rigour of the sentence are completely obliterated but that does not mean that the fact of
conviction and sentence is wiped out and if a person was disqualified for being chosen to fill the
seat for which an election is held on the date of scrutiny of his nomination paper by the returning
officer because of his conviction, he will become qualified if later on his conviction is set aside
in appeal.14

MANDATORY AND DIRECTORY PROVISIONS

13
Hira H Advani v State of Maharashtra, AIR 1971 SC 44, p 54.
14
K Prabhakaran v P Jayarajan, (2005) 1 SCC 754, p 772.
 (a) General

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.15 Therefore, if object of the enactment will be defeated by
holding the same directory, it will be construed as mandatory, whereas if by holding it
mandatory serious general inconvenience will be created to innocent persons without very much
furthering the object of enactment, the same will be construed as directory. The use of the words
"as nearly as may be" in contrast to the words "at least" will prima facie indicate a directory
requirement; negative words a mandatory requirement, "may" a directory requirement and
"shall" a mandatory requirement. If a provision is mandatory an act done in breach thereof will
be invalid, but if it is directory the act will be valid although the non-compliance may give rise to
some other penalty if provided by the statute. Case: State v NS Gnaneswaran, (2013) 3 SCC 594,
p 603: section 154(2) of the CrPC, 1973 provides that a copy of the information (FIR) recorded
under section 154(1) "shall" be given forthwith, free of cost, to the informant. The Supreme
Court held that in order to declare a provision mandatory, the test to be applied is as to whether
non-compliance with the provision could render the entire proceedings invalid, and depends on
the intent of the Legislature, and that the language used was not determinative of this issue.
Applying this test, the court reached the inescapable conclusion that the section is merely
directory and not mandatory, as it prescribes only a duty to give a copy of the FIR.

Substantial compliance of an enactment is insisted, where mandatory and directory requirements

are lumped together, for in such a case, if mandatory requirements are complied with, it will be
proper to say that the enactment has been substantially complied with notwithstanding the non-
compliance of directory requirements. Case: Rai Vimal Krishna v State of Bihar, (2003) 6 SCC
401: Section 149(1) of the Patna Municipal Corporation Act, 1951 requires that the Executive
Officer shall sign the assessment list and "shall give public notice by beat of drum and by
displaying placards posted in conspicuous places". Interpreting the section it was held that
requirement of public notice was mandatory but the requirement of manner of publication was
directory, therefore, public notice in the newspapers was substantial compliance though there
was no publication by beat of drum or by posting placards.

A directory provision may be distinguished from a discretionary power. The former gives no
discretion and is intended to be obeyed, but a failure to obey it does not render a thing duly done
in disobedience of it a nullity. The latter, i.e., a discretionary power leaves the donee of the
power free to use or not to use it at his discretion. The general rule that non-compliance of
mandatory requirements results in nullification of the act is subject at least to two exceptions.
One exception is when performance of the requirement is impossible; performance is then
excused. 88. Another exception is of waiver. If certain requirements or conditions are provided

15
Liverpool Borough Bank v Turner, (1861) 30 LJ Ch 379, pp 380, 381.
by a statute in the interest of a particular person, the requirements or conditions although
mandatory may be waived by him and in such a case the act done will be valid even if the
requirement or condition has not been performed. The principle of waiver applies when the
requirements of the statute do not involve any question of public interests or public policy for
when the conditions are prescribed for protection of the public or on grounds of public policy,
the performance of the conditions cannot be waived. 92. But it is possible that when conditions
are prescribed for the protection of the public the resultant act done in violation of the conditions
though invalid against persons generally may be valid between particular persons.

While considering the non-compliance with a procedural requirement, it has to be kept in view
that such a requirement is designed to facilitate justice and further its ends and therefore, if the
consequence of non-compliance is not provided, the requirement may be held to be directory.
Case: Topline Shoes Ltd v Corp Bank: the requirement in section 13(2) of the Consumer
Protection Act, 1986 that the opposite party is to file its reply within thirty days or such extended
period not exceeding fifteen days as may be granted by the District Forum has been held to be
directory and the Forum cannot be said to be debarred from taking on record a reply filed beyond
forty-five days.

Sometimes a question of prejudice may also have to be considered while considering the effect
of non-compliance with a procedural requirement.

(b) When consequences provided by statute

When consequence of nullification on failure to comply with a prescribed requirement is

provided by the statute itself, there can be no manner of doubt that such statutory requirement
must be interpreted as mandatory. Case: Secretary of State v Kuchwar Lime & Stone Co Ltd,
AIR 1938 PC 20: The requirement as to registration of certain documents prescribed by section
17 of the Registration Act, 1908, or by any provision of the Transfer of Property Act, 1882, is
mandatory since the consequence of non-registration is provided by section 49 of the
Registration Act in that such documents if not registered do not affect the property comprised
therein.

In some cases the consequence provided for breach of an imperative duty may itself require
construction in the light of other provisions of the Act. Case: Attorney General's Reference (No.
3 of 1999), (2001) 1 All ER 577: section 64 of the Police and Criminal Evidence Act, 1984
prohibits use of a sample, which should have been destroyed, as evidence or for investigation
was construed not to affect admissibility of other evidence in court collected in an investigation
which was prohibited provided it did not affect fairness of the trial under section 78 of the same
Act.

When the statute does not expressly provide for nullification as a consequence of the non-
compliance of the statutory injunction but imposes expressly some other penalty, it is a question
of construction in each given case whether the Legislature intended to lay down an absolute
prohibition or merely to make the offending person liable for the penalty. If the statute, having
regard to its object, purpose and scope is found to be directory, penalty may be incurred for non-
compliance but the act or thing done is regarded as good. Further a provision expressly nullifying
an agreement prima facie absolutely may as a proper construction be creating merely a
temporaneous or transient nullity.

(c) Use of negative words

Another mode of showing a clear intention that the provision enacted is mandatory, is by
clothing the command in a negative form. Case: General Officer Commanding, Rashtriya Rifles
v CBI, (2012) 6 SCC 228: Section 7 of the Armed Forces (Jammu and Kashmir) Special Powers
Act, 1990, provides that "no" prosecution, suit or other legal proceeding shall be instituted,
except with the previous sanction of the Central Government, against any person in respect of
anything done or purported to be done in exercise of the powers conferred by the Act. The
Supreme Court held that use of the word "no" in section 7 of the Act denotes the mandatory
requirement of obtaining prior sanction of the Central Government before institution of the
prosecution, suit or legal proceedings.

But the principle is not without exception. Section 256 of the Government of India Act, 1935,
was construed by the Federal Court as directory though worded in the negative form. Directions
relating to solemnization of marriages though using negative words have been construed as
directory in cases where the enactments in question did not provide for the consequence that the
marriage in breach of those directions shall be invalid. Considerations of general inconvenience,
which would have resulted in holding these enactments mandatory, appear to have outweighed
the effect of the negative words in reaching the conclusion that they were in their true meaning
merely directory.

The rule that negative words are usually mandatory, is like any other rule subordinate to the
context, and the object intended to be achieved by the particular requirement. Case: Bombay
Union of Journalists v State of Bombay, AIR 1964 SC 1617: in the construction of section 25F
of the Industrial Disputes Act, 1947, compliance of clause (c) has been held to be directory;
although compliance of clauses (a) and (b) which are connected by the same negative words is
understood as mandatory.

(d) Affirmative words may imply a negative

Affirmative words stand at a weaker footing than negative words for reading the provision as
mandatory but affirmative words may also be so limiting as to imply a negative. Case: Pir Bux v
Mohamed Tahar, AIR 1934 PC 235, p 237: the provisions of sections 54, 59, 107 and 123 of the
Transfer of Property Act, 1882, prescribing modes of transfer by sale, mortgage, lease or gift
were relevant in the case. The formalities prescribed by these provisions for effecting a transfer
of the nature mentioned in them are mandatory and the language used although affirmative
clearly imports a negative.
 (e) Use of "shall" or "shall and may"; "must" and "should"

The use of word "shall" raises a presumption that the particular provision is imperative.
However, this prima facie inference about the provision being imperative may be rebutted by
other considerations such as object and scope of the enactment and the consequences flowing
from such construction. There are numerous cases where the word "shall" has, therefore, been
construed as merely directory. Case: Vijay Dhanuka v Najima Mamtaj, (2014) 14 SCC 638:
section 202 of the CrPC provides that the Magistrate "shall", in a case where the accused is
residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of
process against the accused, and either inquire into the case himself or direct an investigation to
be made by a police officer or by such other person as he thinks fit, for the purpose of deciding
whether or not there is sufficient ground for proceeding. The Supreme Court held that the word
"shall" is ordinarily mandatory but sometimes, taking into account the context or the intention, it
can be held to be directory. However, on looking at the intention of the Legislature, the court
found that the provision is aimed at preventing innocent persons from being harassed by
unscrupulous persons making false complaints, and therefore the inquiry or investigation
contemplated by the provision before issuing summons was held to be mandatory.

If different provisions are connected with the same word "shall", and if with respect to some of
them the intention of the Legislature is clear that the word "shall" in relation to them must be
given an obligatory or a directory meaning, it may indicate that with respect to other provisions
also, the same construction should be placed. If the word "shall" has been substituted for the
word "may" by an amendment, it will be a very strong indication that use of "shall" makes the
provision imperative. Similar will be the position when the Bill as introduced used the word
"may" and the Parliament substituted the word "shall" in its place while passing the Act. The use
of word "may" at one place and "shall" at another place in the same section may strengthen the
inference that these words have been used in their primary sense and that "shall" should be
construed as mandatory. 68. When the expressions "shall" and "may" are defined in the Act (for
example "shall presume" and "may presume" in section 4 of the Evidence Act, 1872) the
expressions have to be given the meaning as defined.

The use of the word "must" in place of "shall" will itself be sufficient to hold the provision to be
mandatory and it will not be necessary to pursue the enquiry any further. 75. The use of the word
"should" instead of "must" may not justify the inference that the provision is directory if the
context shows otherwise.

CONJUNCTIVE AND DISJUNCTIVE WORDS `OR' AND 'AND’

 Disjunctive - lacking connection or consistency. Conjunctive - relating to or forming a

connection or combination of things.
 Or is normally used in a disjunctive context while and is used as conjunctive. But in
some cases or may mean conjunctive and and may mean disjunctive. This is done to give
effect to the intention of the legislature.
 This is usually not the case. But if literally interpreting the terms or and and gives rise to
an unintelligible result or is against the intention of the legislature, or may be interpreted
as and and vice versa.
 Examples-
 R. v. Oxfordshire County Council, (1999) 3 All ER 385, p. 396 (HL). Section
22(1) of Common Regulation, 1965 uses the expression sports and pastimes. Lord
Hoffman in this case stated that sports and pastimes are not two separate classes
of activities but a single composite class which uses the two words to pre-
emptively rebut arguments as to whether an activity is a sport or pastime. As long
as the activity can be called a sport or a pastime, it falls within the composite
class.
 Federal Steam Navigation Co. Ltd. v. Department of Trade and Industry, 2(1974)
All ER 97 (HL). The word ‘owner or master’ as they occurred in the Navigable
Waters Act,1955 was construed by the House of Lords to mean ‘Owner and
master’. Thus in this particular case, both the owner as well as the master were
punished as the literal interpretation of or would have produced an absurd result
of leaving it to the Executive to select whether the owner or master should be
prosecuted. The act did not give any guidelines for this selection and this would
have been against constitutional practice.
 J. Jayalalitha v. Union of India, AIR 1999 SC 1912, p. 1919. Section 3 of the
Prevention of Corruption Act empowers the Government to appoint as many
special judges as may be necessary for such area or areas or for such case or
group of cases, as may be specified in the notification. The italicised or was
construed to mean that the Government has the power to do either or both the
things. They could appoint a special judge for a case or a group of cases in an area
where a special judge has already been appointed.
 R. v. Oakes, (1959) 2 All ER 92. Section 7 of the Official Secrets Act of 1920
states Any person who attempts to commit any offence under the principal Act or
this Act, or solicits or, incites or endeavours to persuade another person to commit
an offence, or aids or abets, and does any, act preparatory to the commission of an
offence. The and was interpreted to mean or, as the result produced by the literal
interpretation of the term and led to absurd results which was against the intention
of the legislature.
CONSTRUCTION OF GENERAL WORDS
 General words in a statute must receive general construction. If there is something in the
Act itself, such as the subject matter of the Act or the context in which the said words are
used to show the intention of the legislature, they must be given a restrictive meaning.
 Since generalwords have ordinarily a general meaning, the first task in construingsuch
words, as in construing any word, is to give the words their plain andordinary meaning
and then to see' whether the context or some principle ofconstruction requires that some
qualified meaning should be placed onthose words.
 It is a recognised principle of construction", observedKAP.JR, J. "that general words and
phrases, however wide andcomprehensive they may be, in their literal sense must usually
be construedas being limited to the actual object of the Act.
 Examples,
 Smith v. East Elloe Rural District Council, (1956) I All ER 855 (HL). Paragraph
16 of Schedule 1 (Part 4) of the Acquisition of Land Act,1946, which provides
that a compulsory purchase order shall not be questioned'in any legal proceeding
whatsoever', was construed by the Houseof Lords as prohibiting any attack to the
order including one on the groundthat the order was made in bad faith.14 LORD
RADCLIFFE in that case said:"It is quite true, as is. said, that these are merely
general words; but then,unless there 'is some compelling reason to the contrary, I
should be inclined to. regard general words as the most apt to produce a
correspondinggeneral result".' VISCOUNT SIMONDS in the same, case
observed: "Thereis, in fact, no justification for the introduction of limiting words
such as `ifmade in good faith', and there is the less reason for doing so when
thosewords would have the effect of depriving the express words 'in any
legalproceedings whatsoever' of their full meaning and content".
 India Carbon Ltd. v. Superintendent of Taxes, Gauhati, AIR 1972 SC 15. the
Supreme Court while construing the words 'any connection whatever'refused to
limit them to direct connections for the restricted constructionwould not have
given full meaning to the words 'any' and 'whatever." Onthe same principle 'the
words 'coal including coke in all its form' wereconstrued to include petroleum
coke. A restricted meaning that thesewords were limited to coke derived from
coal would have given no weight to the generality of the words in all its form.
 Gardiner v. Admiralty Commrs., (1964) 2 All ER 93 (HL). This case dealt with
section 26 of the Factories Act, 1937, which enjoins occupiers of a factory to
provide safe means of access to 'every place' at which any person has at any time
to work, the House of Lords held that a point on a vessel, which was being
repaired in a dockyard, where a workman had to work was within the words
'every place' as occurring in the section. It was argued in this case that section 26
was to be found in fasciculus of sections dealing with a safety provision which
were restricted to plant and premises of the factory, and therefore, the words
'every place' in section 26 should also be restricted to plant and premises of the
 factory thereby excluding any object which came for repairs in the factory. This
argument was rejected and in that connection LORD GUEST observed: "There is
no principle which would compel a Court to restrict general words to be found in
one section by a limitation to be found in other surrounding sections dealing with
different matters
 State of Maharashtra v. Marwanjee P. Desai, AIR 2002 SC 456. the
expression'every order' in section 7 of the Bombay Government
Premises(Eviction) Act, 1956 which provides for an appeal against 'every order'
ofthe competent authority was construed to confer a right of appeal to
theGovernment if the order be against the Government and the expressionwas not
held restricted to orders in favour of the Government appealableby the alleged
unauthorised occupier.

PRINCIPLE OF LEGALITY

 As statutes are not enacted in a vacuum, it is assumed that long standingprinciples of

constitutional law and administrative law are not displaced byuse of merely general
words.
 Sir John Romilly stated, “The general words of the Act are not to be so construed as to
alter the previous policy of the law, unless no sense or meaning can be applied to those
words consistently with intention of preserving the previous policy untouched”.
 Since every new law involves a change in the previous policy, this principle should be
normally confined to cases where the abrogation of a long standing rule of law is in
question and it must be applied with caution.
 Examples-
 R v Secretary of State for the Home Department, ex parte Simms.
Facts- 2 prisoners serving life sentences brought judicial review proceedings
against the Home Secretary’s contention that they could not do oral interviews
with journalists unless no part is published. The home secretary had this power
under the Prison Act 1952, to restrict oral interviews. The prisoners stated that
this infringed on the right of journalists to free speech.

Judgement – Lord Hoffman stated that Parliament can, if it chooses to, legislate
contrary to fundamental principles of human rights. The constraints upon its
exercise by Parliament are ultimately political, not legal. But the principle of
legality means that Parliament must squarely confront what it is doing and accept
the political cost. Fundamental rights cannot be overridden by general or
ambiguous words. This is because there is too great a risk that the full
implications of their unqualified meaning may have passed unnoticed in the
democratic process. In the absence of express language or necessary implication
 to the contrary, the courts therefore presume that even the most general words
were intended to be subject to the basic rights of the individual, and in this way
the courts of the United Kingdom, though
acknowledging the sovereignty of Parliament apply principles of Constitutionality
little different from those which exist in countries re
where the power of the legislature is expressly limited by a constitutional
document.

NOSCITUR A SOCIIS

 LORD MACMILLAN, explains this rule by stating,’ The meaning of a word is to be

judged by the company it keeps.”
 It is a legitimate rule ofconstruction to construe words in an Act of Parliament with
reference towords found in immediate connection with them.
 The doctrine states that associated words take their meaning from one another i.e. the
meaning of the doubtful word can be ascertained by reference to the meaning of
words associated with it.
 This doctrine cannot be applied in cases where it is clear that the wider words have
been used in order to make the scope of the defined word correspondingly wider. It
can only be used in cases where the intention of the legislature in associating wider
words with words of narrower significance is doubtful, or otherwise not clear, can
this rule be applied.
 Examples-
 Stonecraft Enterprises v. Commissioner of Income Tax, (1999) 3 SCC 343. SC
had interpreted that the words “mineral,” “mineral oil,” and “ores” were all
associated words and hence were to be understood together. Section 80HHC, as
inserted by the Finance Act, 1983 in the Income-tax Act, 1961 grants a deduction
from total income of 50% of the profits earned in the business of export of goods
or merchandise; but the sectiondoes not apply to (i) 'mineral oil and (ii) minerals
and ores The assessee claimed deductions under S. 80HHC(2)(b)(ii) of the
Income Tax 1961 for export turnover of granite, citing that the section exempted
mineral oil and ores from the deductions, but not the granite. The SC however,
rejected this interpretation and held that because all mineral, mineral oil and ores
were extracted from earth, including that of granite, the deductions did not apply
to granite as well.
 Scales v. Pickering, 130 ER 840. In a private Act a water company was
empowered 'to break up the soiland pavement of roads, highways, footways,
commons, streets, lanes, alleys,passages and public places' provided they did not
enter upon any privatelands without the consent of the owner and it was
contended by thecompany that this power enabled the company to break up the
soil of aprivate field in which there was a public footway, This contention,
 however,failed and the court construed the word 'footways' from the companyit
kept as meaning those paved footways in large towns which are too narrowto
admit of horses and carriages.
 BageshwariCharan Singh v. Jagannath, AIR 1932 PC 55. In construing the word
'declare' in the phrase 'to create, declare. assign,limit or extinguish' as it occurs in
section 17 of the Indian RegistrationAct, 1908, the Privy Council held that though
the word 'declare' was capableof hearing a wider meaning but in section 17, being
in associationwith other words, its meaning was restricted to connote a definite
changeof legal relationship as distinct from a mere statement of facts.
VISCOUNTDUNEDIN quoted with approval the observations of WEST, J. from
a Bombaycase which are to the following effect: "'Declare' is placed along
with'create', 'limit' or 'extinguish' a right, title or interest and these words implya
change of legal relation to the property by an expression of will embodiedin the
document. -1 think this is equally the case with the word'declare'. It implies a
declaration of will, not a mere statement of fact.
 State of Rajasthan v. Sripal Jain,AIR 1963 SC 1323. Rule 31 of the Rajasthan
Rules of Business, which required that 'proposalsfor dismissing, removing or
compulsory retiring of an Officer'. should be referred to the Governor, was
construed, as not necessitating anysuch reference in cases of compulsory
retirement not amounting to punishment.It was held that the phrase 'compulsory
retirement' as it occurs inthe rule in association with 'dismissal' and 'removal' must
be taken tocover only cases of punishment and not normal cases of compulsory
retirement such as those which result on attaining superannuation age orthose
which fall under Rule 244 of the Civil Service Rules.
EJUSDEM GENERIS

 When particular words pertaining to a class, category or genus are followedby general
words, the general words are construed as limited tothings of the same kind as those
specified. This rule 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 introduction of the words 'whatsoever' after the general words followingparticular
instances of a genus does not exclude the application ofejusdem generis principle. The
Privy Council construed the words 'any other person or persons whatsoever' by this rule
and restricted their meaning to officers of similar kind as specified before these general
words.16
16
Re, Samuel, (1913) AC 514, p. 525 (PC).
  It is essential for application of the ejusdem generis rule that enumeratedthings before the
general words must constitute a category or a genusor a family which admits of a number
of species or members. the specified things preceding generalwords belong to different
categories, this principle of construction willnot apply. Further, mention of a single
species does not constitute a genus. Thus, in the phrase 'a salary or income' as it finds
place in section 60(2) of the Presidency Insolvency Act, 1909 the word 'income' has not
been construed ejusdem generis for the preceding word 'salary' signifies only one species
and does not constitute a genus.17
 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.
 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.
 Examples
 Siddeshwari Cotton (P) Ltd. v. Union of India, AIR 1989 SC 1019. The rule was
applied in construing the words 'any other process' in section 2(f)(v) of the Central
Excises and Salt. Act, 1944 which defines manufacture' in relation to goods in
Item no. 19-I of the Schedule to the Central Excise Tariff Act, 1985 to include
'bleaching mercerising, dyeing, printing, water-proofing, rubberising, shrink-
proofing, organdie processing or any other process—.' The Supreme Court held
that the processes enumerated contemplate processes which import change of a
lasting character to the fabric by either the addition of some chemical into the
fabric or otherwise and 'any other process' in the section must share one or other
of these incidents which constitute manufacture in the extended sense.

PRESUMPTIONS
THE WORDS IN A STATUTE ARE USED PRECISELY AND NOT LOOSELY

The general rule is verbislegis non estrecedendum—You must not vary the words of a statute

Cases:

17
United Town Electric Co. Ltd. v. A.G. for Newfoundland, (1939) 1 All ER 423 (PC).
a. Mayor, Councillors& Burgesses of the Borough of New Plymouth v. Thranaki Electric Power
Board.

Fact: The respondents commenced the action for a determination of the question of the
validity of certain agree- ments to supply electricity to a certain territory. The validity
depended upon the question whether that territory was an "adjoining district" to the appellant.

Ratio:The primary and exact meaning of 'adjoining' is 'conterminous'.

Contention:it cannot be disputed that the word is also used in a loos- er sense as meaning
`near' or 'neighboring'.

Application of principle:

There is presumption that words are used in an Act of Parliament correctly and exactly and
not loosely and inexactly. Upon those who assert that the rule has been broken, the burden of
establishing their proposition lies heavily.' Meaning, they need to show that something in the
Statute means Near. And they can discharge it only by pointing to something in the context
which goes to show that the loose and inexact meaning must be preferred.

b. UdayanChinubhai v. R.C. Bali

Facts:Chinubai(plaintiff-respondent) filed a suit for rendition of accounts and the suit was
decreed. The plaintiff thereafter supplied the deficit court fee and on the date he did so the
decree was prepared and signed.

Contention: When does the limitation period start?

Application of the principle:

Normally under Section 12(2), read with the Explanation, the period between the
pronouncement of the judgment and the signing of the decree cannot be excluded; but in the
present case, it was only after the deposit of the deficit court fee that the decree could be
prepared. And so, the date of the decree would be not the date of the judgement, but the date
of deposit by the plaintiff of the deficit court fee because the decree was not prepared until
the fee was paid.

VESTED RIGHTS ARE NOT, TAKEN AWAY WITHOUT EXPRESS WORDS OR

NECESSARY IMPLICATION OR WITHOUT COMPENSATION.

 Nernopotestmutareconsiliumsuum in alteriusinjuriam -No one can change his plans to the injury
of another. This applies for the legislature as well.
 laws should be construed as prospective and not retrospective, except when they are expressly
made applica- ble to past or pending transactions.
 A statute, gener- ally, is not construed to operate retrospectively and take away a vested right,
except when the cases in which it is to have such retrospective operation are set out therein.
 Therefore, an intention to forfeit established rights will not be presumed, nor will a statute having
such an effect be carried beyond the purpose plainly indicated by construc- tion. Thus, a court
will not so construe a statute as to deprive per- sons of their properties and transfer them to others
without payment of compensation unless such a conclusion is ineluctable on account of policy or
express words.

Cases:

a. Radha Krishna Ayyar v. SundaraswamiIyer[Statutory right to appeal]

Facts: There was no statutory right to appeal against the High Court order in the Income Tax Act,
1918 or Section 66 of the Act of 1922. S.66-A introduced right to appeal in the 1922 act in the
year 1926.

Contention: Whether this new act can be retrospectively be applied?

Principle applied: While provisions of a statute dealing merely with matters of procedure may
properly, unless that construction be textually inadmissible, have retrospective effect attributed to
them, provisions which touch a right in existence at the passing of the statute are not to be applied
retrospectively in the absence of express enactment or necessary intendment.
**Basically, unless it is explicitly stated, retrospective effect cannot be applicable in case where
existing rights are in question.

b. Inglewood Pulp Co. v. New Brunswick Electric Power Collimissam [right to compensation]
Facts: Government expropriated the private property belonging to Mr. X for public use.

Contention: Whether Mr. X should receive compensation?

 Principle:on a contract for sale and purchase of land it is the practice to require the purchaser to
pay interest on his purchase money from the date he took possession. Expropriation under the Act
in question is not effected for private gain, but for the good of the public at large, but for all this,
the owner is deprived of his property in this case as much as in the other, and the rule has long
been accepted in the interpretation of statutes that they are no! to be held to deprive individuals of
property without compensation unless tilt intention to do so is made quite clear.
** There is Right to compensation.

c. Ganpat Rai v. Chamber of Commerce

Facts:application for a certificate for leave to appeal to the Bench was refused. He, however, took
the matter up on appeal but the Division Bench of the HC said that appeal was incompetent.

Contention: Whether there exists the right to appeal?

Principle:a right or appeal from an order of a Single Judge to a Division Bench w/o a certificated
vested in a person.The appellant could not be deprived of this right by a subsequent change in the
law, unless the later enactment provides expressly or by necessary implication for retrospective
effect being given.

d. GarikapatiVeeraya v. N. Subbaiah Choudhry (*Imp)

In this ruling is imp:

(i) That the legal pursuit of remedy, suit, appeal and second appeal are really but steps in a
series of proceedings all connected by an intrin- sic unity and are to.be regarded as one legal
proceeding.

(ii) That the right of appeal is not a mere matter of procedure but a sub- stantive right.

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force
are preserved to the parties thereto till the rest of the career of the suit.

(iv) The right of appeal is a vested right and such a right to enter the superior court accrues to
the litigant and exists as on and from the date the lis commences and although it may be
actually exercised when the adverse judgment is pronounced such right is to be gov- erned by
the law prevailing at the date of the institution of the suit or proceeding and not by the law
that prevails at the date of its deci- sion or at the date of the filing of the appeal.

(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so
provides expressly or by necessary intendment and not otherwise. 

IMP Points:
 - Majority opinion in cases: - It is anexisting right and is triggered at the time of filing the suit and
NOT at the time of filing an appeal.
- Right to appeal is not merely a procedure but a substantive right.
- statutes are not to be held to act retrospectively unless a clear intention to that effect is
manifested.

MENS REA IS GENERALLY REQUIRED FOR A CRIMINAL ACT

Elements of mens rea introduced in criminal law because no fault liability should be
distinguished and not punished. 

 Cases:
a. Srinivas Mall Bairoliya v. Emperor  (Defence of India, Act)
Facts:This guy at Bairoliya’s shop was selling over the counter more than the MRP that
was stipulated under the Defence of India, Act.

Contention: Will the employer be held vicariously liable for the fault of employee?
Employer arg: I did not have the mens rea, some employee was doing this. 

Principle:Privy Council held:

“the court should always bear in mind that, unless the 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 the criminal law unless he has got a
guilty mind.”

IMP POINTS:
- Instances which lead to conviction w/o mens rea - minor cases. For major cases, you
should and ought to have the mens rea. W/o mens rea, one cannot be prosecuted. 
- Mens rea is always required unless the statute or necessary implication that it is not
required. 
Master will not be held liable for the acts of the servant.

b. Sarjoo Prasad v. State of U.P

Fact: Adulteration food is being made and sold. Sarjuprasad is the employee, he only takes it off
the shelf and sells it off. Employer is the person who is responsible for making the product and
checking the quality. This whole incident took place before the coming of Consumers Protection
Act. Adulterated Food is a different category - because it is a public health risk.

Issue: Should the employee be held liable for his employer under the Prevention of Food
Adulteration act, 1954?
 Decision: Owner (Employer) is punished w/o mens rea because strict liability. You had inferior
goods @ your shop. You directly go to the jail. Similarly, why should the employee not be held
liable?
“If the owner of a shop in which adulterated food is sold is without proof of mens rea liable to be
punished for sale of adulterated food, we fail to appreciate why an agent or a servant of the
owner is not liable to be punished for con- travention of the same provision unless he is shown to
have guilty knowledge.” 

Author of the Book disagrees with the decision: To ensure that he takes proper care, he is
punished even w/o the proof of mens rea. But the employee does not store the food in the shop,
only gives it to the customer. Therefore, he would come under the category of a person who is
morally innocent of the blame.

c. Ranjitudeshi v. State of MH
Facts: A guy sells Lady Chatterley's Lover which contains obscene images. How can one
expect to know of every book that he keeps in his store? Who is to judge what is obscene and
what is not? 

SC: principle is if it is expressly excluded it is excluded. 

 S.292 IPC → starts with “whether knowingly or unknowingly”does not make
knowledge of obscenity an ingredient of the offence.
 The prosecution need not prove something which the law does not burden it with.
 It is argued that the number of books these days is so large and their contents so varied
that the question whether there is mens rea or not must be based on definite knowledge of
the existence of obscen- ity.
 the difficulty of obtaining legal evidence of the offender's knowledge of the obscen- ity of
the book, etc. has made the liability strict.

GOVERNMENT IF AFFECTED BY A STATUTE

 Crown is not bound by statutes unless states therein.

 However, in India, the rule may be stated as the Government is also bound by a statute unless
excluded expresslyor by necessary implication. [opposite of the Crown]

Cases:

a. Province of Bombay v. Municipal Corporation of Bombay

(This was the position in V.S: Rice & Oil Mills v. State of A.P(c ))
 Whether the Crown is bound by Sections 222(1) &City of Bombay Municipal Act?
Held:

 The Crown may be bound, as has often been said, 'by necessary implication'. If that is to say, it is

manifest from the very terms of the statute, that it was the intention of the legislature that the
Crown should be bound, then the result is the same as if the Crown had been expressly, named.
 Every statute must be supposed to be 'for the public good, at least in intention, and even when, as

in the present case, it is apparent that one objects of the legislature is to promote the welfare and
convenience of a large body of the King's subjects by giving extensive powers to a local
authority, it cannot be said, consistently with the decided cases, that the Crown is necessarily
bound by the enactment.
 The apparent purpose of the statute is one element, and may be an important element, to be

considered when an intention to bind the Crown is alleged . If it can be affirmed that, at the time
when the statute was passed and received the royal sanction, it was apparent from its terms that
its beneficent purpose must be wholly frustrated unless the Crown were bound, then it may be
inferred that the Crown has agreed to be bound. Their Lordships will add when the court is asked
to draw this inference, it must always be remembered that, if it be the intention of the legislature
that the Crown shall be bound, nothing is easier than to say so in plain words.

b.  State of Bihar v. SonabatiKumari 

Can the State is liable to be proceeded against under Order 39 Rule 2(3) CPC?

Held: State is bound by the CPC, the scheme of the Code being that subject to any special
provision made in that regard, as respects Governments, it occupies the same position as any
other party to a proceeding before the court.

c. V.S: Rice & Oil Mills v. State of A.P

Govt supplied electricity at certain rate to citizen under Madras Essential Articles Control
and Requistioning (Temporary Power) Act, 1949.

Issue: It was contended that the scheme of the Act was that the power to regulate the supply
of an essential article which had been conferred on the State, was to be applied in regard to
transactions between citizen:, and citizens and could not be applied to an essential article
which the State itself supplied

Held:
  If, after reading all the relevant provisions of the statute, the court is satisfied that by necessary
implication the obligation imposed by the statute should be enforced against the State, that
conclusion must be adopted.
 If there are express terms to that effect, there is, of course, no difficulty in dealing with this vexed
question.
 Where, however, the question is not so much as to whether the State is bound by the statute but
whether it can claim the benefit of the provision of a statute, the same rule of construction may
have to be applied. Where the statute may be for thepublic good, and by claiming the benefit
conferred on it by its provisions the State may allege that it is serving the public good, it would
still be necessary to ascertain whether the intention of the legislature was to make the relevant
pro- visions applicable to the State.

d. Supdt. &Remembrancer of Legal Affairs v. Corpn. of Calcutta

Facts: State was carrying on trade without obtaining a license as required by Section 218 of
the Calcutta Municipal Act, 1951

Issue: whether the State was exempt from and not bound by the section?

Principle:

 The English rule of construction is - Crown is not bound by statutes unless stated therein.
 This rule of construction was applied only in Madras and Calcutta and not in all parts of India. Infact,
the English rule of construction brought opposite results in Calcutta and Madras.
 It is, therefore, clear that the said rule of construction was not accepted as a rule of construction
throughout India and even in the Presidency.
 It has been held by this Court that 'laws in force' in Article 372 includes not only enactments of the
Indian legislatures but also the common law of the land which was being administered by the courts
in India. But it is not possible to hold that a mere rule of construc- tion adopted by English courts, and
also by some of the Indian courts, to ascertain the intention of the legislature was a law in force
within the meaning of this term. This is an essential distinction between a law and a canon of
construction, and a canon of construction is not a rule of law.
 We are not concerned here with the statutory rules of interpretation. Therefore, the rule of
construction is not a 'law in force' within the meaning of Article 372 .

 Next question was: whether this Court should adopt the rule of construction accepted by the Privy
Council in interpreting statutes vis-à-vis the Crown Decided: NO!
Held: the said rule of construction is inconsistent with the rule of law based on the doctrine
of equality. There is, no justification for this Court to accept the English canon of
construction, forit brings about diverse results and conflicting decisions. On the other
 hand,the normal construction, namely, that the general Act applies to citizens as well as to
State unless it expressly or by necessary implication exempts the State from its operation,
steers clear of all the said anomalies.

THE JURISDICTION OF COURTS IS NEITHER ENLARGED NOR DECREASED.

a. Mary Board. V. William Board

The Legislature of Alberta in 1907 passed a Supreme Court Act establishing a Supreme Court of
Alberta as a Supreme Court of civil and criminal jurisdiction in and for that Province. Section 9
of the Act confers on the Supreme Court all the capacity given by Divorce Acts to judges of
other courts in England to act as the court established by those Acts.

Issue: whether the court had jurisdiction in matrimonial causes, including divorce?

Held:

 The right to divorce had been introduced into the substantive law of the province, before the
setting up of a Supreme and Superior Court of Record in Alberta. This means, there is a special
law in place, that is the Province (one) that enforces these rights.
 In absence of any explicit and valid legislative declaration, the court was bound to entertain and
to give effect to proceedings for making that right operative. If the right exists, the presumption is
that there is a court which can enforce it.
 However, if no other mode of enforcing it is prescribed, that alone is sufficient to give
jurisdiction to the King’s Court of Justice.
 In order to oust jurisdiction it is necessary, in the absence of a special law excluding it altogether,
to plead that jurisdiction exists in some other court.
 When you have to take away or create jurisdiction, you need to have a special law.

b. Ujjam Bai v. state of UP

An order of assessment made by an authority under a taxing statute which was intra vires and
in the undoubted exercise of its jurisdiction could not be challenged on the ground that it was
passed on a misconstruction of a provision of the Act or of a notification issued thereunder.

 Jurisdiction means authority to decide.

 Where a quasi-judicial authority has jurisdiction to decide a matter, it does not lose its
jurisdiction by coming to a wrong conclusion, whether it is wrong in law or in fact. The
 question whether a tribunal has jurisdiction depends not on the truth or falsehood of the
facts, but upon their nature (of the legal question), and it is determinable 'at the
commencement, not at the conclusion, of the enquiry'. 
 An error of law or fact committed by a judicial or quasi-judicial body, cannot in general, be
impeached otherwise that on appeal unless the erroneous determination relates to a matter which
the jurisdiction of that body depends. These principles govern not only the findings of inferior
courts strictosensu but also the findings of administrative bodies which are held to be acting in a
judicial capacity. Such bodies are deemed to have been invested with power to err within the
limits of their jurisdiction; and provided that they ket:1, -) within those limits, their decisions must
be accepted as valid unless set aside on appeal.

c. Dhulabhai v. State of M.P. (*IMP) [module p. 112]

Assessment under Madhya Bharat sales tax Act were Ultra vires herefore, for art order a refund
of the tax collected. Section 17 of the Act provided that assessment made shall not be called in
no question in any court.

SC laid down 7 points holding that the suit was not barred:

(I have shortened some points, to read full thing – refer p. 112 of the module)

I. If under a Statute, a special tribunal that is created of special purpose, and have ousted the
jurisdiction of civil court, then tribunal is the final. Tribunal has replaced the civil
court. Except if the provisions of that Statute , does not exclude those cases where the
provisions of the particular Act have not been complied with or the statutory tribunal has not
acted in conformity with the fundamental principle of judicial procedure.

II. When express bar on civil court jurisdiction. Need to go through the powers of the Tribunal
(special one) and see if the tribunal has the same power of the court (ex. Civil court) whose
jurisdiction the tribunal has ousted. 

III. Challenge to the provision of the alleged act could be challenged in the higher court.  Not
before high court, not before the special tribunal.

IV. When there is a challenge of unconstitutionality of certain provision, the suit deemed open.

V. Where the particular Act contains no machinery for refund of tax collected in excess of
constitutional limits or illegally collected, a suit lies.

VI. Questions of the correctness of the assessment apart from its constitutionality are for the
decision of the authorities a civil suit does not lie if the orders of the authorities are declared
to be final or there is an express prohibition in the particular Act. In either case the scheme of
the particular Act must be examined because it is a relevant enquiry.
 VII. An exclusion of the jurisdiction of the civil court be inferred unless the conditions above set
down apply.

STATUTES ARE NOT INTENDED TO BE INCONSISTENT WITH INTERNATIONAL

LAW

 Every statute is to be so interpreted as not to be inconsistent with well-established rules of

international law, except when a contrary intention is expressed clearly
 But if there is inconsistency, the municipal law prevails.
 Ex. neither comity nor any rule of international law can be invoked to prevent a sovereign State
from protecting its revenue laws from abuse by foreigner
Cases:

a. KesavanandaBharati v. State of Kerala.

interpret ,1 statute so as not to make it
It is only in cases of doubt or ambiguity that the courts would
inconsistent with the comity of nations or established ules of international law; but if the language of
the statute is clear. it must be followed notwithstanding the conflict between the municipal law and
international law may result.

b. ADM, Jabalpur v. Shivakant Shukla

whether a habeas corpus petition would lie during an Emergency?

Dissent- Khanna J.: -

 If two constructions of the municipal law are possible, courts should lean in favour of adopting
such construction as would make the provision of the municipal law to be in harmony with the
international law or treaty obligations.
 Every statute, according to this rule, is interpreted so far as its language permits so as not to be
inconsistent with the comity of nations or the established rules of international law and the court
would avoid a construction which would give rise to such inconsistency unless compelled to
adopt it by plain and unambiguous language.
 But if the language of the statute is clear it must be followed notwithstanding the conflict between
municipal and international laws which results.
 A rule of municipal law which ostensibly seems to conflict with the law of nations must,
therefore, if possible, always be so interpreted as to avoid such conflict. This rule about the
construction of municipal law holds good when construing the provisions of the Constitution.
 The rules of international law are not to be considered as part of English law if they conflict with
 an Act of Parliament.
c. BhitnSinghji v. Union of India 
Krishna Iyer J.
'Reading down meanings of words with loose lexical amplitude permissible as part of the judicial
process. To sustain a law by interpretation is the rule. To be trigger happy in shooting at sight
every suspect law is judicial legicide, Courts can and must interpret words and read their
meanings so that public good is promoted and power misuse 1,- interdicted.'

 APPLICATION OF INTERNATIONAL LAW IN NATIONAL COURTS – 2 SCHOOLS OF

THOUGHT.

A. INCORPORATION
In Jolly George Varghese v. Bank of Cochin

Krishna Iyer, J. held that the Indian Constitution hasadopted the Transformation theory. That
is, international law has to undergo transformation by means of law enacted by Parliament so
that it can form part of the law of the land.

B. TRANSFORMATION
In People’s Union Liberties v. UOI Kuldip

Singh, J. observed that nation laws have to construed in conformity with the customary
principle of international law.

TERRITORIAL NEXUS 

 The power of a country allows it to legislate for its own subjects all over the world, and for foreigners
within its jurisdiction, but no further.
 Power to make laws would not include a power to make such laws as might be broken by anyone
with impunity.
 a sovereign legislature may pass a law having extra-territorial operation and though it cannot be
directly enforced, it would be invalid and the courts must enforce it with the available machinery.
 legislation of a State is primarily territorial and the general ruleextra territorium jus dicentiimpune
non paretur. One who exercises jurisdiction out of his territory is not obeyed with impunity

Cases:
a. Bengal Immunity Co. Ltd. v. State of Bihar
Where there was sufficient territorial nexus between the person sought to be proceeded
against under a law, and the State which enacted the law, the law is not strictly speaking
extra-territorial and is not ultra vires on the ground that such person is not residing within the
 enacting State.

b. S.K. Sahgal v. Maharaj Kishore Khanna 

The decree under the U.P Encumbered Estates Act, 1934, of the Special Judge was
transferred to a court outside U.P for execution.

Held: Merely because a court outside U.P. is applying a statute of'U.P. would not amount to
giving extra-territorial operation to the statute when the statute was being applied to one of
its legitimate objects.

c. State of Bihar v. CharusilaDasi

 The doctrine of territorial connection or nexus is applicable to income tax legislation, sales
tax legislation and also legislation imposing a tax on gambling.
 Sufficiency of the territorial connection involve, consideration of two elements:
(i) connection must be realnot illusory
(ii) liability sought to be imposed must be pertinent to the connection.

d. Anant Prasad v. State of A.P. 

A public trust was in registered in Andhra Pradesh but some its endowed prop were in MP. It
was necessary for the purpose of management of the Prop in MP that the trust had to be
registered in MP.

Held:

The registration of the trust in Madhya Pradesh cannot be a bar against the enforcement of the
Hyderabad Endowments Rgulations 1940, The registration would not exclude the jurisdiction of
the AP State to legislate with respect to the trust which was undoubtedly situated in AP.

LEGISLATURE KNOWS THE EXISTING LAW AND DOES NOT INTEND TO ALTER
IT EXCEPT BY EXPRESS ENACTMENT

The law presumes that the Act did not intend to make any alteration; for if Parliament had that
design, they would, have expressed it in the Act.

Further, the legislature must not be taken to intend any alteration in the law beyond what it
explicitly declares in express terms or by unmistakable implication.
Cases:

a. VasudevRamchandraShelat v. PranlalJayanandThakar
Facts: There was a gift of shares by a registered deed in favour of the appellant, hot the
formalities prescribed by the Companies Act, 1913, were not com- plied with. The High Court
held that the gift was incomplete and failed.

It is true that the relevant Provision- of the Transfer of Property Act and the Companies Act must
have interpreted harmoniously. But, this certainly does not mean that a provision of one Act
could be nullified by any provision of the other Act. It means that the provisions of the two Acts
should be read consistently with each other so far as it t- reasonably possible to do so. This could

be best achieved here by examining the by examining the objects and the subject-matter of each
enactment and by viewing each relevant provision as a limb of an limb of an integrated whole
meant to serve their underlying purposes. In this way, their separable sphere of operation will be
clarified so as to avoid possibilities of conflict between them or any unnecessary overflow of
what really appertains to one field into another.

b. Middleton v. Texas & Light Co.

There is a strong presumption that a legislature under- stands and correctly appreciates the needs
of its own people, that its laws are directed to problems made manifest by experience and that its
discriminations are based upon adequate grounds

c. Sakal Deep Sahai v. Union of India'

The question appears to us to be no longer open for consideration afresh by us, or, at any rate, it
is not advisable to review the authorities of this court, after such a lapse of time when, despite the
view taken by this Court that Article 102 of the Limitation Act of 1908 was applicable to such
cases, the Limitation Act of 1963 had been passed repeating the law, contained in Articles 102
and 120 of the Limitation Act of 1908 in identical terms without any modification.

Principle:

The legislature must be presumed to be cognizant of the view of the court that a claim of the
nature before us, for arrears of salary falls within the purview of Article 102 of the Limitation
Act of 1908. If Parliament, which is deemed to be aware of the declarations by the law by the
 court, did not alter the law, it must be deemed to have accepted the interpretation of this court
even though the correctness of it may be open to doubt. If doubts had arisen, it was for the
legislature to clear these doubts. When a provision of the statute is interpreted by the
Supreme Court and the statute is re-enacted with the identical provisions then the
presumption is that the legislature accepted the interpretation put upon the provisions by the
Supreme Court.

d. State of Gujarat v. ZinabhaiRanchhodjiDarjil

In the matter of interpretation of enactments which are in force in a particular State this Court
generally attaches a good deal of value to the views of the High Court of that State, particularly
when they have been fully considered by it, because, that court is expected to be sufficiently
conversant with the provisions or the various local enactments.

THE LEGISLATURE DOES NOT COMMIT MISTAKES OR MAKE OMISSIONS

 Words may be modified or varied when their import is doubtful or obscure

 If, however, the expression does not include the complete thought of the legislature, or if the words
are equally susceptible of several meanings, we are to seek in other part of the same statute, or in
other statutes, certainly in those inparimateriawith this or that one of the several possible meanings
whichto be put upon the words.
 In interpreting a statute, to meet the obvious intention of the legislature, a construction may be put
upon it which modifies the meaning of the words and even the structure of the sentences, but that is
allowed only where the court is coerced to do so to avoid some serious injustice or to prevent a statute
from being reduced to nullity, or for any other similar reason.
 Clerical or printing errors can be corrected by the court so also an accidental omission in a Schedule.
 As a rule, it is not permissible to the court to supply omissions in a statute. But if the words of a
statute are so obscure or ambiguous that it is impossible to put a grammatical construction on them,
while the intention is clear, it is permissible, in order to give effect to the statute and to avoid the
manifest absurdity or injustice, to supply omitted words or expressions
 Obvious omissions can be made up by suitable interpretation, but the court cannot otherwise supply
supposed deficiencies, for then the court, instead of declaring the law, would be making laws.

a. Mohd. Bahadoor Khan v. Collector of Bareilly

It impossible that any court can add to the statute that which the legislature has not done.
This limitation is enacted in plain and absolute term. The legislature has not thought fit to
extend the period which it has pre- scribed to persons under disability. When such
enlargements have been intended, they are found in the Acts containing the limitation. This
Act contains no such saving and introducing would mean that court is legislating and not
interpreting the statute.

b. Indian Immigration Trust Board of Natal v. Govindasamy

Under Section 118 immigrant" mean and include all Indians introduced from India intoNatal
 and those descendants of Indians resident in Natal.

Contention: whether the word "immigrant" in the expression "every male statute adult
immigrant" included the descendants of immigrants?

Held: When the interpretation clause in a statute says that such and such all expression shall
include so and so, a court in construing a statute is bound to the give effect to the direction
unless it can be shown that the context of the particular passage where the expression is used
shows clearly that the meaning is not in this place to be given effect to, or unless there can be
alleged some general reasons of weight why the the interpretation clause is to be denied its
application.

It was also held that the argument that it was unlikely that the legislature would wish to
provide for medical attendance when the number of such descendants was large and their
social position did not require it, should be addressed to the legislature; because change of
circumstances cannot have weight in the interpretation by a court.

c. BhimSinghji v. Union of India

 Section 23 of the Urban Land (Ceiling and Regulation) Act, 1976. It mentions the words “to any
person for any purpose.”& meaning of industry - "industry" means any business, profession,
trade, undertaking or manufacture.
 The dissenting judge, Mr Justice Tulzarpurkar held that the act was ultra vires because s.23 used
the phrase “to any person for any purpose.”
 This limitation on the wide words of Section 23(1) is a matter of semantics and reading down
meanings of words with loose lexical amplitude is permissible as part of the judicial process. The
wide definition-of "industry" or the use of general words like "any person" and "any purpose"
cannot free the whole clause from the inarticulate major premise that only a public purpose to
sub-serve the common good and filling the bill of Article 39(b) and (c) will be permissible. Even
a private industry may be for a national need and may serve common good. The touchstone is
public purpose, community good and like criteria. If the particular act of allotment is mala fide or
beyond the statutory and consituational parameters such exercise will be a casualty in court and
will be struck down. The power of judicial review to strike at excess or mala fide is always there.
 Applying “public purpose” to interpret “any purpose” is not permissible.
 The doctrine of reading down does not apply when the provision explicitly clear and
unambiguous and there is no room for more than one construction.

d. PeddintiVenkataMuraliRanganatha v. Govt. of A.P

'A legislation proceeding upon an erroneous assumption of the existing law without directly
amending or declaring the law is ineffective to change the law.' A mere erroneous assumption
exhibited in a statute as to the state of the existing law is ineffective to express an 'intention to
change the law; if, by such a statute, the idea is to change the law, it will be said that 'the
legislature has plainly misfired'. The 'legislation founded on a mistaken or erroneous assumption
has not the effect of making the law which the legislature had erroneously assumed to beso'. The
court will disregard such a belief or assumption and also the provision inserted in that belief or
assumption.

e. BanwariDass
The Golden Rule permits addition of words to remove an absurdity or injustice; but the casus
omissusrule does not allow any such addition even in the case of injustice or absurdity, because
as recrimination is not allowed the petitioner who may be guilty of corrupt practices may be
declared elected if therespondents election is set aside. According to me nothing should be added
except in the case of typographical errors. If the provision interpreted according to Mischief Rule
appears absurd the court may point out the absurdity and leave it to the legislature to correct it.
There is no absurdity the court should give their words their natural meaning that is, give the
words a meaning which fits the context and removes the mischief i.e. follow the rule in Heydon
case.

TAUTOLOGY

(a) A statute ought to be so construed that if it can be prevented no clause, sentence or word is
rendered be superfluous, void or insignificant.

(b) To reject words as un-meaningful is permissible only when an absurdity would follow by
retaining the words and giving effect to them.

Cases:

a. Ghanshyamdas v. CSP
The appellant, a registered dealer, furnished for the year 1949-50, a return of his turnover for the
first quarter but failed to do so for the other 3 quarters. In 1954 notice was issued to him to
furnish the returns.

App contention: It was a case of "escaped turnover" under Section 11.-A and as the assessment
was not made. Within three years as required by the section, the assessment of his turnover was
barred by limitation.

Resp contention: In case of a registered dealer, there was a statutory obligation to make a return
and, therefore, the proceedings of assessment had to be deemed to be pending from the date an
assessee was bound to make his return and since the proceedings had to be deemed to be pending
there was no scope for invoicing Section 11-A of the Act.
Decision:

Court went with Respondent’s contention.

 Under Section 10(1) the Commissioner need not issue a notice to a registered dealer for
furnishing the relevant returns but a statutory obligation is imposed on such a dealer to do so by
such dates and to such authority as may be prescribed.
 The sub-section (2) is in two parts, the first part speaks of a dealer who may be required by the
Commissioner by notice to furnish returns; and the second part of a registered dealer who shall
furnish the returns by such prescribed dates and the sub- section says that both of them shall
furnish the returns.
 If the 'dealer' in the first part includes a registered dealer, the mention of 'every registered dealer'
in the second part will become redundant for a registered dealer is included in the expression
'dealer'.
 A construction which would attribute redundancy to a legislature shall not be accepted except for
compel- ling reasons. This redundancy disappears if the expression 'dealer' in the first part
excludes a registered dealer mentioned in the second part.

b. Jugal Kishore Prasad v. State of Bihar

The appellant, who was less than twenty-one years of age, was convicted for the offence under
Section 326 read with Section 149, an offence punishable with imprisonment for life, and was
sentenced to three years. On the question whether he could claim the benefit of the Probation of
Offenders act, 1958.

Decision:

A plain reading of Section 6 of the Act makes it manifest that it deals with persons under twenty-
one years of age who are found guilty of having committed an offence punishable with
imprisonment, but not with imprisonment for life. As imprisonment for life can also be
awarded for the offence under Section 326 read with Section 149, a person that is found guilty of
such an offence would not be entitled to claim the benefit of s.6. To hold otherwise would have
the effect of ignoring the words “but not with imprisonment for life”' and treating them to be
otiose. Such a construction is plainly not permissible.

c. Dinesh Chandra Sangma v. State of Assam

The Appellent, a member of the Judicial Service, after attaining the age of 5o years served notice
on the Government under F.R. (Fundamental Rule) 56(c) that he proposed to voluntarily retire
from service with effect from 2nd Aug, 1976. The Government accorded permission and the High
Court agreed with the Government. But on 28 July 1976 the Govt. countermanded its earlier
permission and the HC also gave him a posting; and, thereafter, threatened him with disciplinary
action in case he did not join his post.

The appellant unsuccessfully challenged the administrative order of the High Court on the
judicial side. On appeal to the Supreme Court the Respondent-State sought to support the order
of the High Court on the basis that Rule 119 of theDefence and Internal Security of India Rules,
1971 is superimposed on F.R. 56(c) and, therefore, it was impermissible in law for a Government
servant to voluntarily retire without written permission from the Government.

Court held:

It is a cardinal rule of construction that no words should be considered redundant or surplus in

interpreting the provisions of a statute or a rule. Explanation 2 does not say an express or implied
term of employment, but refers to 'an express or implied term of his contract of employment'.
If the language in Explanation 2 were different, namely, an express or implied term of
employment, instead of 'contract of employment', the position would have been different.
Explanation 2 in Rule 119, albeit, a penal rule takes care to use the words 'contract of
employment' and necessarily excludes the two categories of employment, namely, the one under
the Central Government and the other under the State Government. Explanation 2 only takes in
its sweep the third category of employment where the relationship between the employer and the
employee is one governed by a contract of employment. Since F.R. 56 is a statutory condition of
service, which operates in law, without reference to a contract of employment, there is nothing
inconsistent between Rule 119 and F.R. 56.

--- INTERNAL AIDS TO CONSTRUCTION ----

LONG TITLE

It is now settled that Long Title of an Act is a part of the Act and is admissible as an aid to its
construction18

Referring to the Trade Disputes Act, 1906 (6 Edw. 7, c. 47), LORD MOULTON said: "The title
of an Act is undoubtedly part of the Act itself, and it is legitimate to use it for the purpose of
interpreting the Act as a whole, and ascertaining its scope. This is not the case with the short
title, which in this case is 'the Trade Disputes Act, 1906', This is a title given to the Act solely for
the purpose of facility of reference. If I may use the phrase, it is a statutory nickname to obviate
the necessity of always referring to the Act under its full and descriptive title. The full title of the

18
R. v. Secretary of State for Foreign and Commonwealth 'Affairs,: 1994 QB 552
Act is; 'An Act to provide for the regulation of Trade Unions and Trade Disputes'. The title as it
stands is not only intelligible, but describes admirably the purposes of the Act.19

CASES -

The title of the Madras General Sales Tax Act. 1939, was utilised to indicate that the object of
the Act is to impose taxes on sales that take place within the province.20

PREAMBLE

The preamble of a statute like the long title is a part of the Act and is an admissible aid to
construction. Although not an enacting part, the pream- • ble is expected to express the scope,
object and purpose of the Act more comprehensively than the long title. It may recite the ground
and cause of making the statute, the evils sought to be remedied13 or the doubts which may be
intended to be settled.

LORD SOMERVELL stated the principle thus: "Preambles differ in their scope and,
consequently, in the weight, if any, which they may have on one side or the other of a dispute.
There can be no rule. If, in an Act the Preamble is a general or brief statement of the main
purpose, it may well be of little, if any, value. The Act may, as has been said, go on beyond, or,
in some respects fall short of, the purpose so briefly stated. Most Acts contain exceptions to their
main purpose, on the meaning of which such a preamble would presumably, throw no light. On
the other hand, some general and most local Acts have their limits set out in some detail. I will
not hazard an example but there may well be cases in which a section, read with the preamble,
may have a meaning different from that which it would have if there were no preamble. Court
will, of course, bear in mind that a preamble is not an enacting provision, but I think it must have
such weight as it can support in all contests as to construction21

LORD MORTON on the same point laid down that if the preamble is ambiguous it cannot in any
way control the enacting part. He proceeded to observe: "In fact, if the preamble were clear one
way and the enacting part were equally clear the other way, there can be no doubt that the
latter must prevail"

section 23(1) of the Urban Land (Ceiling and Regulation) Act, 1976 which permits the allotment
of any land vesting in the Government to any person for any purpose relating to, or in connection
with any industry or for providing residential accommodation of such type as may be approved
by the State Government to the employees of any industry was given a restrictive construction
having regard to the Act's preamble and section 23(4). The preamble shows that the Act was
passed with the object of preventing concentration of urban land in the hands of a few persons
and with a view to bringing about an equitable distribution of land in urban agglomerations to

19
Vacher & Sons v. London Society of Compositors, supra, p. 252.
20
Poppatlal Shah v. State of Madras, AIR 1953 SC 274
21
.4.G. v. HRH Prince Ernest Augustus of Hanover. (1957) 1 All ER 49, pp. 54. 55 . 1957 AC 436 (HL).
subserve the common good. Section 23(4) provides that subject to the provisions of section 23(1)
all vacant land shall be disposed of by the State Government to subserve the common good.
Although section 23(4) was 'subject to' section 23(1), yet it was held that disposal of land under
section 23(1) can only be for the common good and not otherwise. A contrary construction
would have made section 23(1) unconstitutional as was held by the minority. The majority,
however, gave it a restricted interpretation observing: "The Preamble to the Act ought to resolve
interpretational doubts arising out of the defective drafting of section 23.22

Similarly, it seems the repeal of a preamble simpliciter will not affect the construction of the
Statute.23

CASES

Attorney-General v Prince Ernest Augustus of Hanover

Facts : The Sophia Naturalization Act 1705 provided that all the children and descendants of
Electress Sophia of Hanover, with the exception of Roman Catholics, shall be naturalized as
British subjects. The Act was repealed by the British Nationality Act 1948, with the proviso that
every person who was a British subject before the entry of force of the Act shall continue to be a
British subject.

Prince Ernest Augustus of Hanover, a linear descendant of the Electress Sophia, sought a
declaration that he was a British subject under the 1705 and 1948 Acts. The Attorney-General
opposed the application, arguing that Parliament had not intended to naturalize a large number of
remote descendants of the Electress Sophia when it passed the Sophia Naturalization Act 1705. It
was argued that the 1705 Act's preamble suggested that Parliament did not intend to naturalize
remote descendants of the Electress Sophia.

The decision establishes the following propositions: the preamble being a part of the statute can
be read along with other portions of the Act to find out the meaning of words in the enacting
provisions as also to decide whether they are clear or ambiguous the preamble in itself is not an
enacting provision and is not of the same weight as an aid to construction of a section of the Act
as are other relevant enacting words to be found elsewhere in the Act; the utility of preamble
diminishes on a conclusion as to clarity of enacting provisions.

. Gullipilli Sowria Raj v. Bandaru Pavani, (2009) 1 SCC 714 para 16

Use of the word 'may' in section 5 of the Hindu Marriage Act which provides: 'A marriage may
be solemnized between any two Hindus... ' has been construed to be mandatory in the sense that
both parties to the marriage must be Hindus as defined in section 2 of the Act. It was therefore
held that a marriage between a Christian male and a Hindu female solemnized under the Hindu

22
Maharao Sahab Shri Bhimsinghji v. Union of India, AIR 1981 SC 234, p 237
23
CRAIES : Statute Law, 7th Edn., p. 206
Marriage Act was void. This result was reached also having regard to the preamble of the Act
which reads: 'An Act to, amend and codify the law relating to marriage among Hindus.

Burrakur Coal Co. v. Union of India, AIR 1961 SC 954, p. 95

The Coal Bearing Areas (Acquisition and Development) Act, 1957 in section 4(1) provides:
'whenever it appes-to-theaffifiii GoVeitinie in that coal is likely to be obtained from land in any
locality, it may, by noti fic.ition in the Official Gazette, give notice of its intention to prospect for
coal therein'. On issue of such a notification in respect of any land any prospecting license or
mining lease granted to any person ceases to have effect and provision is made for acquisition of
land so notified as also for payment of compensation etc. The Act contains a preamble which
runs as follows: 'An Act to establish in the economic interest of India greater public control over
the coal mining industry and its development by providing for the acquisition by the State of
unworked land containing or likely to contain coal deposits or of right in or over such land, for
the extinguishment or modification of such rights accruing by virtue of any agreement, lease,
license or otherwise, and for matters connected therewith'. The argument before the Supreme
Court was that the Act applied only to virgin lands and not to those lands which are being
worked or were worked in the past. Support for this contention was taken from the words
'unworked land' in the preamble. Rejecting the contention on the ground that the language of the
enacting provisions was clear and therefore not controlled by the preamble, the Supreme Court
pointed out: "On the plain language of sub-section (1) of section 4, the Central Government has
been empowered to issue a notification with reference to its intention of prospecting any land in
a locality and not only such land as is virgin.

PREAMBLE OF THE CONSTITUTION

By section 2 of the Constitution (42nd Amendment) Act, 1976, two amendments were made in
the Preamble. First tor the words 'Sovereign Democratic Republic' the words 'Sovereign Socialist
Secular Democratic Republic' were substituted and, secondly, for the words 'Unity of India', the
words 'Unity and Integrity of the Nation' were substituted. These amendments were held to be
valid in Minerva Mills.51 The addition of the word 'Socialist' enabled the Courts to lean more in
favour of nationalisation52 and economic equality.53 It was also used for rejection of a
classification based on notions of feudalistic society e.g. Kinship.

HEADINGS

The view is now settled that the Headings or Titles prefixed to section or group of sections can
be referred to in construing an Act of the Legislature.24

24
Hammer Smith & City Ry. v. Brand, (1869) LR 4 HLC 171; Ingils v. Roberts., (1898) AC 616, pp. 624, 629 (HL);
Toronto Corporation v. Toronto Ry..19(17 315, p. 324 (PC); Martins v. Fowler. (1926) AC 746, p. 750 (PC);
Quakter Hall Co. Ltd. v. Board of Trade, (1961) 3 All ER 389, pp. 392, 394 (CA); Bhinka v. Clio• ran Singh. AIR
1959 SC 960, p. 966 : 1959 Supp (2) SCR 798; Director of Nisi:. Prosecutions v. Schildkamp, (1969) 3 All ER 1640
(HL).
Frick India Ltd. v. Union of India, AIR 1990 SC 689, p. 693

It is well settled that the headings prefixed to sections or entries (of a Tariff Schedule) cannot
control the plain words of the provision; they cannot also be referred to for the purpose of
construing the provision when the words used in the provision are clear and unambiguous; nor
can they he used for cutting down the plain meaning of the words in the provision. Only in the
case of ambiguity or doubt the heading or sub-heading may be referred to as an aid in construing
the provision but even in such a case it could not be used for cutting down the wide application
of the clear words used in provision.

Raichurrnatham Prabhakar Rawatmal Dugar, (2004) 4 SCC 766, p. 775

It is permissible to assign the heading or title of a section a limited role to play in the
construction of statutes. They may be taken as very broad and general indicators of the nature of
the subject-matter dealt with thereunder. The heading or title may also be taken as a condensed
name assigned to indicate collectively the characteristics of the subject matter dealt with by the
enactment underneath; though the name would always be brief having its own limitations. In
case of conflict between the plain language of the provision and the meaning of the heading or
title, the heading or title would not control the meaning which is clearly and plainly discernible
from the language of the provision there under.

Under section 180 of the Uttar Pradesh Tenancy Act, 1939 a remedy was provided for ejectment
of a person who was retaining possession of land 'otherwise than in accordance with the
provisions of the law for the time being in force'. The question before the Supreme Court was
whether a person having no title but retaining possession by virtue of an order passed under
section 145, Criminal Procedure Code could be ejected under the aforesaid provision. In
reaching the conclusion that such a person could be ejected the Supreme Court construed the
words 'possession in accordance with the law for the time being in force' as meaning possession
with title. Support for arriving at this conclusion was taken from the heading of the section which
read 'Ejectment of person occupying land without title'. SUBBARAO, J., quoted with approval
the following passage from MAx-WELL:71 "The heading prefixed to sections or sets of sections
in sonic modern statutes are regarded as preambles to those sections. They cannot control the
plain words of the statute but they may explain ambiguous words.

MARGINAL NOTES

Although opinion is not uniform the weight of authority is in favour of the view that the marginal
note appended to a section cannot be used for construing the section.25

25
Chandler v. Director of Public Prosecutions, (1962) 3 All ER 142, pp. 145, 14
PATANJALI SHASTRI, J., after referring to the above case with approval observed: "Marginal
notes in an Indian statute, as in an Act of Parliament cannot be referred to for the purpose of
construing the statute:' At any rate, there can be no justification for restricting the section by the
Ina' ginal note,6° and the marginal note cannot certainly control the meaning of the body of the
section if the language employed therein is clear.26

Some recent Indian cases also show that reference to marginal notes may be permissible in
exceptional cases for construing a section in a statute. The marginal note although may not be
relevant for rendition of decisions in all types of cases but where the main provision is sought
to be interpreted differently, reference to marginal note would be permissible in law.

A note appended to a statutory provision or subordinate legislation is merely explanatory in

nature and does not dilute the rigour of the main provision.27

PUNCTUATION

When a statute is carefully punctuated and there is doubt about its meaning, a weight should
undoubtedly be given to punctuation—. I need not deny that punctuation may have its uses in
some cases, but it cannot certainly be regarded as the controlling element and cannot be allowed
to control the plain meaning of a text.28

In Gopalan's case, KANIA, C.J.I.. in construing Art. 22(7) of the Constitution, referred to the
punctuation and derived assistance from it in reaching his conclusion that Parliament was not
obliged to prescribe both the circumstances under which, and the class or classes of cases, in
which a person may he detained for a period longer than three months, without obtaining the
opinion of Advisory Board and that Parliament on a true construction of the clause could
prescribe either or both.29 The use of the word 'which' twice, read with the comma put after have
the effect of controlling the real content of the section and must give way in case of repugnance
with the text of the section.

But it would appear, at any rate, with respect to modern statutes, that if the statute in question is
found to be carefully punctuated, punctuation, though a minor element, may be resorted to for
purposes of construction

Cases :

Mohd. Shabbir v. State of Maharashtra

An illustration of the aid derived from punctuation may be furnished from the case of Mohd.
Shabbir v. State of Maharashtra, where section 27 of the Drugs and Cosmetics Act, 1940 came
26
Nalinakhya Bysack Shyam Sundar Haddar, AIR 1953 SC 148, p. 10
27
V.B. Prasad v. Manager P.M.D.U.P. School, AIR 2007 SC2053 (para II)
28
Aswini Kumar Ghose v. Arabinda Bose.
29
A. K. Gopalan v. State of Madras, AIR 1950 SC 27, p. 45
up for construction. By this section whoever 'manufactures for sale, sells, stocks or exhibits for
sale or distributes' a drug without a licence, is liable for punishment. In holding that mere
stocking is not an offence within the section, the Supreme Court pointed out the presence of
comma after 'manufactures for sale' and 'sells' and absence of any comma after 'stocks'. It was,
therefore, held that only stocking for sale could amount to offence and not mere stocking.30

M.K. Salpekar (Dr.) v. Sunil Kumar Shamsunder Chaudhari, AIR 1988 SC 1841

the court construed clause 13(3)(v) of the C.P. and Berar Letting of Houses and Rent Control
Order. This provision permits ejectment of a tenant on the ground that "the tenant has secured
alternative accommodation, or has left the area for a continuous period of four months and does
not reasonably need the house". In holding that the requirement that the tenant 'does not
reasonably need the house' has no application when he 'has secured alternative accommodation'
the court referred and relied upon the punctuation comma after the words alternative
accommodation. However, if a statute is revised and re-enacted but the section under
construction in the revised statute is brought in identical terms as in the old statute except as to
variation of some punctuation, that in itself will not be indicative of any intention on the part of
the Legislature to change the law as understood under the old section.

ILLUSTRATIONS

Illustrations appended to a section form part of the statute and although forming no part of the
section, are of relevance and value in the construction of the text of the section and they should
not be readily rejected as repugnant to the section. But Illustrations cannot have the effect of
modifying the language of the section and they cannot either curtail or expand the ambit of the
section which alone forms the enactment.

It is the duty of a court of law to accept, if that can be done, the Illustrations given as being both
of relevance and value in the construction of the text. The Illustrations should in no case he
rejected because they do not square with ideas possibly derived from another system of
jurisprudence as to the law with which they or the sections deal And it would require a very
special case to warrant their rejection on the ground of their assumed repugnancy to the section
themselves. It would be the very last resort of construction to make this assumption. The great
usefulness of the Illustrations which have, although not part of the sections, been expressly
furnished by the Legislature as helpful in the working and application of the statute, should not
be thus impaired.

Attention must also be made of Illustration (b) to section 114, Indian Evidence Act, which reads:
"The court may presume that an accomplice is unworthy of credit unless he is corroborated in
material particulars". The impact of this Illustration on the construction of section 133 of the
Evidence Act—"An accomplice shall be a competent witness against an accused person; and a
conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an
30
AIR 1979 SC 564, p. 565
accomplice"—is too well-known. The rule evolved on the basis of the Illustration is that "it is
almost always unsafe", to convict an accused on the uncorroborated testimony of an accomplice,
and that the corroboration required to sustain a conviction must be independent and must relate
to the participation of the accused in the offence. The Supreme Court has never felt any difficulty
in setting aside a conviction based on uncorroborated or insufficiently corroborated testimony of
an accomplice. Thus the rule of law enacted in the later part of section 133 has, from practical
point of view, been reduced to a dead letter on the basis of a rule of practice developed under a
mere Illustration and that too appended to a different section. Such a result, which is exceptional
from the point of view of principles of construction, is the outcome of the anxiety of courts to
safeguard the liberty of the subject and to make sure that a conviction is not obtained merely on
tainted evidence.

DEFINITIONS

A definitions section may borrow definitions from an earlier Act and the definitions so borrowed
may not necessarily be in the definitions section but may be in some other provision of the
earlier Act. 31. A definition borrowed by incorporation or reference may be sometimes found in
the rules made under the referred statute. For example, Article 366(1) of the Constitution defines
"agricultural income" to mean "agricultural income as defined for the purpose of enactments
relating to Indian Income-tax". In construing this definition the Supreme Court has consistently
taken the view that its meaning has to be considered not merely by looking to the Income-tax
Act, 1922 or the Income-tax Act, 1961 but also with reference to the Rules made under these
Acts for computation of income when the same is derived in part from agriculture and in part
from business and so only 60% of the income on sale of tea grown and manufactured by an
assessee as provided in the Rules can be held to be agricultural income which the States can tax..
But in the absence of incorporation or reference it is hazardous to interpret a word in accordance
with its definition in another statute. and more so when such statute is not dealing with any
cognate subject 34. or the statutes are not in pari materia. On this principle the meaning given to
the word "industry" in the Industrial Disputes Act was not used for construing that word in an
exemption notification under section 25 of the Customs Act, 1962. and the definition of
"currency note" in the Indian Paper Currency Act, 1822 was not applied for interpreting that
expression in section 489A of the Penal Code.

The Supreme Court held that the definition clause mentions only five categories of relationships,
and is exhaustive since the expression "means" has been used. 41. Whereas, where the word
defined is declared to "include" such and such, the definition is prima facie extensive. 42. When
by an amending Act, the word "includes" was substituted for the word "means" in a definitions
section, it was held that the intention was to make it more extensive. 43. Further, a definition
may be in the form of "means and includes", where again the definition is exhaustive; 44. on the
other hand, if a word is defined "to apply to and include", the definition is understood as
extensive. 45. These meanings of the expressions "means", "includes" and "means and includes"
have been reiterated in Delhi Development Authority v Bhola Nath Sharma. 46. The use of word
"any", eg any building also connotes extension for "any" is a word of very wide meaning and
prima facie the use of it excludes limitation.

Cases

A definition which defines a word to mean A and to include B and C cannot in its application be
construed to exclude A and to include only B and C. The definition of "owner" in the Bihar
Taxation on Passengers and Goods (Carried by Public Service Motor Vehicles) Act, 1961 means
the owner and includes bailee of a public carrier vehicle or any manager acting on behalf of the
owner. It was held that the definition could not be applied to exclude the actual owner and to free
him from liability. 48. Further, the natural meaning of the "means" part of the definition is not
narrowed down by the "includes" part. 49. Thus the definition of "sale price" in section 2(d) of
the West Bengal Sales Tax Act, 1954 to mean "money consideration for the sale" and to include
"any sum charged for containers etc." was construed to include freight and delivery charges paid
by the seller as being within the ordinary meaning of the words "money consideration for the
sale" though not mentioned in the inclusive part of the definition.

The inclusive definition of "district Judge" in Article 236(a) of the Constitution has been very
widely construed to include hierarchy of specialised Civil Courts viz., Labour Courts and
Industrial Courts which are not expressly included in the definition. 54. But the case of Labour
Law Practitioners' Association 54. has been distinguished in RD Joshi v High Court of Bombay.
55. It has been held that on fulfilling the criteria in Article 233(2) of the Constitution alone, can a
candidate be appointed to a judicial office in accordance with the procedure stated in Article
233(1). Article 236(a) clearly shows that the expression "district Judge" includes different kinds
of Judges but not Family Court Judges who are not members of "judicial service" as defined in
Article 236(b).

South Gujarat Roofing Tile Manufacturers Association v State of Gujarat, AIR 1977 SC
90, pp 93, 94 : 1977 SCC (L&S) 15.

the word "include" may in exceptional cases be construed as equivalent to "mean and include".
Entry 22 added by the Gujarat Government to Pt I of the Schedule to the Minimum Wages Act,
1948 furnished an illustration of such use. The Entry refers to "Employment in Potteries
Industries" and is followed by an Explanation which reads: "For the purpose of this Entry
potteries industry includes the manufacture of the following articles of pottery namely—(a)
Crockery, (b) Sanitary appliances, (c) Refractories, (d) Jars, (e) Electrical accessories, (f)
Hospital wares, (g) Textile accessories, (h) Toys, (i) Glazed tiles". Construing the Explanation
the Supreme Court held that the items included in it were plainly comprised in the expression
"potteries industry" which showed that the word "includes" was not used to extend the normal
meaning of this expression. For the same reason it was clear that the Explanation was not added
to indicate by way of abundant caution that the items included in it were comprised in "potteries
industry". The conclusion was reached that the word "includes" was used in the Explanation in
the sense of "means" and the definition provided by the Explanation was exhaustive. It was,
therefore, held that Mangalore pattern roofing tiles manufactories were not covered by Entry 22
as they were not included in the Explanation

AMBIGUOUS DEFINITIONS

If literal reading of a "prima facie" vide definition leads to absurdity, a restricted meaning may
have to be given to it to avoid the absurdity.31

Wide words used in an interpretation clause may thus be given a limited meaning having regard
to the context as a whole for a word in a statute whether it be in the body of the statute or in the
interpretation clause is not to be construed without reference to the context in which it appears.
However, it will not be correct to say that a wide word in an inclusive definition should be given
a limited scope by reference merely to the ordinary meaning of the word defined

In State of WB v Swapan Kumar Guha, (1982) 1 SCC 561 pp 568, 569 paras 5 to 7, the Court
recast the definition of money scheme in order to rectify the mistakes of bad drafting.

Because of Article 367 of the Constitution, the General Clauses Act, 1897, "unless the context
otherwise requires", applies for construction of the Constitution. The definition of "State" in
section 3(58) of the General Clauses Act, 1897 includes "Union Territories" and, therefore, the
word "State" in Article 3 25. and Entry 80 26. of the Union List in the Constitution includes
Union Territories. But as the context otherwise requires the word "State" in Article 246 does not
include Union Territories.

Tata Engineering and Locomotive Co Ltd, Bombay v Registrar of the Restrictive Trade
Agreement, AIR 1977 SC 973, p 978

Section 2(o) of the Monopolies and Restrictive Trade Practices Act, 1969 defined "restrictive
trade practice" to be a trade practice which has, or may have, the effect of preventing, distorting
or restricting competition in any manner. Dealing with this definition, the Supreme Court 1.

31
SR Batra v Smt Taruna Batra, AIR 2007 SC 1118 (paras 21 to 26)
observed that the decision whether a trade practice is restrictive or not has to be arrived at by
applying the rule of reason and not on the doctrine that any restriction as to area or price will per
se be a restrictive trade practice. Every trade agreement restrains or binds persons or places or
prices but merely for that reason it cannot be held to be a restrictive trade practice. That is clearly
not the intention of the definition although couched in wide words. The question to be
determined in such cases is whether the restraint is such as regulates and thereby promotes
competition or whether it is such as may suppress or even destroy competition

National Building Construction Corp Ltd v Pritam Singh Gill, AIR 1972 SC 1579 : 1972 (2)
SCC 1.

Similarly in construing the word "workman" in section 33C(2) of the Industrial Disputes Act,
1947, it was held that the word included a dismissed workman although in the definition of that
word as given in section 2, a dismissed workman is included only for the purpose of industrial
disputes under section 10.

PROVISO

The normal function of a proviso is to except something out of the enactment or to qualify
something enacted therein which but for the proviso would be within the purview of the
enactment.

So when on a fair construction the principle provision is clear, a proviso cannot expand or limit
it.32

Cases Rohitash Kumar v Om Prakash Sharma, (2013) 11 SCC 451, p 462.

Another instance of interpretation of a proviso is seen in the context of rule 3(iv) of the Border
Security Force (Seniority, Promotion and Superannuation of Officers) Rules, 1978, which
provides that the seniority of officers, subject to clauses (i), (ii) and (iii) of rule 3, shall be
determined according to the date of their continuous appointment in that rank. The proviso to
rule 3(iv) states that in case of direct entrants, the date of appointment shall be the date of the
commencement of their training course at the BSF Academy. In this case, direct entrants to the
post of Assistant Commandant had been split into two batches for training: batch 16, which
commenced training on 1 February 1993, and batch 17, which commenced training on 2 July
1993. Meanwhile, a person was promoted to the rank of Assistant Commandant with effect from
15 March 1993. The issue before the Court was whether the promotee was senior to batch 17 of
direct entrants. The Court held that the proviso will have application in a case where officers
who have been selected pursuant to the same selection process are split into separate batches and,
32
Dwarka Prasad v Dwarka Das Saraf, AIR 1975 SC 1758, p 1763
applying the proviso, held that the direct entrants who, though selected prior to the promotee,
started their training after the promotee joined the said post, were junior to the promote

TM Kanniyan v ITO, Pondicherry, AIR 1968 SC 637, p 641 : 1968 (2) SCR 103

By Article 240(1) of the Constitution, power is conferred on the President "to make Regulations
for the peace, progress and good Government" of the Union territories. There is a proviso
appended to Article 240(1) which directs that the President shall not make any regulation after
the Constitution of a Legislature of a Union territory for that Union territory. It was contended on
the basis of the proviso that the power of the President is co-extensive with the power of the
Legislature which may be constituted for a Union territory and hence the President's power to
make regulations is limited to subjects falling within the Concurrent and State List. This
argument was negated on the reasoning that the enacting part of Article 240(1) in plain terms
confers plenary powers of making regulations which are not curtailed by the proviso.

The language of a proviso even if general is normally to be construed in relation to the subject
matter covered by the section to which the proviso is appended.In other words normally a
proviso does not travel beyond the provision to which it is a proviso. "It is a cardinal rule of
interpretation", observed Bhagwati J, "that a proviso to a particular provision of a statute only
embraces the field which is covered by the main provision. It carves out an exception to the main
provision to which it has been enacted as a proviso and to no other."

Ram Narain Sons Ltd v Assistant Commissioner of Sales Tax, supra, [construction of Article
286 as it stood prior to the Constitution (Sixth Amendment) Act, 1956]

It was, therefore, held that the proviso appended to Article 286(2) of the Constitution authorising
the President to lift the ban imposed by the said provision was not available to lift the ban
imposed by Article 286(1).

The application of this rule presents difficulty when a proviso in a statute does not form part of a
section but is itself enacted as a separate section. The drafting of a proviso in such a form makes
it necessary to determine as to which section or sections the section containing the proviso is
enacted as exception or qualification. The Newcastleon-Tyne Improvement Act, 1865, in section
65 furnishes an illustration of such a proviso. Section 65 which is worded as a proviso reads:
"Provided always that nothing in this Act shall authorise the Corporation or any lessee of the
Corporation to do or be party to any act or thing amounting to a nuisance." On a scrutiny of the
sections the court of Appeal held that section 65 was a proviso to the group of sections dealing
with Sewers and Sanitary arrangement, i.e., sections 62 to 64 and not to section 22 which dealt
with Streets

If the enacting portion of a section is not clear, a proviso appended to it may give an indication
as to its true meaning

In Hindustan Ideal Insurance Co Ltd v Life Insurance Corp of India, AIR 1963 SC 1083, p
1087 : 1963 (2) SCR 56, Mudholkar J, stated the rule thus: There is no doubt that where the main
provision is clear, its effect cannot be cut down by the proviso. But where it is not clear, the
proviso, which cannot be presumed to be a surplusage, can properly be looked into to ascertain
the meaning and scope of the main provision

The general rule in construing an enactment containing a proviso is to construe them together
without making either of them redundant or otiose

Even if the enacting part is clear effort is to be made to give some meaning to the proviso and to
justify its necessity. But a clause or a section worded as a proviso, may not be a true proviso and
may have been placed by way of abundant caution. As was pointed out by Lord Herschell: I am
satisfied that many instances might be given where provisos could be found in legislation that are
meaningless because they have been put in to allay fears when those fears were absolutely
unfounded and no proviso at all was necessary to protect the persons at whose instance they were
inserted. In such cases the proviso has no effect whatsoever on the enactment and "cannot be
relied on as controlling the operative words.

The construction of section 76 of the Companies Act, 1956, illustrates the difficulty arising out
of such provisos. The argument before the Supreme Court was that the limit imposed by section
76(1)(ii) was inapplicable where the commission was claimed not out of capital but out of profits
and reliance was placed on the words, "capital moneys" as they occurred in section 76(2) as
giving the clue to the limitation imposed by section 76(1). The majority (Gajendragadkar and
Wanchoo JJ) rejected the contention holding that section 76(1) was unambiguous and section
76(2) was "inserted to allay fears or to remove misapprehensions." Sarkar J (dissenting)
however, found section 76(1) not so clear and restricted its operation to payment of commission
out of capital, having regard to the provision made in section 76(2)

In Sundaram Pillai v Pattabiraman, Fazal Ali J, observed that by and large a proviso may serve
the following four different purposes:

(1) qualifying or excepting certain provisions from the main enactment;

(2) it may entirely change the very concept of the intendment of the enactment by insisting on
certain mandatory conditions to be fulfilled in order to make the enactment workable;

(3) it may be so embedded in the Act itself as to become an integral part of the enactment, and
thus acquire the tenor and colour of the substantive enactment itself; and

(4) it may be used merely to act as an optional addenda to the enactment with the sole object of
explaining the real intendment of the statutory provision.

The above summary cannot, however, be taken as exhaustive and ultimately a proviso like any
other enactment ought to be construed upon its terms.

Exception" is intended to restrain the enacting clause to particular cases; "Proviso", is used to
remove special cases from the general enactment and provide for them specially; and "Saving
Clause" is used to preserve from destruction of certain rights, remedies or privileges already
existing

Therefore, where the language used in a proviso is quite clear and no alternative view is
possible, it is futile to go into the question whether the proviso operates as a substantive
provision or only by way of an exception, and the plain meaning must be adopted.

EXPLANATION

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

the section. It becomes a part and parcel of the enactment.

In the Bengal Immunity Co's case the Explanation appended to Article 286(1) of the
Constitution was restricted to its avowed purpose of explaining an outside sale for purpose of
clause (1) and was construed as not conferring any taxing power or as restricting the ban
imposed by clause (2) of the same Article. However, an identical Explanation contained in a
State legislation was construed differently and was held as conferring taxing power. The context
and setting of the two enactments, it was pointed out, made the entire difference although the
language was identical

In Sundaram Pillai v Pattabiraman,. Fazal Ali J, culled out from earlier cases, the following as
objects of an Explanation to a statutory provision:

(a) to explain the meaning and intendment of the Act itself,

(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to
make it consistent with the dominant object which it seems to subserve.

(c) to provide an additional support to the dominant object of the Act in order to make it
meaningful and purposeful,
(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof
but where some gap is left which is relevant for the purpose of the Explanation, in order to
suppress the mischief and advance the object of the Act it can help or assist the court in
interpreting the true purport and intendment of the enactment, and

(e) it cannot, however, take away a statutory right with which any person under a statute has
been clothed or set at naught the working of an Act by becoming an hindrance in the
interpretation of the same.

But it would be wrong to always construe an Explanation limited to the aforesaid objects. As
earlier stated, the meaning to be given to an Explanation will really depend upon its terms and
not on any theory of its purpose

SCHEDULES

Schedules appended to statutes form part of the statute. They are added towards the end and their
use is made to avoid encumbering the sections in the statute with matters of excessive detail.

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

Forms prescribed under rules become part of rules and, therefore, if the Act confers an authority
to prescribe by rules particulars of an application, the authority may be exercised by prescribing
a form of application which indicates the particulars. But a form prescribed under the Rules can
never have any effect on the interpretation or operation of the parent statute.

EXTERNAL AIDS TO CONSTRUCTION

ENGLISH PRACTICE

TRADITIONAL VIEW

 The intent of the Parliament is not to be gathered from the history of theStatute.
 The following was deemed not admissible - the Bill, the amendmentsthereto (successful
or unsuccessful), the speeches by the minister whointroduced the Act, recommendations
of a committee preceding the law.
 Exceptions to the Rule-
 External or historical facts to understand the subject matter
 The mischief that is to be accounted for by the statute.
 Both these were purposes for which Parliamentary history wasconsidered
admissible – ground used was “Surroundingcircumstances” – consider reports,
committee recommendations,resolutions of committee, draft bill if not
controverted, White Paper.
  The House of Lords in Black-Clawsan International Ltd. v PapierwerkeWaldhof-
Aschaffenburg, A.G33., unanimously held that a report of a committee presented to
parliament preceding the legislation could be seen for finding out the then. state of the
law and the mischief required to be remedied.The however, held that the report could not
be looked at for finding out the intention of Parliament, i.e., for a direct statement ofwhat
the proposed enactment meant even though the report set out a draftbill which was
enacted without any alteration.The minority were of the view that when the draft bill
wasenacted without any alteration, it was Parliament's intention to do what thecommittee
recommended and to achieve the object the committee had inmind, and therefore, the
committee's observations on the draft bill wouldform the most valuable guide to the
intention of Parliament.

MODERN VIEW

 The distinction drawn between use of PH for the purpose of gathering theintention of the
Parliament on the one hand, and for the purpose ofunderstanding the evil or defect that
the Act seems to cure is obscure.
 Both the alternative uses suggested above aim to achieve the same goal – andis therefore,
part of the same process – “discerning the true meaning of theStatute”
 Pepper v. Hart: Children of teachers to be educated/enrolled at 1/5 thof the normal fees
charged – this reduced fee covered the additional cost tothe school to educate one child.
Provision under deliberation was a taxstatute: Cash equivalent of this benefit was
chargeable to income tax – whatis the CE of this benefit – S. 63(1) – amount equal to the
cost of the benefit –Per 63(2), cost of benefit means “amount of any expense incurred in
or inconnection with its provision.” Revenue said that for the purposes of incometax of
such teachers, the average cost of the school (total cost/per pupil)should be the
construction. Teachers said that it should be the additional cost(the actual expense)
incurred by the school in providing the benefit. Theysaid so because the additional or the
marginal cost incurred would be nilsince the cost of running the school generally would
be unaffected by thepresence of their pupil, and the real extra cost was covered by
theconcessional fee they paid – this construction was beneficial for them.
1. Clearly, there were two constructions possible and both are plausible– ambiguity
2. Use PH – Statements of Financial Secretary of the Treasury andCommittee Reports
used.
3. FAVOURED the teachers as the statements by the Secretary was clear that the
concessionary benefits should be worked out on themarginal cost to the employers and
not the average cost.
 Conditions in Pepper v. Hart:
1. Construction of Statute sans PH is ambiguous, absurd or meaningless
33
(1975) All ER 810 (HL).
 2. Reliance to figure out the mischief – so this mischief must be clearlyextractable from
the PH – (Exclusion of Clues?)
3. Only the Speech of the minister/proposer who proposes the Bill can be used – As the
above 2 criteria can be best determined from here.
a. Clear and unambiguous statements by Ministers
i. What is an unclear statement as such?
ii. Directed at the very point in question? OrInferential?
b. White Papers and Reports of Committees
i. Example - White Paper on Online Harms

AMERICAN VIEW

 While resort to debates in Congress is not an appropriate or a reliable guide to the

meaning of words or construction of the Statute, but they may still be relied upon to
ascertain the environment at the time of enactment of the law.
 Academic literature points to the support and opposition registered towards this
approach:
 Opposition: Certainty associated with statute is diminished if PH is used andit
convolutes the true meaning of words – “re-making statutes that fit theirhistories”
1. Problems in advising – Practical side of things – the statute is nolonger a safe basis in
consulting – consult also the debates, the reports, the opposing views and then predict
what may appeal to thejudge.
a. Is this really a problem? How do judges behave?
b. Realistic advice is given on the law and facts – notnecessarily on the disposition of
judges or how the law cameabout.

 Introduces policy debates in the courts – CORRECT! But why is thisillegitimate?

a. Separation of powers v. Law translated to a livingenvironment.
b. Law as a social fact – is a reflection of policy – balancingclaims – some insight needed
to guide courts – else law isquite meaningless
 i. Advertisement in India (Internship – Find CASE)
1. EXAMPLE - X minutes only for advertising for channels – TRAI Circular –
CHALLENGED on the basis of Article19(1)(a) – Commercial Speech – balancewith
19(2) – If purpose of advertisement notknown, the harms of advertisement forconsumers
not known, the policy behindrestriction on advertisement (content-basedor content-
agnostic), the rights of channelowners/broadcaster and consumers, can theCourt really
balance claims?
ii. Support: Use the setting of the legislative process – and not the intuition of
the judge.So that judicial law-making under the guise of interpretation may be
reduced to the minimum.
 INDIAN VIEW:

 Debates of Constituent Assembly may be relied upon or debates

surroundingConstitutional Amendments may also be relied upon. [S.R. Choudhury v.
State ofPunjab, AIR 2001 SC 2707, p.2717]
 Statements of people/Ministers introducing the Bill may be used to ascertain the
objectand purpose of the Act – and give credence to a narrow or broad interpretation
ofterms in the Statute – when literal meaning(s) were of no assistance. [RY Prabhoo v.PK
Kunte, 1995 (7) SCALE 1, 10-11.]
 Pepper v. Hart was noticed by the Indian SC in Narsimha Rao v. State , AIR 1998 SC
2120, 2158, and other cases too. But no express approval or disapproval.
 Is an MP a public servant under Section 2(c)(viii) of the Prevention ofCorruption
Act, 1988?
 Not look at speeches or debates since the words were unambiguous andminister’s
speech was equivocal.
 Pepper v. Hart conditions were not satisfied.
 Statement of Objects and Reasons in the Bill – only understanding the background
andantecedent state of affairs leading to the legislation, the evil sought to be remedied –
but not control the substantive portions of the statute.
 State of WB v. Union of India, AIR 1963 SC 1241, 1247 [FederalismCase]; In the
last mentioned case a clear declaration in the Statement ofObjects and Reasons that
that the Central Government does not intend to acquire the proprietary rights vested
in the States”; was held to be ineffective to cut down the generality of the words used
in the statute which was construed asconferring power upon the Union to acquire the
rights of States in Coalbearing lands.
 Similarly, “every person” used in the Act cannot be circumscribed tomean only non-
tribals by recourse to the Statement of Objects andReasons. Bhaiji v. Sub-divisional
Officer, (2003) 1 SCC 692, 700.
 170-B. Reversion of land of members of aboriginal tribe which wastransferred by
fraud: “Every person who on the date ofcommencement of the Madhya Pradesh
Land Revenue Code (Amendment), 1980 (hereinafter referred to as the
Amendment Actof 1980) is in possession of agricultural land which belonged to
amember of a tribe which has been declared to be an aboriginal tribeunder
subsection (6) of Section 165 between the period commencingon the 2nd
October, 99 1959 and ending on the date of thecommencement of Amendment
Act, 1980 shall, within 6]two years]of such commencement, notify to the Sub-
Divisional Officer in suchform and in such manner as may be prescribed, all the
information asto how he has come in possession of such land.”
  Real reason why Statement of Objects and Reasons should not beused as
interpretive tools: Only the reasons and mischief – it does not reflectwhat the
majority of the Houses agreed upon when they passed it into a law –this is
because the Bill may have undergone substantial changes during itspassage in the
House – and it is not certain that the reasons which led to itspassage through the
House(s) have remained the same when the Bill becamean Act. They do not form
part of the Bill and are not voted upon by themembers. SEE Ashwini Kumar’s
case, AIR 1952 SC 369, 378.
iv. Tata Engineering and Locomotive Co. Ltd. v. Gram Panchayat, Pimpri ,AIR 1976 SC
246.In dealing with an Act which in 1954 amended section 89 of the Bombay Panchayat Act,
1933 and substituted the word 'building" in place of 'houses', the Supreme Court did not
accept the recital in the Statement of Objects and Reasons that the amendment was made for
the reason that the Panchayats could not levy tax on buildings and held that the word 'houses'
as originally used was comprehensive enough to include all buildings including factory
buildings and that the amendment only made explicit what was implicit.

 Reports of Commissions or Enquiry Committees preceding the introduction of the

Billhave been used to gather evidence of historical facts and surrounding circumstances
orthe mischief or the evil intended to be addressed and sometimes for interpreting theAct.
i. Mischief – blah blahblah – Hanif Qureshi – Cow Slaughter decision –

several committee reports were analysed to discover facts, historical

evidence, and to understand the justification of the impugned Act – and judge

its reasonableness.

2. Also becomes very important for judging constitutional conformity

of the laws.

ii. Reports of special committees, Joint Parliamentary Committees are also

admissible. [Antulay decision, Supreme Court]

LATER SOCIAL, POLITICAL AND ECONOMIC DEVELOPMENTS AND SCIENTIFIC INVENTIONS

 CONCEPT:
 a statute may have to be historically interpreted “as if one were interpreting it the day
after it was passed.” But generally, statutes are of the “always speaking variety” and the
court is free to apply the current meaning of the statute to present day conditions.
  An Act of Parliament should always be speaking – “always be relevant and alive” in its
term and tenor.
 To check whether to apply historical meaning or current meaning - Unless a contrary
intention appears, an interpretation should be given to the words used to take in new facts
and situation, if the words are capable of comprehending them.
 Further check the intention of the law makers:Did they intend that thewords be
given the meaning as they would have received immediately after the enactment
of the statute OR if they intended that would be proper for the court to adopt the
current meaning of the words.
 Limitation of the doctrine – The language of an old statute should not be construed to
embrace something conceptually different. [Birmingham City Council v. Oakley,
(2001) 1 All ER 385, p. 396 (HL).]
 APPLICATION:
 Guidanceon when an old statute can apply to new state of affairs not in
contemplation when the statute was enacted - Lord Wilberforce in his dissenting
speech in Royal College of Nursing of the U.K. v. Dept. of Health and Social
Security.
 It is a fair presumption that Parliament's policy or intention is directed to that state of
affairs existing, and known by Parliament to be existing, at the time.
 When a fresh set of facts bearing on policy, comes into existence, the courts have to
consider whether they fall within the parliamentary intention.
 They may be held to do so, if they fall within the same genus of facts as those
to which the expressed policy has been formulated.
 They may also be held to do so if there can be detected a clear purpose in the
legislation which can only be fulfilled if the extension is made.
 How liberally these principles may be applied must depend on the nature of
the enactment and the strictness or otherwise of the words in which it has been
expressed.
 The courts should be less willing to extend expressed meanings if it is clear
that the Act in question was designed to be restrictive or circumscribed in its
operation rather than liberal or permissive.
 They will be much less willing to do so where the new subject matter is
different in kind or dimension from that for which the legislation was
passed.
 In any event there is one course which the courts cannot take under the law of this
country: they cannot fill gaps; they cannot by asking the question, ‘What would
Parliament have done in this current case, not being one in contemplation, if the
facts had been before it’ attempt themselves to supply the answer, if the answer is
not to be found in the terms of the Act itself.
 Senior Electric Inspector v. Laxminarayan Chopra, AIR 1962 SC 159, p. 162
- Legislative terms are often couched in the terms that have considerable breadth.
 Therefore, a statute may be interpreted to include circumstances or situation
which were unknown or did not exist at the time of enactment of the statute
A. Change in Social Attitudes:
 Cases:
 Navtej Singh Johar - Homosexuality decision of the Supreme Court –
Constitution and IPC – 377 “unnatural sex” – decriminalised it – Arguments used
by Court – human dignity, decisional autonomy and right to privacy – these were
after all private consensual acts – right to express choices without fear –
discriminates against transgender persons – constitutional morality (‘ideals and
morals of the Constitution for a progressive society that is inclusive and respects
individuals’ – as opposed to societal morality – use Constitutional Morality to
transform societies).
 Anul Garg v. Hotel Association of India:Section 30 of the Punjab Excise Act,
1914 prohibited the employment of any man under the age of 25 years or any
woman in any part of premises in which liquor or intoxicating drugs were
consumed by the public. This law which may have been good having regard to the
social conditions as they prevailed in the 20th Century, but having regard to the
present social conditions and equality to sexes guaranteed under the Constitution,
the same was declared invalid. 19.
 STATUTES UK
 Change in social attitude towards homosexuals – Two person of same sex
cohabiting together with mutual degree of interdependence have been held as
constituting a ‘family’ but were not regarded as husband and wife though
different sex partners living together without marriage were so regarded under
a special provision.
 After enforcement of Human Rights Act, 1998 in England from
October 2000 for giving effect to the European Convention on Human
Rights, Article 14 of which makes sexual orientation as an
impermissible ground of discrimination, the same statute has been
construed to regard even same sex partners living together as husband
and wife to avoid incompatibility with human rights. [Ghaidan v.
Mendoza, 2002, Ct of Appeal]20 As cautioned by Lord Slynn“when
considering social issues in particular judges must not substitute their
own views to fill gaps”.[Fitzpatrick, 1999]
 Change in attitude towards transexual: Previously in Bellinger v. Bellinger
[2002, Ct of Appeal] held that a male-to-female transsexual who underwent
irreversible surgery for gender reassignment could not in the absence of
legislation of Parliament, be treated as ‘female’ for purposes of marriage under
section 11(c) of the Matrimonial Causes Act, 1973 and her marriage with a male
was held to be void
  Goowin v. U.K. the ECtHR , expressed the view that in the twenty first
century the right of transsexuals to personal development and to physical
and moral security in the full sense enjoyed by others in society could not
be regarded as a matter of controversy requiring the lapse of time to cast
clearer light on the issues involved.24 The court directed the Government
of the United Kingdom to implement such measures in due course as it
considered appropriate “to fulfill its obligations to secure the applicant's (a
post-operative male to female transsexual) and other transsexual's right to
respect for private life and right to marry in compliance with the
judgment.”2
 Soon thereafter the Court of Appeal in A v. Chief Constable of
Yorkshire 26 held that a post-operative male to female transsexual was to
be regarded as female for purposes of complaint of sex discrimination and
the House of Lords in appeal in the case of Bellinger v. Bellinger 27
declared.
 Aftermath: Section 11(c)of the Matrimonial Causes Act, 1973
incompatible with the Convention rights. The House of Lords later in
appeal confirmed the decision of the court of Appeal in A v. Chief
Constable of Yorkshire 28 on the ground that a transsexual had a right to
be recognised his or her reassigned gender for the purposes of
discrimination between men and women in the fields covered by the Equal
Treatment Directive of the Community law and section 54(9) of the Police
and Criminal Evidence Act , 1984 which requires that intimate searches
must be carried out by a constable who ‘shall be of the same sex as the
person searched’.
B. SCIENTIFIC INVENTION
 Definition of ‘cinematograph’ contained in section 2(e) of the Cinematograph Act,
1952.
 Cinematograph will cover video cassette recorders/players (developed in 1970s)
for representation of motion pictures on a television screen [Laxmi Video
Theatres v. State of Haryana, AIR 1993 SC 2328]
 “In a modern progressive society it would be unreasonable to confine the
intention of a Legislature to the meaning attributable to the word used at the time
the law was made, for a modern Legislature making laws to govern a society
which is fast moving must be presumed to be aware of an enlarged meaning the
same concept might attract with the march of time and with the revolutionary
changes brought about in social, economic, political and scientific and other fields
of human activity. 8 Indeed, unless a contrary intention appears, an interpretation
should be given to the words used to take in new facts and situations, if the words
are capable of comprehending them”
 Evidence taken of a witness in America by video conferencing in India
  here the accused is being tried will satisfy the requirement of evidence taken in
presence of the accused under section 273 of the Criminal Procedure Code
enacted in 1973 when the technique of video conferencing had not developed
[State of Maharashtra v. Dr. Praful B. Desai, 2003 AIR SCW 1885: (2003) 4
SCC 601].
 A domain name, the original role of which was only to provide an address for computers
on the internet now after it is being used as a business identifier and provides
information/services on the internet has been held to be a trade mark under section 2(zb)
of the Trade Marks Act ], 1999 and passing off action can be based on it. [Satyam
Infoway Ltd. v. Sifynet Solutions Pvt. Ltd., AIR 2004 SC 3540]
 State v. S.J. Choudhary, 1996 (2) Scale 37, pp. 40, 41: AIR 1996 SC 1491, p. 1496
(1996) 2 SCC 428 (para 16) -Section 45 of the Indian Evidence Act, 1872 which only
mentions about handwriting experts and not typewriting experts for the reason that
typewriters were invented much later than 1872
 In the instant case the state wanted to use the opinion of a typewriting expert as
evidence in a murder case. The Supreme Court then overruled its decision in the
case Hanumant v. State of Madhya Pradesh (AIR 1952 SC 343) which held that
the opinion of the typewriting expert was inadmissible as evidence in the court of
law. On the question of meaning of the word ‘handwriting’ in Section 45 to
include typewriting, the word ‘science’, occurring independently and in addition
to the word ‘handwriting’ in Section 45, is sufficient to indicate that the opinion
of a person specially skilled in the use of typewriters and having the scientific
knowledge of typewriters would be an expert in this science; and his opinion
about the identity of typewriting for the purpose of identifying the particular
typewriter on which the writing is typed is a relevant fact under Section 45 of the
Evidence Act.
 State of Punjab v. Amritsar Beverages Ltd., (2006) 7 SCC.607 : AIR 2006 SC 2820 -
Similarly, the provision in section 14 of the Punjab General Sales Tax Act, 1948
authorising the officers to seize account books and return the same after putting their
signature and seal was also held to apply when the account books were contained in a
hard disk. It was pointed out that the provision could be complied with by seizing the
hard disk. The officers could make out copies of the said hard disk or obtain a hard copy
and fix their signature and official seal in physical form thereupon and furnish a copy
thereof to the dealer. 46. [Extra]
 Selvi v State of Karnataka, (2010) 7 SCC 263, 264 paras 170 to 172 : AIR 2010 SC
1974:The explanation added in Section 53, 53A and 54 of the CrPC, 1973 defines
"examination" to include "the examination of blood, blood stains, semen, swabs in case
of sexual offence, sputum and sweat, hair samples and finger nail clippings by the use of
modern and scientific techniques including DNA profiling and such other tests which the
registered medical practitioner thinks necessary in a particular case." The Supreme Court
declined to read the expression "such other tests" to cover narco analysis technique;
 polygraph examination and Beep test as testimony obtained after involuntary
administration of these tests would amount to testimonial compulsion offending Article
20(3) and would also be restrictive of personal liberty of the accused under Article 21.
[Extra]
C. POLITICAL CHANGES
A. Dealing with section 123 of the Indian Evidence Act, 1872 , and the phrase ‘affairs of
the State’, Gajendragadkar, J. observed: “It may be that when the Act was passed, the
concept of Governmental functions and their extent was limited; and so was the
concept of the words ‘affairs of the State’ correspondingly limited; but as is often
said, words are not static vehicles of ideas or concepts. As the content of the ideas or
concepts conveyed by respective words expand, so does the content of the words keep
pace with the said expanding content of the ideas or concepts and naturally tend to
widen the field of public interest which the section wants to protect.” [State of
Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493].
D. ECONOMIC PLANE:
a. Porritts and Spencer (Asia) Ltd v State of Haryana, AIR 1979 SC 300, p 303 :
1979 (1) SCC 82:Global changes and outlook in Trade and Commerce are important
factors – In dealing with the word "textiles" and in holding that cotton/woollen dry
felts are textiles, the Supreme Court said that it must be remembered that the concept
of textiles is not a static concept and it has, having regard to newly developing
materials, methods, techniques and processes, a continually expanding content and
new kinds of fabrics may be invented which may legitimately, without doing any
violence to the language, be regarded as textiles.
E. RULE WITH RESPECT TO CONSTITUTIONS AND CONSTITUTION ACTS:
A. It is aptly said that ‘the intention of a constitution is rather to outline principles than to
engrave details’. "In the interpretation of a constitutional document "words are but a
framework of concepts and concepts may change more than words themselves".
B. Constitution is a living and organic thing which of all instruments has the greatest
claim to be construed broadly and liberally with an object oriented approach and the
experience gained in its working.
C. A court has more freedom in the interpretation of a Constitution than in the
interpretation of other laws. 66.
D. There is greater reason in giving to its language a liberal construction so as to include
within its ambit the future developments in various fields of human activity than in
restricting the language to the state of things existing at the time of the passing of the
Act.[ Union of India v. Naveen Jindal, (2004) 2 SCC 510, para 39]
E. A Constitution unlike other Acts is intended to provide an enduring instrument to
serve through a long lapse of ages without frequent revision. It is not only designed to
meet the needs of the day when it is enacted but also the needs of the altering
conditions of the future. It contains a framework of Government, a mechanism for
making laws and resolution of constitutional disputes; and in a federation distribution
 of legislative fields between the centre and the units. It very often refers to the ideals
which it seeks to achieve and secures certain fundamental rights to the citizens. The
fields of 9 legislation, the ideals and the rights are expressed in general terms which
are compressed sentences if not Chapters
F. The principle of broad and liberal construction does not, however, mean that
limitations based on its scheme and basic structure cannot be read into its language
when it becomes necessary to do so.53
G. Art. 21 – “No person shall be deprived of his life or personal liberty except according
to procedure established by law”.
I. a. Negative right– refrain from affairs of individuals unless there is a law to
that effect [AK Gopalan] – Maneka Gandhi [Procedural and Substantive Due
process arguments incorporated] – dynamic interpretation.
II. b. But then, the negative right became a positive right. Several threads –
Environmental Law (Right to Pollution free water and environment – Subhash
Kumar Case v. State of Bihar, 1991 1 SCC 598); Vellore Citizens Welfare
Forum (Sustainable Development Goals – balance industry and environment –
pollution of river – use Precautionary Pricniple and Polluters Pay Principle)
III. c. All bare necessities but also food – Francis Coralie Mullin v. Delhi
(nutrition, clothing, shelter, reading and writing, expressing oneself, and not
just protection of limb and faculty); PUCL v. Union of India (SC, 2001) – led
to the enactment of Food Security Act
IV. d. Legal representation – Hussainara Khatoon
V. e. And many more.
 2. Doctrine of Sovereign Immunity [Please read Consti part from page 200-217 from the
module]
 a. English Doctrine of “King/Crown can do no wrong”
 b. Change in circumstances as State involved in commercial and public welfare
activities.
 c. a violation of fundamental rights by the State, or its instrumentalities or their
officers acting in the course of employment is a public law wrong to which the
doctrine of sovereign immunity has no application and the State is liable to
compensate the victim on the principle of strict liability i. Chandrima Das
(Railways) ii.Rudul Shah v. State of Bihar, 1960 iii. NilbatiBehra v. State of
Orissa, AIR 1993 SC 1960 -
 The cases of NilbatiBehra and DK Basu related to violation of fundamental
right under Article 21 but the observations made in, NilbatiBehra decided by a
three Judge Bench, are general that violation of fundamental rights will be a
public law wrong redressable by award of compensation under Articles 226 and
32.
 d. Sovereign Immunity – now very restricted – essential law and order and
military, that too very limited.
  3. Basic Structure – Shankari Prasad and Sajjan Singh - culminating in Keshavananda –
basic structure also evolving – free and fair elections, Rule of Law, Equality, Secularism
(Bommai)…
 4. Power to do complete justice –
 PremChand Garg (AIR 1963 SC 996) - and Antuley (AIR 1988 SC 1531) to Union
Carbide and Misra Case (AIR 1995 SC 2348)

REFERENCE TO OTHER STATUTES

A. STATUTES IN PARIMATERIA – Statutes are in parimateria which relate to the same person or
thing, or to the same class of persons or things. The word par must not be confounded with the
word simlis. It is used in opposition to it—intimating not likeness merely but identity. It is a
phrase applicable to public statutes or general laws made at different times Substanitand in
reference to the same subject.Don’t use them when scope is different, or subject matter is
different.
 The whole statute need not be in parimateria - it is alright if some provisions in respective
statutes are in parimateria. Eg: the meaning of ‘shall presume’ in Section 4 of POCA, 1947.
State of Madras v. A. Vaidyanath Ayer, AIR 1958 SC 61, 65
 on proof that the accused has accepted any gratification other than legal
remuneration, it shall be presumed unless the contrary is established by the accused
that the gratification was accepted as a bribe
 2. This provision is in parimateria with Evidence Act
 a. Reasoning: Same subject matter – what and how to prove
 a. Element: §4, evidence Act - definition of the expression ‘shall presume’ in
the Evidence Act has been utilised to construe the words ‘it shall be
presumed’ in section 4 of the Prevention of Corruption Act , 1947
 b. “Whenever it is directed by this Act that the Court shall presume a fact, it
shall regard such fact as proved, unless and until it is disproved.”
 [The Bangalore Turf Club Ltd. & Others v/s Regional Director, Employees State
Insurance Corporation & Others] - Words used in a particular statute cannot be used to
interpret the same word in a different statute especially when the two statutes are not
parimateria - The Supreme Court has accordingly held that the definitions of "shop" in
the Maharashtra Shops and Establishments Act, 1948, and the Karnataka Shops and
Commercial Establishments Act, 1961, cannot be used to interpret the word "shop" in the
context of notifications issued under the Employees' State Insurance Act, 1948, because
though all three Acts deal with labour and workmen, in essence and spirit they have a
different scheme and application. Hence, preferring a purposive interpretation, Turf
Clubs were held to be duly covered under the term "shop" for the purposes of the ESI Act
and the notifications issued thereunder. 60 [Extra]
 The rule that related provisions in different Acts but having bearing on the same subject
have to be read together can be illustrated from the case of Common Cause, A
Registered Society v UOI 67 - which interpreted Explantion 1 to section 77(1) of the
Representation of the People Act, 1951. [Extra]
 The Explanation provides that "any expenditure incurred or authorised in
connection with the election of a candidate by a political party —shall not be
deemed to be—expenditure in connection with the election incurred or aurhorised
by the candidate". In construing this provision, the court read sections 13A and
139(4B) of the Income-tax Act, 1961 which though exempting the income of
political parties from house property, other sources or voluntary contributions
require them to maintain audited accounts and to file income-tax return for each
assessment year.
 The court held that if a political party is not maintaining audited and authentic
accounts and is not filing return of income, it cannot justifiably plead that it has
incurred or authorised any expenditure in connection with the election of a party
candidate within the meaning of Explanation (1) to section 77(1) and that the said
provision does not give protection to the expenditure which comes from an
unknown or black source.
 In the same context the court noticed that the main income of a political party
comes from contributions from companies which are permitted to make these
contributions under the conditions laid down in section 293A of the Companies
Act, 1956 and are required to disclose them in their profit and loss account.
 When there are different statutes:
 “Where there are different statutes in parimateria though made at different
times, or even expired, and not referring to each other, they shall be taken and
construed together, as one 10 system and as explanatory of each other.” Lord
Mansfield In R v. Loxdale, 1758 97 ER 394 , accepted in India. See JK Steel
v. Union of India, AIR 1970 SC 1173 (para 29).[Extra]
 Allgemeine Gold-Und Silberscheideanstalt v. Customs & Excise Commissioners,
(1980) 2 All ER 138, 141: the Court of Appeal, while holding that smuggled gold
coins constituted ‘goods’ within the meaning of Customs & Excise Act , 1952,
referred to a whole series of Customs Acts starting in 1833, going on to 1876, 1893,
1932 and 1939 and observed that reading through them it was plain that in the
Customs Acts ‘goods’ does include gold and silver coins and bullion for when they
are to be excluded they are excluded expressly by the words of the Acts.
 Statutes which operate in the same field must be construed harmoniously -
unless there are inconsistencies and contradictions in the same subject matter.
Example: Definition of employees under Section 2(e) of the Payment of Gratuity Act,
1972. [Ahmedabad Pvt. Primary Teachers Association v. Administrative Officer,
AIR 2004 SC 1426, p. 1431]
 Erstwhile Definition: ‘2(e) “employee” means any person (other than an
apprentice) employed on wages in any establishment, factory, mine, oilfield,
plantation, port, railway company or shop, to do any skilled, semi-skilled, or
unskilled, manual, supervisory, technical or clerical work, whether the terms
of such employment are express or implied, and whether or not such person is
employed in a managerial or administrative capacity, but does not include any
such person who holds a post under the Central Government or a State
Government and is governed by any other Act or by any rules providing for
payment of gratuity’
 2. the definition of employee in section 2(e) of the Payment of Gratuity Act,
1972 was construed in the light of the definition of employee in other labour
legislations and authoritative pronouncements construing the definition of
employee in them and it was held that teachers cannot be said to be employed
in any skilled, semi-skilled, or unskilled manual, supervisory, technical or
clerical work and, therefore, they do not fall under the definition of employee.
 3. Argument by the Respondent: “He has referred to the definition of
‘employee’ in Section 2(i) of the Minimum Wages Act [(1996) 4 SCC 255],
Section 2(13) of the Payment of Bonus Act and compared those provisions
with definition of ‘employee’ in Section 2(f) of the Provident Funds Act.
Reference is also made to definition of ‘workman’ under Section 2(s) of the
11 Industrial Disputes Act [(1988) 4 SCC 42]. Thus, on comparative reading
of the various definitions in different enactments in the field of labour
legislation, the learned counsel appearing for the respondent argues that a
teacher cannot be said to be employed either for skilled, semi-skilled,
unskilled, manual, supervisory, technical or clerical work. He/She is also not
employed in any managerial or administrative capacity. The teacher is
engaged in imparting education for intellectual or moral development of
students. He/She does not answer any of the above mentioned descriptions in
the definition clause with regard to the nature of work.”
 4. The Court referred to a catena of decisions with respect to other statutes in
parimateria that contain the words “skilled, semi-skilled, or unskilled, manual,
supervisory, technical or clerical work” and concluded that teachers do not fall
in this category. It agreed with the respondents.
 5. Teachers do not answer description of being employees who are ‘skilled,’
‘semi-skilled’ or unskilled.’ These three word use in association with each
other intend to convey that a person who is unskilled is one who is not
‘skilled’ and person who is ‘semi-skilled’ may be one who falls between two
categories meaning he is neither fully skilled nor unskilled. {para 13
onwards}.
  6. Trained or untrained teachers are not ‘skilled,’ ‘semiskilled,’ ‘unskilled,’
‘manual,’ ‘supervisory,’ ‘technical’ or ‘clerical’ employees. They are also not
employed in ‘managerial’ or ‘administrative’ capacity.
 7. Lacunae in the law: read para 26 of the judgment: a. “Our conclusion
should not be misunderstood that teachers although engaged in very noble
profession of educating our young generation should not be given any gratuity
benefit. There are already in several States separate statutes, rules and
regulations granting gratuity benefits to teachers in educational institutions
which are more or less beneficial than the gratuity benefits provided under the
Act. It is for the Legislature to take cognizance of situation of such teachers in
various establishments where gratuity benefits are not available and think of a
separate legislation for them in this regard. That is the subject matter solely of
the Legislature to consider and decide”.
 8. 2007 Amendment Bill wanted to change definition:
 a. 2 (e) “employee” means any persons (other than an apprentice) who
is employed for wages, whether the terms of such employment are
express or implied, in any kind of work, manual or otherwise, in or in
connection with the work of a factory, mine, oilfield, plantation, port,
railway company, shop or other establishment to which this Act
applies, but does not include any such person who holds a post under
the Central Government or a State Government and is governed by any
other Act or by any rules providing for payment of gratuity’.
 b. Resembles the definition in EPF Act, 1952: “employee” means any
person who is employed for wages in any kind of work manual or
otherwise, in or in connections with the work of an establishment and
who gets his wages directly or indirectly from the employer.” Teachers
are covered.
 Jugal Kishore v. State of Maharashtra, AIR 1989 SC 159, p. 162 : 1989 Supp (1)
589- Acts dealing with various socio-economic plans have to be read in a complementary
manner so that they do not create contradictions while operating in the same field. 70. For
example, a tenancy Act which is enacted to ameliorate the condition of tenants and which
confers exclusive jurisdiction on revenue courts to decide whether tenancy right was
acquired by a person has to be read complimentary to a ceiling Act which is passed with
the object of so distributing the agricultural resources of the community as to subserve
the common good and which confers jurisdiction on an authority functioning under that
Act to decide whether a tenancy right was created bona fide or to defeat the provisions of
the Act. 71. A determination by revenue courts under the tenancy Act about the existence
of tenancy right does not exclude the jurisdiction of the ceiling authorities to go into the
question whether the tenancy right was created to defeat the provisions of the Ceiling
Act. 72. [Extra]
B. ASSISTANCE OF EARLIER STATUTES
The use of same words in similar connection in a later statute gives rise to a presumption that
they are intended to convey the same meaning as in the earlier statute.47

On the same logic when words in an earlier statute have received an authoritative exposition by a
superior court, use of same words in similar context in a later Act will give rise to a presumption
that Parliament intends that the same interpretation should also be followed for construction of
those words in the later statute.48

James, L.J. himself reiterated the rule in slightly different words and according to Lord
Macmillan in a better form, in a later case thus:

 “If an Act of Parliament uses the same language which was used in a former Act of
Parliament referring to the same subject, and passed with the same purpose, and
for the same object, the safe and well-known rule of construction is to assume that
the Legislature when using well-known words upon which there have been well-
known decisions uses those words in the sense which the decisions have attached to
them”.51
 This rule is not of ‘absolute obligation’ but must be used ‘as a canon of construction’,
i.e., as a presumption in the circumstances where judicial interpretation was well
settled and well recognised, unless it leads to some absurdity, repugnance or
inconsistency.
Again, it is not to be presumed that Parliament in any subsequent Act dealing with a related but
identical subject matter has taken account of and adopted as correct all judicial pronouncements
as to the meaning of ordinary English words appearing in a statutory instrument made under an
earlier Act. 91. Further, the presumption arising under the rule is not conclusive and will be weak
when the interpretation of the former Act was given by only one of the High Courts and the
matter was not taken to the highest court in appeal. 92 [Extra]

Stare decisis - The law declared by a court has retrospective effect, if not otherwise stated to be
so. 23. The Supreme Court may in rare cases resort to prospective overruling to avoid injustice in
cases, where the earlier view had been acted upon. 24. The doctrine of prospective overruling
ordinarily applies where a statute is declared ultra vires and not in a case where the decree or
order is passed by a court/tribunal in respect whereof it had no jurisdiction. 25. The High Courts
have no power of prospective overruling but they may without applying this doctrine grant
limited relief in exercise of equity jurisdiction. 26. [extra]

Where two statutes dealing with the same subject-matter use different language, it is an
acknowledged rule of construction that one may be looked at as a guide to the construction of the
other. If one uses distinct language, imposing a penalty under certain circumstances and other
does not, it is always an argument that the Legislature did not intend to impose a penalty in the
later, for where they did so intend they plainly said so. 28. [extra]

But when judicial decisions have taken two different views of a statutory provision which is re-
enacted with certain modifications, the change in language may be suggestive of acceptance of
one view by the Legislature and a meaning consistent with that view should be placed on the
provisions re-enacted. 36 [extra]

It is no doubt true that after a statute is amended, the statute thereafter is to be read and construed
with reference to the new provisions and not with reference to provisions that originally existed.
38. [extra]

However, the rule obviously will have no application

 when the decisions on the earlier Act are not consistent;34 or

 b. when they are in fact shown to be erroneous.35
 c. to a purely consolidation Act which affords no opportunity to Parliament of
reconsidering the previous Acts which are consolidatedagain.36
 d. it is not to be presumed that Parliament in any subsequent Act dealing with a related
but identical subject-matter has taken account of and adopted as correct all judicial
pronouncements as to the meaning of ordinary English words appearing in a statutory
instrument made under an earlier Act.37
 e. when the interpretation of the former Act was given by only one of the High Courts
and the matter was not taken to the highest court in appeal.38
Patna cases

1. It must in this connection be kept in view that “the approval of the Legislature of a
particular construction put on the provision of an Act on account of its making no
alteration in those provisions is presumed only when there had been a consistent series of
cases putting a certain construction on certain provisions”,39 and which is acquiesced in
for a sufficiently long time.40

34
Robinson Bros. (Brewers) Ltd. v. Durham Country Assessment Committee. (1938) 2 All ER 79, pp. 87, 88 (HL)
(LORD MACMILLAN)

35
R. V. Chard, (1983) 3 All ER 637, p. 644: (1984) AC 279 : (1983) 3 WLR 835 (1-1L). See also to the same effect
Commissioner of Income-tax v. Bansidhar, (1986) 1 SCC 523, p. 538: AIR 1986 SC 421

36
Haigh v. Charles W. Ireland Ltd., (1973) 3 All ER 1113, pp. 1149, 1150 (HL).

37
Haigh v. Charles W. Ireland Ltd., (1973) 3 All ER 1113, pp. 1149, 1150 (HL).

38
Diamond Sugar Mills Ltd. v. State of U.P., AIR 1961 SC 652. p. 658 : 1961 (3) SCR 242; Kumara Nund v.
Brijmohan Lal Sharma, AIR 1967 SC 808, p. 812:
 2. But when after a provision in an Act has been construed by the Supreme Court the Act is
amended leaving the provision intact and without affecting the construction placed by the
Supreme Court, it may be inferred that the decision of the Supreme Court correctly brings
out the legislative intention.41
3. Apart from any question of acquiescence of the legislature, a long-standing decision
adopting a particular construction which may have been acted upon by persons in the
general conduct of affairs may not be departed from on the doctrine of stare decisis.42
A. But,nothing stops the court from overruling or taking a different view if
permissible – but reluctant to do so. Only if it is plainly wrong and is contrary to
the object of the Statute.43
B. Further, the doctrine does not prevent the Supreme Court from overruling the
High Court's or its own decisions which are contrary to the Constitution as
properly interpreted.44
C. The law declared by a court has retrospective effect, if not otherwise stated to be
so.83 The Supreme Court may in rare cases resort to prospective overruling to
avoid injustice in cases, where the earlier view had been acted upon. 45 The High

39
Purushottamdas Dalmia v. State of W.B., AIR 1961 SC 1589, p. 1595 : 1962 (2) SCR 101. See further Roop
Chand v. State of Punjab, AIR 1963 SC 1503. p. 1507 1963 Supp (1) SCR 539

40
Empress Mills, Nagpur v. Municipal Committee, Wardha, AIR 1958 SC 341, p. 346 : 1958 SCR 1102.

41
Indian Oxygen Ltd. v. Their Workmen, AIR 1972 SC 471, p. 479: (1972) 4 SCC 578

42
Mishri Lal v. Dhirendra Nath, JT 1999 (2) SC 586, pp. 591 to 594 : AIR 1999 SC 2286, pp. 2289, 2290: (1999) 4
SCC 11 (see also cases referred to therein); Janba v. Gopikabai, JT 2000 (4) SC 280, p. 290 : (2000) 4 SCC' 1 : AIR
2000 SC 1771: Saurashtra Cement and Chemical Industries v. Union of India, AIR 2001 SC 8, p. 23; Iridium India
Telecom Ltd. v. Motorola Inc, (2005) 2 SCC 145, p. 160 (paras 40, 41). See further Darshan Singh v. Rampal Singh,
AIR 1991 SC 1654, p. 1664 : 1992 Supp (1) SCC 191; see text and note 26, p. 342.

43
Molar Mal v. Kay Iron Works (P.) Ltd., AIR 2000 SC 1261, p. 1267 : (2000) 4 SCC 285.

44
State of Maharashtra v. Millind, AIR 2001 SC 393, pp. 406, 407 (2001) 1 SCC 4. The Supreme Court in Central
Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673 : AIR 2005 SC 752 pointed out 7
principles which should he kept in view in overruling an earlier binding precedent which were again referred and
applied in Tika Rant v. State of U.P., decided on September 9. 2009: Hitvada September 28, 2009 (unreported);
Raju RamsingVasave v. Mahesh DeoraoBhivapurkar, (2008) 9 SCC 54 paras 18 to 21 : (2008) 9 IT 445 (Parliament
alone can amend the Constitution (Scheduled Tribes) Order, 1950 and it is not even permissible for the court to say
that a tribe, or sub-tribes part or group of any tribe or tribal community is synonymous to one mentioned in the
order. The court can review any earlier wrong decision on this question )

45
Raymond Ltd. v. Madhya Pradesh Electricity Board, AIR 2001 SC 238, p. 239: Somazya Organics (India) Ltd. v.
State of Uttar Pradesh, AIR 2001 SC 1723, pp. 1734, 1735 : (2001) 5 SCC 519; GangaramMoolchandani v. State of
Rajasthan, AIR 2001 SC
 Courts have no power of prospective overruling but they may without applying
this doctrine grant limited relief in exercise of equity jurisdiction.46
4. When judicial decisions have taken two different views of a statutory provision which is
re-enacted with certain modifications, the change in language may be suggestive of
acceptance of one view by the Legislature and a meaning consistent with that view
should be placed on the provisions reenacted. 47 When the Legislature makes suitable
amendments to give effect to a prior judicial decision, it should be inferred that the
decision correctly interpreted the law before the amendment.48

C. ASSISTANCE OF LATER STATUTES

Enacting a new act for a previous one - It is within the authority of the Legislature to amend an
earlier Act or to declare its meaning by enacting a new Act and the Legislature is even competent
to so declare a meaning that the “declaration offended the plain language of the earlier Act.”
{Ormond Investment Co. v. Betts, (1928) AC 143} In such cases, the later statute operates
directly by its own force and not merely as an aid to construction of the earlier statute – think of
Amending Statute.

As has been observed by S.K. Das, J.: “Legislation founded on a mistaken or erroneous
assumption has not the effect of making that the law which the Legislature had erroneously
assumed to be so.”32 The court will disregard such a belief or assumption and also the provision
inserted in that belief or assumption. [Dharangdhara Chemical Works v. Dharangdhara
Municipality, (1985) 4 SCC 92]

"The beliefs or assumptions of those who frame Acts of Parliament cannot make the law" and a
mere erroneous assumption exhibited in a statute as to the state of the existing law is ineffective
to express an "intention" to change the law.49 If by such a statute the idea is to change the law, it
will be said that "the Legislature has plainly missed fire."

 PV Murali v Andhra Pradesh - In this case, Explanation II added to section 2(22) of the
Andhra Pradesh Charitable and Hindu Religious Institution and Endowments Act, 1987
46
State of H.P. v. Nurpur Private Bus Operators, AIR 1999 SC 3880 : (1999) 9 SCC 559. P.V. George v. State of
Kerala, supra, para 14. See further Arvind P. Datar, Prospective overruling: Correct Doctrine Incorrect Application'
(2008) 7 SCC J-41 to J-52.

47
Felix v. Thomas, (1966) 3 All ER 21, p. 27 (PC

48
Bhinuiji Shankar v. DundappaVithappa, AIR 1966 SC 166, p. 169: 1966 (1) SCR 145

49
IRC v. Dowdall O'Mahoney& Co., (1952) 1 All ER 531, p. 544 : 1952 AC 401 (HL); Kirkness v. John Hudson &
Co., supra, p. 352; Birmingham City Corporation v. West Midland Baptist, (1969) 3 All ER 172, pp. 179, 188, 190
(HL); ITO II, Kanpur v. Mani Ram, AIR 1969 SC 543, p. 548 : (1969) 1 SCR 724; Reference under section 48A of
the Criminal Appeal (Northern Ireland) Act, 1968, (1976) 2 All ER 937, p. 951 (HL).
 was held to be ineffective as it proceeded on the wrong assumption of the legal position
that even after grant of pattas of land of a religious institution under the Andhra Pradesh
Inams (Abolition and Conversion into Ryotwari) Act, 1956, the property so granted did
not become the personal property of the grantees but continued to be a religious
endowment. Further, a legislation declaring certain non-existent facts as existing and
proceeding on that basis may also be held to be ineffective. 63[Extra]
But when when an earlier Act is truly ambiguous - a later Act may in certain circumstances
serve as a parliamentary exposition of the former.38 The rule of construction applicable in such
cases can be best stated in the words of Lord Sterndale:

 “I think, it is clearly established—that subsequent legislation on the same subject may be

looked to in order to see what is the proper construction to be put upon an earlier Act
where that earlier Act is ambiguous. I quite agree that subsequent legislation, if it
proceeds upon an erroneous construction of previous legislation, cannot alter that
previous legislation, but if there be any ambiguity in the earlier legislation then the
subsequent legislation may fix the proper interpretation which is to be put upon the
earlier.”39
 In Anand Bros Pvt Ltd v UOI, 72. the issue before the Supreme Court was whether a
nonspeaking award under the Arbitration Act, 1940, had been correctly set aside on the
ground that the arbitrator had not recorded "findings" as was required under the contract
between the parties. Relying on its earlier decisions in Ram Kishna Ram Nath v Janpad
Sabha, 73. and Ghanshyam Dass v Dominion of India, 74. the Supreme Court held that it
is one of well-known canons of interpretation of statutes that when an earlier enactment
is truly ambiguous in that it is open to diverse meanings, the later enactment may in
certain circumstances serve as the parliamentary exposition of the former. Hence,
the court referred to the provisions of the Arbitration and Conciliation Act, 1996, which
repealed the Arbitration Act, 1940, to hold that the obligation to record "findings" must
be understood not only in light of the law laid down by the court but also the statutory
prescription under the 1996 Act which now mandates recording of reasons by the
arbitrator. [Extra]
It has further been said that it is clearly wrong to construe an unamended section of the earlier
Act in the light of the amendment made by the later Act in other parts of the earlier Act unless
the unamended section is ambiguous, i.e., "fairly and equally open to diverse meanings". 70.

CASES

Ammini v. State of Kerala, AIR 1998 SC 260 , p. 265

S. 293(4) Criminal Procedure Code , before its amendment used the expression ‘Director’ only.

2. Section 293: 293. Reports of certain Government scientific experts.

(1) Any document purporting to be a report under the hand of a Government scientific expert to
whom this section applies, upon any matter or thing duly submitted to him for examination or
analysis and report in the course of any proceeding under this Code, may be used as evidence in
any inquiry, trial or other proceeding under this Code. …

(4) This section applies to the following Government scientific experts, namely:- (a) any
Chemical Examiner or Assistant Chemical Examiner to Government; … (e) the Director 1 ,
Deputy Director or Assistant Director] of a Central Forensic Science Laboratory or a State
Forensic Science Laboratory; (f) the Serologist to the Government

After amendment Deputy Director and Assistant Director were expressly included with the
Director.

The Supreme Court after referring to this change held that ‘Joint Director’ who was higher in
rank to Deputy Director and Assistant Director must be deemed to be included in ‘Director’
otherwise he would also have been expressly included by the amendment and that this
construction was also applicable to the word ‘Director’ before the section was amended.

It would be unreasonable to hold that a report signed by Joint Director is not admissible in
evidence though a report signed by Deputy Director or Assistant Director is now admissible.

HariprasadShivshankar Shukla v. A.D. Divelkar, AIR 1957 SC 121, pp. 130, 131 : ' 1957
SCR 121:[extra]

In deciding that the word "retrenchment" in section 2(oo) and section 25-F of the Industrial
Disputes Act, 1947, has no application where the services of all workmen have been terminated
by the employer on a real and bona fide closure of business or on the business or undertaking
being taken over by another employer, the Supreme Court rejected the argument that section 25-
FF inserted by the Industrial Disputes (Amendment) Act, (41 of 1956) which proceeded on the
assumption that such termination may come within the expression "retrenchment" is a
parliamentary exposition of the meaning of the said expression. 78.

It was pointed out that the said section 25-FF was inserted to supersede the effect of certain
judicial decisions which according to the Supreme Court were erroneous and the intention in
enacting that section was not to give a parliamentary exposition of the existing law. 79. In the
same case, the Supreme Court referred to the Industrial Disputes (Amendment and
Miscellaneous Provisions) Act (No. 36 of 1956) and after pointing out that the said Act clearly
proceeded on a distinction between closure of business and retrenchment, used it as a
parliamentary exposition of the meaning of "retrenchment" in preference to the Amending Act
41 of 1958 which inserted section 25-FF. 80. However, it is interesting to see that the Parliament
in its turn did not abide by this decision of the Supreme Court and enacted Act 18 of 1957 by
which the then existing section 25-FF was replaced by new provisions in sections 25-FF and 25-
FFF expressly providing for compensation to workmen in case of transfer and closing down of
undertakings. 81.

D. INCORPORATION OF EARLIER ACT INTO LATER: REFERENCE OF EARLIER ACT INTO

LATER.

F. It is done for the sake of convenience in order to avoid verbatim reproduction of the
provisions of the earlier Act into the later.50
G. When an earlier Act or certain of its provisions are incorporated by reference into a later Act,
the provisions so incorporated become part and parcel of the later Act as if they had been
“bodily transposed into it”.51
H. The effect of incorporation is admirably stated by Lord Esher, M.R.: a. “If a subsequent Act
brings into itself by reference some of the clauses of a former Act, the legal effect of that, as
has often been held, is to write those sections into the new Act as if they had been actually
written in it with the pen, or printed in it.”52
I. 4. The result is to constitute the later Act along with the incorporated provisions of the earlier
Act, an independent legislation which is not modified or repealed by a modification or repeal
of the earlier Act.53
J. 5. As observed by Brett, J.: “Where a statute is incorporated, by reference, into a second
statute, the repeal of the first statute by a third does not affect the second.”58 a. The rule that
the repeal or amendment of the Act which is incorporated by reference in a later Act is not
applicable for purposes of the later Act is subject to qualifications and exceptions.54

50
Mary Roy v. State of Kerala (1986) 2 SCC 209, p. 216 : AIR 1986 SC 101; Nagu Improvement Trust v. Amrik ,
Singh, AIR 2002 SC 3499, p. 3512 : (2002) 7 1 6 p SCC 57.

51
Ramsarup v. Munshi, AIR 1963 SC 553, p. 558 : 1963 (3) SCR 858; Nagpur Improvement Trust v. Amrik Singh,
AIR 2002 SC 3499, p. 3512 : (2002) 7 SCC 657.

52
Re, Wood's Estate, Ex parte. Works and Buildings Commrs., (1886) 31 Ch D 607, p. 615; Ram Kripal Bhagat v.
State of Bihar, AIR 1970 SC 951, p. 957 : (1969) 3 SCC 471; Bolani Ores Ltd. v. State of Orissa, AIR 1975 SC 17,
p. 29 : 1975 (2) SCR 138 (1974) 2 SCC 777; Mahindra and Mahindra Ltd. v. Union of India, AIR 1979 SC 798, pp.
810, 811 : (1979) 2 SCC 529; OnkarlalNandlal v. State of Rajasthan, (1985) 4 SCC 404, p. 415 : AIR 1986 SC
2146; Surana Steels Pvt. Ltd. v. Dy. Co 3 of mmissioner of Income-tax, AIR 1999 SC 1455, p. 1459 : (1999) 4 SCC
306 (p. 23 7th edition of this book is approvingly quoted

53
Narottamdas v. State of M.P., AIR 1964 SC 1667, p. 1670 : (1964) 7 SCR 820; Bolani Ores Ltd. v. State of Orissa,
supra; Mahindra and Mahindra Ltd. v. Union of India, supra; Nagpur Improvement Trust v. Amrik Singh, supra;
Sneh Enterprises V. Comm?. of Customs, (2006) 7 SCC 714 (pare 13) : (2006) 8 JT 58

54
Clarke v. Bradlaugh, (1881) 8 QBD 63, p. 69; referred to in Ramsarup v. Munshi, AIR 1963 SC 553, p. 558 :
(1963) 3 SCR 858; Collector of Customs, Madras v. NathelalSampathu Chetty, AIR 1962 SC 316, p. 334: (1962) 3
CR 70. Sm furtherJethanandBetab v. State of Delhi, AIR 1960 SC 89, pp. 91, S 92 : (1960) 1 SCR 755; Bolani Ores
Ltd. v. State of Orissa, supra; Mahindra and Mahind
K. 6. Ordinarily if an Act is incorporated in a later Act, the intention is to incorporate the earlier
Act, with all the amendments made in it up to the date of incorporation.55
L. A distinction is in this context drawn between incorporation and mere reference of an earlier
Act into a later Act.56 Further, a distinction is also drawn when what is referred to is not an
earlier Act or any provision from it but law on a subject in general.Here is, however, no
controversy on the point that when any Act or rules are adopted in any later Act or rules,
such adoption normally whether by incorporation or mere reference takes in all the
amendments in the earlier Act or rules till the date of adoption. 93. [extra]
M. In case of legislation by incorporation as the incorporated provisions become part and parcel
of a fresh statute, the constitutional validity of such a statute including the provisions so
incorporated is judged with reference to the powers of the Legislature enacting the fresh
statute and not with reference to the powers of the Legislature enacting the original
legislation. The two statutes remain different and distinct and each is to be judged with
reference to its own source. [Extra]Book page no. 322
CASES

 Bolani Ores Ltd. v. State of Orissa, AIR 1975 SC 17 : (1974) 2 SCC 777:[Extra]Section
2(c) as substituted in 1943 in the Bihar and Orissa Motor Vehicles Taxation Act, 1930
defines "motor vehicle" to have the same meaning as in the Motor Vehicles Act, 1939.
Construing section 2(c) of the Taxation Act it was held that the definition of "Motor Vehicle"
in the Motor Vehicles Act as existing in 1943 got incorporated in the Taxation Act and the
amendment of the definition of "Motor Vehicle" in the Motor Vehicles Act in 1956 was not
applicable for purposes of the Taxation Act. 1.57
 Mahindra and Mahindra Ltd. v. Union of India, AIR 1979 SC 798, 811.
 Section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 provides for
an appeal to the Supreme Court against the orders of the Monopolies and Restrictive
Trade Practices Commission on ‘one or more of the grounds specified in section 100
of the Code of Civil Procedure, 1908 (Jurisdiction of HC in Second Appeal) .’
 2. Section 100 of the Code of Civil Procedure was substituted by a new section in
1976 which narrowed the grounds of appeal under that section. a. Earlier, there were
three grounds (Contrary to Law), Now only one ground (Substantial Qs of Law)
 3. In construing section 55 of the Monopolies and Restrictive Trade Practices Act the
Supreme Court held that section 100 of the Code as it existed in 1969 was

55
State of Maharashtra v. MadhavraoDamodar Patil. AIR 1968 SC 1395. p. 1400 : 1968 (3) SCR 712

56
Page 226 IOS

57
Bolani Ores Ltd. v. State of Orissa, AIR 1975 SC 17 : (1974) 2 SCC 777
 incorporated in section 55 and the substitution of new section 100 in the Code
abridging the grounds of appeal had no effect on the appeal under section 55.
 4. The respondents leaned heavily on section 8(1) of the General Clauses Act, 1897
which provides:
 5. General Clauses Act, 1897: "8(1) Where this Act, or any Central Act or Regulation
made after the commencement of this Act, repeals and re-enacts, with or without
modification, any provision of a former enactment, then references in any other
enactment or in any instrument to the provision so repealed shall, unless a different
intention appears, be construed as references to the provision so re-enacted."
o a. Respondent contended that the substitution of the new section 100
amounted to repeal and re-enactment of the former section 100 and, therefore,
on an application of the rule of interpretation enacted in section 8(1), the
reference in section 55 to section 100 must be construed as reference to the
new section 100 and the appeal could be maintained only on the ground
specified in the new section 100, that is, on a substantial question of law.
o b. Court: We do not think this contention is well founded. It ignores the
distinction between a mere reference to or citation of one statute in another
and an incorporation which in effect means bodily lefting a provision of one
enactment and making it a part of another.
 i. Where there is mere reference to or citation of one enactment in
another without incorporation, section 8(1) applies and the repeal and
re-enactment of the provision referred to or cited has the effect set out
in that section and the reference to the provision repealed is required to
be construed as reference to the provision as re-enacted. Such was the
case in the Collector of Customs, Madras v. NathellaSampathu Chetty
&Anr. and the New Central Jute Mills Co. Ltd. v. The Assistant
Collector of Central Excise, Allahabad &Ors. But where a provision of
one statute is incorporated in another, the repeal or amendment of the
former does not affect the latter. The effect of incorporation is as if the
provision were written out in the incorporating statute and were a part
of it.
 In re Hindu Women's Right to Properly Act, AIR 1941 FC 72 : 1941 FCR 12:As a
corollary of the above principle a limited construction adopted of the provisions of an Act
by restricting general words to save it from becoming unconstitutional will not apply
when the same Act is adopted by incorporation by another Legislature having wider
legislative competence on the subject. Thus, though the word "property" in the Hindu
Women's Right to Property Act, 1937 which was passed by the Central Legislature was
construed not to include agricultural land as the Central Legislature had then no
legislative competence to legislate on the subject of succession to agricultural lands; 58.

58
In re Hindu Women's Right to Properly Act, AIR 1941 FC 72 : 1941 FCR 12. See for
 but when the same Act was adopted by incorporation by the Hyderabad Legislature by
the Hyderabad (Application of Central Acts) Act, 1952, the word "property" was
construed to include agricultural lands as the Hyderabad Legislature had legislative
power to legislate in respect of agricultural lands. 59 An amending Act passed in 1954
which expressly applied the Hyderabad Act to agricultural lands was held to have no
effect on the construction of the Act before its amendment as it proceeded upon its wrong
construction. [Extra]
 Rajputana Mining Agencies v. Union of India, AIR 1961 SC 56: must, however, be
remembered that when a later Act extends the area of operation of an earlier Act by
making suitable amendments in the earlier Act itself, there is "neither precedent nor
warrant for the assumption" that the earlier Act gets incorporated in the later, rather the
amendments introduced by the later Act get incorporated in the earlier Act and any
further amendment of the earlier Act is operative both in respect of its original area of
operation as also in respect of its extended operation to new area brought about by the
later Act. 7
 Bajya v. Gopikabai (Smt.), AIR 1978 SC 793:Again, a statute may instead of referring
to a particular previous statute or to any specific provision therein refer to the law on the
subject generally. In such cases, the reference is construed to mean that the law is as it
reads therafter including amendments subsequent to the time of adoption. 8. - This
principle was applied in construing section 151 of the Madhya Pradesh Land Revenue
Code, 1954 which provides that "subject to his personal law, the interest of a tenure
holder shall on his death pass by inheritance, survivorship or bequest, as the case may
be". It was held that this was a case where the statute incorporated by reference the law
on the subject generally, and therefore, the expression "personal law" will not be limited
to the personal law as it stood when the Code was enacted in 1954 but will also embrace
all subsequent statutes, e.g. the Hindu Succession Act, 1956, which, from time to time,
have amended the personal law. 9
INCORPORATION V. REFERENCE:

A distinction has also been drawn between a mere reference or citation of one statute into
another and incorporation. When an earlier Act or certain of its provisions are incorporated by
reference into a later Act, the provisions so incorporated become part and parcel of the later Act
as if they had been "bodily transposed into it".60

The effect of incorporation is admirably stated by Lord Esher, MR: If a subsequent Act brings
into itself by reference some of the clauses of a former Act, the legal effect of that, as has often

59
Vaijnath'v. Guramma, AIR 1999 SC 555 : (1999) 1 SCC 292

60
Rajasthan State Road Transport Corporation Jaipur v. Poonam Pahwa, AIR 1997 SC 2951, p. 2957: 1997 (6) SCC
100. Also see text and note 80, supr
been held, is to write those sections into the new Act as if they had been actually written in it
with the pen, or printed in it.61

In the former case a modification, repeal or re-enactment of the statute that is referred will also
have effect for the statute in which it is referred; but in the latter case any change in the
incorporated statute by way of amendment or repeal has no repercussion on the incorporating
statute.85 It is a question of construction whether a particular former statute is merely referred to
or cited in a later statute or is wholly or partially incorporated therein.62

The result is to constitute the later Act along with the incorporated provisions of the earlier Act,
an independent legislation which is not modified or repealed by a modification or repeal of the
earlier Act.63

Ordinarily if an Act is incorporated in a later Act, the intention is to incorporate the earlier Act,
with all the amendments made in it up to the date of incorporation. 64 There is, however, no
controversy on the point that when any Act or rules are adopted in any later Act or rules, such
adoption normally whether by incorporation or mere reference takes in all the amendments in the
earlier Act or rules till the date of adoption.65

A distinction has also been drawn between a mere reference or citation of one statute into
another and incorporation. In the former case a modification, repeal or re-enactment of the
statute that is referred will also have effect for the statute in which it is referred; but in the latter
61
Re, Wood's Estate, Ex parte. Works and Buildings Commrs., (1886) 31 Ch D 607, p. 615; Ram Kripal Bhagat v.
State of Bihar, AIR 1970 SC 951, p. 957 : (1969) 3 SCC 471; Bolani Ores Ltd. v. State of Orissa, AIR 1975 SC 17,
p. 29 : 1975 (2) SCR 138 (1974) 2 SCC 777; Mahindra and Mahindra Ltd. v. Union of India, AIR 1979 SC 798, pp.
810, 811 : (1979) 2 SCC 529; OnkarlalNandlal v. State of Rajasthan, (1985) 4 SCC 404, p. 415 : AIR 1986 SC
2146; Surana Steels Pvt. Ltd. v. Dy. Co 3 of mmissioner of Income-tax, AIR 1999 SC 1455, p. 1459 :

62
Collector of Customs, Madras v. NathelalSampathu Chetty, AIR 1962 SC 316, p. 336: 1962 (3) SCR 786 (In this
case it was held that there was no incorporation of the Sea Customs Act, 1878 in section 23-A of the Foreign
Exchange Regulation Act, 1947); Ram Kripal Bhagat v. State of Bihar, AIR 1970 SC 951, p. 955 : 1969 (3) SCC
471 (Section 19 of the Sea Customs Act, 1878, is not incorporated in section 3(2) of the Imports and Exports
Control Act, 1947); New Central Jute Mills Co. Ltd. v. Assistant Collector of Central Excise, AIR 1971 SC 451, p.
457 : 1970 (2) SCC 820. (Section 12 of the Central Excises and Salt Act, 1944, does not incorporate the provisions
of the Sea Customs Act, 1878, but only refers to them, and therefore, after its repeal, the provisions of Custoins Act,
1962 can be read in their place); Western Coal Fields Ltd. v. Spl. Area Development Authority, AIR 1982 SC 697,
p. 703 : (1982) 1 SCC 125;

63
Narottamdas v. State of M.P., AIR 1964 SC 1667, p. 1670 : (1964) 7 SCR 820; Bolani Ores Ltd. v. State of Orissa,
supra; Mahindra and Mahindra Ltd. v. Union of India, supra; Nagpur Improvement Trust v. Amrik Singh, supra;
Sneh Enterprises V. Comm?. of Customs, (2006) 7 SCC 714 (pare 13) : (2006) 8 JT 587

64
State of Maharashtra v. MadhavraoDamodar Patil. AIR 1968 SC 1395. p. 1400 : 1968 (3) SCR 712

65
Rajasthan State Road Transport Corporation Jaipur v. Poonam Pahwa, AIR 1997 SC 2951, p. 2957: 1997 (6) SCC
100. Also see text and note 80, supra.
case any change in the incorporated statute by way of amendment or repeal has no repercussion
on the incorporating statute.66Ultimately, it is a matter of probe into legislative intention
and/or taking an insight into the working of the enactment if one or the other view is
adopted. The doctrinaire approach to ascertain whether the legislation is by incorporation
or reference is, on ultimate analysis, directed towards that end.

IBA Guidelines on Conduct of Party Representation in International Arbitration:

Definitions Clause ‘Guidelines’ mean these IBA Guidelines on Party Representation in
International Arbitration, as they may be revised or amended from time to time; In case of
legislation by incorporation as the incorporated provisions become part and parcel of a fresh
statute, the constitutional validity of such a statute including the provisions so incorporated is
judged with reference to the powers of the Legislature enacting the fresh statute and not with
reference to the powers of the Legislature enacting the original legislation. The two statutes
remain different and distinct and each is to be judged with reference to its own source. Example:
Statutes A was passed by the State Legislature. Statute B was passed by the Parliament. Statute B
incorporated provisions of Statute A. Later, Statute A was held to be invalid due to want of
legislative competence. But no such infirmity with Statute B. Is Statute B invalid? No. Because
of the principle above.

Case:

1. [Maharashtra State Road Transport Corporation v. State of Maharashtra, (2003) 4

SCC 200, 208.]
a. “The distinction between incorporation by reference and adoption of provisions by mere
reference or citation is not too easy to highlight. The distinction is one of difference in degree
and is often blurred. The fact that no clear-cut guidelines or distinguishing features have been
spelt out to ascertain whether it belongs to one or the other category makes the task of
identification difficult. The semantics associated with interpretation play their role to a limited
extent. Ultimately, it is a matter of probe into legislative intention and/or taking an insight into
the working of the enactment if one or the other view is adopted.The doctrinaire approach to
ascertain whether the legislation is by incorporation or reference is, on ultimate analysis, directed
towards that end. The distinction often pales into insignificance with the exceptions enveloping
the main rule.”

b. Did the Legislature intend to bind itself to any future changes that may be made to the earlier
enactment from which the provisions are borrowed? OR whether the Legislature had frozen the

66
Collector of Customs, Madras v. NathelalSampathu Chetty, AIR 1962 SC 316, p. 336: 1962 (3) SCR 786 (In this
case it was held that there was no incorporation of the Sea Customs Act, 1878 in section 23-A of the Foreign
Exchange Regulation Act, 1947); Ram Kripal Bhagat v. State of Bihar, AIR 1970 SC 951, p. 955 : 1969 (3) SCC
471 (Section 19 of the Sea Customs Act, 1878, is not incorporated in section 3(2) of the Imports and Exports
Control Act, 1947); N
provisions of earlier Act prevailing on the date of enactment of later statute so as to insulate it
from the impact of subsequent modifications?

c. The language, the scheme and purpose of the Act no doubt assume significance while finding
answer to this question.

d. One indicia to spell out whether it is a case of incorporation or reference has been furnished
by the decision of the Privy Council in Secretary of State Vs. Hindustan Coop. Insurance Society
Ltd, (Supra), that is, whether the modifications that are made to the provisions of the earlier
Act while broadly adopting the same are "numerous and substantial". What that
observation means is if they are "numerous and substantial", prima facie it manifests an intention
on the part of the Legislature not to go beyond the provisions of the borrowed Act as they existed
at the time of enactment of the later Act except reading them subject to the modifications made.

Mahindra and Mahindra Ltd. v. Union of India, AIR 1979 SC 798, p. 811: (1979) 2 SCC
529:

Section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 provides for an appeal to
the Supreme Court against the orders of the Monopolies and Restrictive Trade Practices
Commission on "one or more of the grounds specified in section 100 of the Code of Civil
Procedure, 1908." Section 100 of the Code of Civil Procedure was substituted by a new section
in 1976 which narrowed the grounds of appeal under that section. In construing section 55 of the
MRTP Act the Supreme Court held that section 100 of the Code as it existed in 1969 was
incorporated in section 55 and the substitution of new section 100 in the Code abridging the
grounds of appeal had no effect on the appeal under section 55. 2.

Bharat Coop. Bank (Mumbai) Ltd. v. Coop. Bank Employees Union, (2007) 4 SCC 685 :
(2007) 4 JT 573 : (2007) 2 LLI 825 : AIR 2007 SC 2320. [Extra]

The Industrial Disputes Act, 1947 came into force from 1-4-1947. By the Amendment Act 54 of
1949, section 2(bb) was inserted in the I.D. Act defining ‘banking company’ to mean a banking
company as defined in section 5 of the Banking Companies Act, 1949 having branches or other
establishments in more than one State and to include certain enumerated banks. By the same
Amendment Act the definition of ‘appropriate government’ was amended whereby in relation to
any industrial dispute concerning a banking companythe Central Government was declared to be
the appropriate government.

The definition of ‘banking company’ was then limited to companies registered under the
Companies Act and did not include co-operative banks. However, by Act 23 of 1965 the
provisions of the Banking Regulation Act were made applicable to co-operative banks. The
question before the Supreme Court was whether after 1965 the definition of banking company in
the I.D. Act should be read as inclusive of cooperative banks. It was held that the definition of
banking company as inserted in the I.D. Act from Banking Companies Act was incorporated
therein and any further amendments to include co-operative banks in the definition could not be
read in the I.D. Act and the appropriate government for the co-operative banks was the State
Government and not the Central Government.71 IBA Guidelines on Conduct of Party
Representation in International Arbitration: Definitions

Case 3: Rajputana Mining Agencies v. Union of India, AIR 1961 SC 56]

It must, however, be remembered that when a later Act extends the area of operation of an earlier
Act by making suitable amendments in the earlier Act itself, there is “neither precedent nor
warrant for the assumption” that the earlier Act gets incorporated in the later, rather the
amendments introduced by the later Act get incorporated in the earlier Act and any further
amendment of the earlier Act is operative both in respect of its original area of operation as also
in respect of its extended operation to new area brought about by the later Act. [Rajputana
Mining Agencies v. Union of India, AIR 1961 SC 56]

Case 4: Bajya v. Gopikabai (Smt.), AIR 1978 SC 793

Again, a statute may instead of referring to a particular previous statute or to any specific
provision therein refer to the law on the subject generally. In such cases, the reference is
construed to mean that the law is as it reads therafter including amendments subsequent to the
time of adoption.

a. This principle was applied in construing section 151 of the Madhya Pradesh Land
Revenue Code, 1954 which provides that ‘subject to his personal law, the interest of a
tenure holder shall on his death pass by inheritance, survivorship or bequest, as the case
may be’.

b. Held, that this was a case where the statute incorporated by reference the law on the
subject generally and therefore, the expression ‘personal law’ will not be limited to the
personal law as it stood when the Code was enacted in 1954 but will also embrace all
subsequent statutes, 17 e.g. the Hindu Succession Act, 1956 , which, from time to time,
have amended the personal law.

REPEAL OR AMENDMENT –

It has further been observed that the rule that the repeal or amendment of an Act which is
incorporated in a later Act has no effect on the later Act or on the provisions incorporated therein
is subject to four exceptions:

o where the later Act and the earlier Act are supplemental to each other,

o where the two Acts are in parimateria,

o where the amendment of the earlier Act if not imported in the later Act would render it wholly
unworkable, and
o where the amendment of the earlier Act either expressly or by necessary intendment also
applies to the later Act.

CASE

[Madhya Pradesh v. M.V. Narsimhan, AIR 1975 SC 1835]

The Supreme Court laid down these exceptions in State of Madhya Pradesh v. M.V. Narsimhan,
AIR 1975 SC 1835 while considering the question whether the amendment of section 21 of the
Penal Code by the Criminal Law (Amendment) Act , 1958 was also applicable for purposes of
the Prevention of Corruption Act , 1947 which by section 2 incorporates the definition of ‘Public
Servant’ as contained in section 21 of the Penal Code . It was held that the two Acts were
supplemental to each other, and therefore, the amendment Act was applicable to amend the
definition of ‘Public Servant’ incorporated in the Prevention of Corruption Act.

Even though only particular sections of an earlier Act are incorporated into later, in construing
the incorporated sections it may be at times necessary and permissible to refer to other parts of
the earlier statute which are not incorporated.

[Surana Steels Pvt Ltd v. Dy CIT, AIR 1999 SC 1455, 1459]

“When a single section of an Act of Parliament is introduced into another Act, I think, it must be
read in the sense it bore in the original Act from which it was taken, and that consequently it is
perfectly legitimate to refer to all the rest of that Act in order to ascertain what the section meant,
though those other sections are not incorporated in the new Act …. I do not mean that if there
was in the original Act a section not incorporated, which comes by way of a proviso or exception
on that which was incorporated, that should be referred to; but all others, including the
interpretation clause, if there be one, may be referred to.”

[Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd., (2007) 6 SCC 236]

The Banking Regulation Act, 1949 (BR Act) defines ‘banking company’ in section 5(c), ‘co-
operative bank’ in section 5(cci) and ‘primary co-operative bank’ in section 5(ccv). In the
Recovery of Debts Due to Banks and Financial Institutions Act, 1993 , (RDB Act ) section 2(e)
defines ‘banking company’ to have the same meaning as in section 5(c) of the BR Act. As the
intention of the RDB Act was clear not to apply its provisions to co-operative banks, the
meaning of ‘banking company’ in section 2(e) was limited to a banking company as defined in
section 5(c) of the BR Act and its meaning was not extended to cover co-operative banks by
referring to sections 5(cci) and 5(ccv)of the BR Act which are not incorporated in the definition
of banking company in the RDB Act.

D. CODIFYING AND CONSOLIDATING STATUTES

CODIFYING
 1. The purpose of a codifying statute is to present an orderly and authoritative statement of
the leading rules of law on a given subject, whether those rules are to be found in statute
law or common law.
2. It has been said that a codifying Act is presumed not to alter the law unless a contrary
intention appears.67 But the presumption will be of help only after the language of the
statute is first construed according to normal canons of construction and is found to be of
doubtful import.[extra] page 234
3. Usually mentioned in preamble, if any or in the long title.
4. Lord Herschell: Bank of England v. VaglianoBrothers,(1891) AC 107 , pp. 144, 145
a. a. “I think the proper course is, in the first instance, to examine the language of
the statute and to ask what is its natural meaning, uninfluenced by any
considerations derived from the previous state of the law, and not to start with
inquiring how the law previously stood, and then, assuming that it was probably
intended to leave it unaltered, to see if the words of the enactment will bear an
interpretation in conformity with this view. If a statute intended to embody in a
Code a particular branch of the law is to be treated in this fashion, it appears to me
that its utility will be almost entirely destroyed and the very object with which it
was enacted will be frustrated. The purpose of such a statute surely was that on
any point specifically dealt with by it, the law should be ascertained by
interpreting the language used, instead of, as before, by roaming over a vast
number of authorities in order to discover what the law was, extracting it by a
minute critical examination of the prior decisions—.
b. If, for example, a provision be of doubtful import, such resort to previous law or
other law would be perfectly legitimate. Or, again if in a Code—words be found
which have previously acquired a technical meaning, or been used in a sense other
than their ordinary one—the same interpretation might well be put upon them in
the Code. I give these as examples merely. They, of course, do not exhaust the
category.
5. Exhaustive on matters it deals with a. Limitation Act, CPC and CrPC.
Thus, a question of res judicata in relation to a suit has to be decided solely on terms of
section 11 of the CPC, 1908 and not on general principles of res judicata. 61. A matter
concerning the admission and disposal of criminal appeals has to be dealt with in terms of
Code of Criminal Procedure and not outside those provisions; 62. and a court has no
power to grant exemption from the bar of limitation except in accordance with the
provisions contained in the Indian Limitation Act. 63 [extra]

CONSOLIDATING STATUTES

67
Board of Trustees of the Port of Bombay v. Sriyanesh Knitters, AIR 1999 SC 2947, p. 2952: (1999) 7 SCC 114.
The purpose of a consolidating statute is to present the whole body of statutory law on a subject
in complete form, repealing the former statute.68 In case of purely consolidating statutes the
presumption is that such a statute is not intended to alter the law, 69 but this prima facie view has
to yield to plain words to the contrary.70

OBJECT - “The very object of consolidation”, said Lord Watson, “is to collect the statutory law
bearing upon a particular subject, and to bring it down to date, in order that it may form a useful
Code applicable to the circumstances existing at the time when the consolidating Act is
passed”.52

The process of consolidation involves co-ordination and simiplification of former enactments

resulting in modernisation of language with a view to make it applicable to changed
circumstances.71 It is not permissible to construe a section in a consolidating Act in such cases
with reference to circumstances existing at the time when it was first enacted in a former Act.72

Indeed the question of construction of a section in a consolidating Act may for this reason be
really a question of construction of an earlier Act in which that section first appeared, 72. and it
may be necessary to refer to the various Acts in the series as also to the common law existing at
the time when the earliest Act was enacted.73

AS AN AMENDING ACT - A consolidating Act may further be an amending Act. This additional
purpose is usually indicated in the preamble or in the long title by use of the words ‘An Act to
consolidate and amend’. Indian Contract Act, 1872 which defines and amends certain parts of the
law relating to contracts;62

Difference between Consolidating statutes and other statutes for purposes of interpretation

[Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & ETIO, (2007) 5 SCC
447]

68
Mumbai Kamgar Sabha. Bombay v. AbdulibhaiFaizullabhai, AIR 1976 SC 1455 : 1976 (3) SCC 832

69
IRC v. Hinchy, (1960) 1 All ER 505, p. 512 : 1960 AC 748 (HL); Beswick v. Beswick, (1967) 2 All ER 1197, pp.
1202, 1206, 1209, 1223 OIL; hector Dir of Public Prosecutions v. Schildkamp, (1969) 3 All ER 1640, pp. 1641, 45,
164

70
Grey v. IRC, (1959) 3 All ER 603, p. 606 (HL); Beswick v. Beswick, (1967) 2 All ER 1197, pp. 1202, 1206,
1209, 1223 (HL)

71
Administrator General of Bengal v. PremlalMullick, ILR 22 Cal 788, p. 798 (PC).

72
Administrator General of Bengal v. PremlalMullick, supra, p. 798

73
AIR 1962 SC 1073.
Recent decisions have emphasised that a consolidation Act should be interpreted according to
normal canons of construction and recourse to repealed enactments can be taken only to solve
any ambiguity, for the process of consolidation would lose much of its point if, whenever a
question as to construction of a consolidating Act arose, reference had to be made to the statutes
which it has consolidated and repealed.

EFFECT OF USAGE AND PRACTISE: CONTEMPORANEA EXPOSITIO

Usage or practice developed under a statute is indicative of the meaning ascribed to its words by
contemporary opinion and in case of an ancient statute is an admissible external aid to its
construction.

A uniform notorious practice continued under an old statute and inaction of the Legislature to
amend the same are important factors to show that the practice so followed was based on correct
understanding of the law

As stated by Martin, B.: “In construing old statutes it has been usual to pay great regard to the
construction put upon them by the judges who lived at or soon after the time when they were
made, because they were best able to judge of the intention of the makers at the time”.

With respect to modern statutes:Subject to use made of contemporary official statements and
statutory instruments the principle of contemporaneaexpositio is not applicable to a modern
statute.74 Even if the persons who dealt with the Act understood it in a particular manner, that
does not prevent the court in giving to the Act its true construction. 75 The doctrine “is confined
to the construction of ambiguous language used in very old statutes where indeed the
language itself have had a rather different meaning in those days”.76

74
Clyde Navigation Trustees v Laird, (1883) 8 AC 658, p 673 (HL); Assheton Smith v Owen, (1906) 1 Ch 179, p
213; Goldsmiths' Co v Wyatt, (1907) 1 KB 95, p 107 (CA); Senior Electric Inspector v Laxminarayan Chopra, AIR
1962 SC 159, pp 162 163 : 1962 (3) SCR 146; Raja Ram Jaiswal v State of Bihar, AIR 1964 SC 828, P 836 : (1964)
2 SCR 528; JK Cotton Spinning & Weaving Mills Ltd v UOI, AIR 1988 SC 191, p 204 : 1987 (4) JT 421; Doypack
Systems Pvt Ltd v UOI, AIR 1988 SC 782, p 802 : 1988 (2) SCC 299 [Reference is made to 3rd Edn of this book
(pp 238 and 239)]; Bhuwalka Steel Industries Ltd v Bombay Iron and Steel Labour Board, (2010) 2 SCC 273 para
79 : (2009) 15 JT 269. (This book is referred).

75
Clyde Navigation Trustees v Laird, (1883) 8 AC 658, p 673 (HL); Assheton Smith v Owen, (1906) 1 Ch 179, p
213; Goldsmiths' Co v Wyatt, (1907) 1 KB 95, p 107 (CA); Senior Electric Inspector v Laxminarayan Chopra, AIR
1962 SC 159, pp 162 163 : 1962 (3) SCR 146; Raja Ram Jaiswal v State of Bihar, AIR 1964 SC 828, P 836 : (1964)
2 SCR 528; JK Cotton Spinning & Weaving Mills Ltd v UOI, AIR 1988 SC 191, p 204 : 1987 (4) JT 421; Doypack
Systems Pvt Ltd v UOI, AIR 1988 SC 782, p 802 : 1988 (2) SCC 299 [Reference is made to 3rd Edn of this book
(pp 238 and 239)]; Bhuwalka Steel Industries Ltd v Bombay Iron and Steel Labour Board, (2010) 2 SCC 273 para
79 : (2009) 15 JT 269. (This book is referred).

76
Governors of Campbell College etc v Commissioner of Valuation, (1964) 1 All ER 705, p 727 (HL) (Lord
Upjohn); Doypack Systems Pvt Ltd v UOI, supra, p 802.
The Supreme Court has refused to apply the principle of contemporaneaexpositio to the
Telegraph Act, 188583 and the Evidence Act, 1872. Raja Ram Jaiswal v. State of Bihar, AIR
1964 SC 828 []

The Supreme Court also referred to the actual practice in the matter of appointment of judges of
Supreme Court and High Courts in the context of interpreting Articles 74 and 124 of the
Constitution and observed that the practice being in confirmity with the constitutional scheme
should be accorded legal sanction by permissible constitutional interpretation [Supreme Court
Advocates-on-Record Association v. Union of India, AIR 1994 SC 268 , p. 431]

Cases

[Governors of Campbell College etc. v. Commr. of Valuation, (1964) 2 All ER 705 , p. 72]

The Governors of a fee-paying public school claimed that the school was exempted from rates
being ‘used for charitable purposes’ within section 2 of the Valuation (Ireland) Amendment Act,
1854. It was accepted that if the test in Pemsel's case90 applied, the school would be entitled to
exemption, for educational purposes were in law charitable purposes. It was, however, contended
that under a longstanding practice supported by Alexandra College's case the exemption had
been confined to those educational charities whose purposes were concerned with the education
of the poor. The House of Lords held that the decision in Alexandra College's case92 was
unsupportable and the school was entitled to the exemption. Viscount Radcliffe pointed out that
the decision rendered in 1914 relating to the Act of 1854 was not contemporaneaexpositio. Lord
Upjohn in the same2 said: “For my part, I am quite unable to apply that principle to a statute
although it was passed a hundred years ago, whose language is plain and unambiguous and was
not misconstrued until the decision in Alexandra College's case, sixty years later”.

Sub-category of ‘Executive Construction’ –

1. But a uniform and consistent departmental practice arising out of construction placed
upon an ambiguous statute by the highest executive officers at or near the time of its
enactment and continuing for a long period of time is an admissible aid to the proper
construction of the statute by the court and would not be disregarded except for cogent
reasons.
2. The controlling effect of this aid which is known as ‘executive construction’ would
depend upon various factors such as the length of time for which it is followed, the nature
of rights and property affected by it, the injustice resulting from its departure and the
approval that it has received in judicial decisions or in legislation.
3. 3. Used for both recent and older/ancient statutes
4. 4. Examples: done through notifications and clarifications put on them by the Executive
authorities – Ministry of Corporate Affairs, CBDT, etc.
Case 2: Ajay Gandhi v B Singh AIR 2004 SC 1391, p 1394:Relying upon this principle, the
Supreme Court in Ajay Gandhi v B Singh AIR 2004 SC 1391, p 1394 having regard to the fact
that the President of the Income Tax Appellate Tribunal had been from its inception in 1941
exercising the power of transfer of the members of the Tribunal to the places where Benches of
the Tribunal were functioning, held construing sections 251(1) and 255(5) of the Income-tax Act
that the President under these provisions has the requisite power of transfer and posting of its
members. The court observed: "For construction of a statute, it is trite that the actual practice
may be taken into consideration."

Case 3:Vinay Tyagi v Irshad Ali, (2013) 5 SCC 762, p 793:[Extra]The Supreme Court has
held that though there is no specific requirement under section 173(8) of the CrPC, 1973, to
conduct "further investigation" or file "supplementary report" with the leave of the court, the
investigating agencies have not only understood but also adopted it as a legal practice to seek
permission of the courts to conduct "further investigation" and file "supplementary report", and
will therefore have to be read into, and is a necessary implication of section 173(8). The doctrine
of contemporaneaexpositio will fully come to the aid of such interpretation as matters which are
understood and implemented for a long time and such practice that is supported by law should be
accepted as part of the interpretative process.77

The principles of contemporaneaexpositio and executive construction though relevant for solving
a case of an ambiguity cannot be used for bringing about an implied repeal or quasi repeal.78

USE OF FOREIGN DECISIONS

Use of foreign decision of countries following the same system of jurisprudence as ours and
rendered on statutes in parimateria has been permitted in Indian Courts. This has been
established not as a rule or principle, but by practice.

The qualification here is that prime importance is given to the language of the relevant Indian
statute, the the circumstances and the setting in which it is enacted and the Indian conditions
where it is to be applied and that it is not to be forgotten that there is always an element of risk in
taking ready and hasty assistance from such decisions. See MadanlalFakirchandDudhediya v.
S. Changdeo Sugar Mills Ltd., AIR 1962 SC 1543 [LNIND 1962 SC 125], p. 1549 (para 15).

When an Indian Act is modelled on a prior English Act, decisions construing the provisions of
the English Act are referred to as helpful guide for construing corresponding provisions of the

77
AIR 2004 SC 1391, p 1394.

78
Municipal Corp for the City of Pune v Bharat forge Col. Ltd, 1995 (2) Scale 245, p 251 : AIR 1996 SC 2856, p
2861 : (1993) 3 SCC 434
Indian Act.79 For example, the court referred to M'Naghten's case 80 for interpreting and applying
the defence of insanity in section 84 of the Penal Code which is modelled on the English law.81

How different conditions prevailing in India may give rise to non-acceptance by Indian courts of
an interpretation given by English courts of same or similar words can be illustrated by the case
of MV Elisabeth v Harwan Investment & Trading Pvt Ltd 82 In this case the Supreme Court
differing from English decisions interpreted the words "damage caused by a ship" in section 443
of the Merchant Shipping Act, 1958 as not limited to physical damage done by a ship by reason
of its coming into contact with something and to include damage to cargo carried in a ship. The
important consideration for giving to the words a wide interpretation is that there is no other Act
in India covering claims for damage to cargo carried in a ship but in England this subject is
covered expressly by a different Act.

Reference to English Decisions:

Codes in India, in early times, used language similar to what was used in England. Thus, judges
often referred to them while reaching their decisions. Even illustrations in the statutes were based
on the case law in England. [MC Setalvad]

Our fundamental rights derives inspiration from the Bill of Rights in the US – and US decisions
are often quoted to reach decisions. Examples:

1. Shreya Singhal – clear and present danger.

2. Union of India v. Motion Pictures Associates AIR 1999 SC 2334 – ‘must carry’ provision
for films – this does not violate Art. 19(1) of the Constitution – not compelled speech as it
furthers informed decision making which is important to operationalise right to free speech and
expression. Relied on following Neat R. Wooby v. George Maynard, (1977) 430 US 705 and
Turner Broadcasting System Inc. v. Federal Communications, (1997) 512 US 622.

Indian Act when modelled on English Act, decisions interpreting the latter are admissible as
guides to interpret the Indian Act. Example: Oppression and Mismanagement Provisions:
Prejudice meaning to be gleaned from UK Act and decisions therein.

79
Assistant Collector of Customs, Calcutta v Sitaram Agarwala, AIR 1966 SC 955, p 965 : 1966 (2) SCR 1;
Godhara Borough Municipality v Godhara Electricity Co Ltd, AIR 1968 SC 1504, p 1508 : 1968 (3) SCR 481;
Nawn Estates Pvt Ltd v CIT, WB, AIR 1977 SC 153, p 156 : 1977 SCC (Tax) 119 : (1977) 1 SCC 7. Nearly the
same view has been taken in Australia: Owners of the Motor Vessel "IRAN AMANAT" v KMP Coastal Oil PTE
Ltd, (1999) 73 ALJR 559, p 563 (para 20) (Aust).

80
(1843) 8 ER 718 : (1843-60) All ER Rep. 229 (HL).

81
B Sudhakaran v State of Kerala, (2010) 10 SCC 582 PARA 32 : AIR 2011 SC 265

82
AIR 1993 SC 1014, p 1038 : 1992 (2) JT 65 : 1993 Supp (2) SCC 433.
International Law:

 VG Hegde: Indian Courts and International Law – shift from the doctrine of transformation to
that of incorporation.

Rajamani in Oxford Handbook

 Right to Strike and International Law – what decisions to use, authoritative decisions,

interpretational guidance, judicial dialogue, extent of incorporation

DICTIONARIES

When word not defined in the Act itself, use Dictionaries to find out what the word means in
common parlance. But to choose which meaning to choose, always bear in mind the context in
which the word(s) appear – words find their colour from the context in which they appear.

1. See the word in context of the scheme of the Statute,

2. Give technical (or legal) terms their technical (or legal) meanings,

3. Be mindful of the legislative history.

4. Use this as a last resort if statutes in parimateria, PH also do not reveal anything

Not use those meanings if they make some words in the statute redundant or require addition of
certain more words

When a word is not defined in the Act itself, 54. it is permissible to refer to dictionaries to find
out the general sense in which that word is understood in common parlance.83

Re Rameshwar Prasad Goyal, Advocate, (2014) 1 SCC 572, pp 576, 577.: Rule 8-A of the
Supreme Court Rules, 1966, provides that when on the complaint of any person or "otherwise",
the court is of the opinion that an Advocate–on-Record, has been guilty of misconduct or of
conduct unbecoming of an Advocate-on-Record, the court may make an order removing his
name from the register of Advocates-on-Record. The Supreme Court relied on the fact that the
term "otherwise" was defined in the dictionary to mean "contrarily, different from that to which

83
R v Peters, (1886) 16 QBD 636, p 641 (Lord Coleridge): Marquis Camden v IRC, (1914) 1 KB 641, p 647,
(Cozen Hardy, MR); CIT, WB v Benoy Kumar Sahas Roy, AIR 1957 SC 768, p 772 : 1958 SCR 101 (Bhagwati, J);
BhogilalChunilal Pandya v State of Bombay, AIR 1959 SC 356, p 357 :1959 Supp (1) SCR 310; India Carbon Ltd v
Superintendent of Taxes, Gauhati, AIR 1972 SC 154, P 156 : (1971) 3 SCC 612; CIT, AP v Taj Mahal Hotel,
Secunderabad, AIR 1972 SC 168, p 171 : (1971) 3 SCC 550; Commissioner of Wealth Tax, Andhra Pradesh v
Officer in Charge, AIR 1977 SC 113, p 117 : 1976 SCC (Tax) 411 : (1976) 3 SCC 864; Bolani Ores Ltd v State of
Orissa, AIR 1975 SC 17, pp 25, 26 : 1974) 2 SCC 777; Mohinder Singh v State of Haryana, AIR 1989 SC 1367, p
1368 : 1989 (3) SCC 93; Star Paper Mills Ltd v Collector of Central Excise, Meerut, AIR 1989 SC 2066 : 1989 (4)
SCC 724, P 2068; New Delhi Municipal Committee v Allied Motor Pvt Ltd, 1995 (6) Scale 37, p 40.
it relates", and held that the Supreme Court is competent to proceed against an Advocate-on-
Record suo motu under rule 8-A, without any complaint from any person, if prima facie it is of
the opinion that he is guilty of misconduct or conduct unbecoming of an Advocate-on-Record.
[Extra]

[All Extras]

However, in selecting one out of the various meanings of a word, regard must always be had to
the context as it is a fundamental rule that "the meanings of words and expressions used in an
Act must take their colour from the context in which they appear". 58. Therefore, "when the
context makes the meaning of a word quite clear, it becomes unnecessary to search for and select
a particular meaning out of the diverse meanings a word is capable of, according to
lexicographers".84

As stated by Krishna Aiyar J: "Dictionaries are not dictators of statutory construction where the
benignant mood of a law, and more emphatically, the definition clause furnish a different
denotation". 61. In the words of Jeevan Reddy J: A statute cannot always be construed with the
dictionary in one hand and the statute in the other. Regard must also be had to the scheme,
context and to the legislative history.85

Judge Learned Hand cautioned "not to make a fortress out of the dictionary" but to pay more
attention to "the sympathetic and imaginative discovery" of the purpose or object of the statute as
a guide to its meaning.86

A dictionary meaning cannot be adopted if it will make some existing words redundant or will
require reading of some additional words. 64. Further, words and expressions at times have a
"technical" or a "legal meaning" and in that case they are understood in that sense. 65. Again,
judicial decisions expounding the meaning of words in construing statutes in parimateria will
have more weight than the meaning furnished by dictionaries.
84
Mangoo Singh v Election Tribunal, Bareilly, AIR 1957 SC 871, p 875 : 1958 SCR 418; Dy Chief Controller of
Imports & Exports v KT Kosalram, AIR 1971 SC 1283, p 1289 : (1970) 3 SCC 82; RS Nayak v AR Antuley, supra;
CIT, Bangalore v Venkateshwara Hatcheries Pvt Ltd, JT 1999 (2) SC 338, p 341 : AIR 1999 SC 1225, p 1228 :
(2001) 10 SCC 569; CI Trivandrum v Anand Theatres, JT 2000 (6) SC 407, p 436 : (2000) 5 SCC 393; Tarachand
Deosharma v State of Punjab, AIR 2001 SC 2524, p 2529; Karnataka State Road Transport Corp v Ashrafulla Khan,
AIR 2002 SC 629, p 635 : (2002) 2 SCC 560; Amarendra Pratap Singh v Tej Bahadur Prajapati, AIR 2004 SC 3782,
pp 3789, 3790 (8th Edn, pp 279, 280 of this book referred), P Prabhakaran v P Jayarajan, (2005) 1 SCC 754, p 779
(Ninth Edn p 302 of this book is referred).

85
CIT Orissa v NC Budhraja and Co, AIR 1993 SC 2529, p 2540 : 1993 (5) JT 346 : 1994 Supp (1) SCC 280

86
Cabell v Markham, 148 F 2d 737, p 739 (2nd crcir 1945); UOI v Harjeet Singh Sandhu, AIR 2001 SC 1772, p
1785 : (2001) 5 SCC 593 (7th Edn of this book pp 258, 259 referred); Tarachand Deosharma v State of Punjab, AIR
2001 SC 2524, pp 2529, 2530 (7th Edn of this book pp 258, 259 referred. See further KP Verghese v Income-tax
Officer, Ernakulam, (1981) 4 SCC 173, p 180 : AIR 1981 SC 1922; DLF Universals Ltd v Appropriate Authority,
AIR 2000 SC 1985, p 1992 : (2000) 5 SCC 552.