Interpretation of statutes: A complete study to an aids to interpretation

1. What is interpretation of statutes?

Interpretation is the process which is employed by the judiciary to ascertain or to determine

the meaning of the statutes or legal provision. It is basically a process by which court seeks to
ascertain the true meaning of the expression or word or phrase which is in question in any
statute before the court and determine the true intention of the legislature behind such
statutory provision.

A process of interpretation employed by the judiciary can be done through various tools or
principles of statutory interpretation which include seeking help from internal or external aids
to interpretation and applying primary or secondary rule of interpretation which has evolved
over a period of time by the court.

According to Salmond:
Interpretation and construction is the process by which the court seek to ascertain the meaning
of the legislature through the medium of authoritative forms in which it is expressed.

According to Blackstone:
The most fair and rational method for interpreting a statute is by exploring the intention of the
legislature through texts, the subject matter, the effect and consequences or the spirit and
reason of law.

2. What is construction of statutes?

Construction, in strict sense, is the process by which the court assign the meaning to the
ambiguous provision which is beyond the letter of law for the purpose to resolve the
inconsistency. The judges after taking into consideration the factual circumstances before the
court give a particular meaning to the expression or word or phrase in question. Although, such
meaning must be within the ambit of the objective of statute and could not be directly
explained by the statute.
The word interpretation and construction are used interchangeably but there is thin line of
difference between both the concepts.

According to Cooley, Interpretation is the art of finding out the true sense of any form of words
and enabling others to drive from them the same meaning which the author intended to
convey, whereas, construction is the process of drawing conclusions, respecting subjects that
lie beyond the direct expression of the text, which are in the spirit though not within the letter
of law.
Basically, interpretation is a process of discovering, from permissible data, the meaning and
intension of the legislature and if interpretation discloses clear meaning and intention of the
legislature it will be directly applied to factual circumstances but if interpretation doesn't
disclose clearly the meaning in context of factual circumstances, then construction will
undergoes to seek to assign meaning or intention to the words used by the legislature. It is
clearly drawn that construction is more concerned with applying the meaning to the factual
circumstances than mere ascertaining the meaning of the words of provision.

Tabular difference between interpretation and construction

Interpretation Construction

It is the process by which court assign the

It is the process adopted by the court to
meaning to the ambiguous provision
1 determine the true meaning of the legislative
which is beyond the letter of law for the
provision.
purpose to resolve the inconsistency.

By construction one can find out the way

By interpretation one can find out the true
2 to apply the meaning to the factual
sense of any form of words in statue.
circumstances before court.

Interpretation enables the linguistic meaningConstruction is more concerned in

3
of the legal text. enabling conclusion to the situation.

3. Aids to interpretation of statutes

An Aid is considered as a tool or device which helps in interpreting a statute, the court can take
help from internal aids to interpretation (i.e. within statutes) or external aids to interpretation
(i.e. outside the statutes)

A. Internal aids to interpretation

Internal aids means those aids which are available in the statute itself, court can interpret the
statute by employing such aids which are as follows:

1. Title of the statute

There are basically two types of title-
I. Short Title

The short title of the Act is only its name which is given solely for the purpose of
reference and identification.
Short title is mention under Section 1 of the Acts and ends with the year of passing of
the Act.

Example- Section 1 of CPC says, This Act may be cited as Code of Civil Procedure, 1908.'
Section 1 of Indian contract Acts says, This Act may be called as Indian Contract Act,
 1872.

II. Long Title

The long title is mention under certain acts whose purpose is to give a general
description about the object of the act.
However, it is not considered as a conclusive aid to interpretation of statutes as it
doesn't resolve ambiguity arising in words or expression under statutory provision but
only provide a general idea of the act.

Example- The long title of CrPC says, An act to consolidate and amend the laws relating
to the criminal procedure. Also, the long title of CPC says, An act to consolidate and
amend the laws relating to the procedure of the courts of civil judicature.

2. Preamble
Preamble is a tool for internal aid to interpretation as it contains the main objects and
reasons of the Act.
The rule of interpretation of preamble is that when a language of an enactment is clear
and unambiguous, the preamble has no part to play but if more than one interpretation
is possible, a help can be taken from preamble to ascertain the true meaning of the
provision.
The preamble is mention on the very first page of the act but modern acts doesn't pass
with preamble which is declining its importance.

State of West Bengal v. Anwar Ali , the constitutionality of Section 5 of the West Bengal
special courts act, 1950 was challenged on the grounds of violative of Article 14 of the
constitution as the provision in the act authorize state government to select a particular
case which deserved to be tried by special courts having special procedure. The
Supreme Court take help of the preamble of the said Act and held that state
government has discretion to choose such cases.

3. Marginal notes
Marginal notes are inserted at the side of the sections in an act which express the effect
of the section but they are not part of statute.
They are also known as Side notes and are inserted by drafters and not legislators.

The rule of interpretation is that in olden times a help is used to be taken from marginal
notes when the clear meaning of the provision is in doubt but as per modern view of the
court, marginal notes doesn't have any role to play because either they are inserted by
legislators nor does they form the part of the statute.
However, for interpreting constitution many times marginal notes are referred because
they are made by constituent assembly.

Bengal Immunity Company v. State of Bihar , the Supreme Court held that the marginal
 notes of Article 286 is the part of the Constitution of India which talks about Restrictions
as to imposition of the tax on the sale or purchase of goods therefore, it could be relied
on to furnish a clue to the purpose and meaning of the article.

4. Headings
Headings are prefixed to sections or a group or set of sections.
These headings have been treated by courts as preambles to those sections or sets of
sections.
The rule of interpretation is that the heading can't control the plain words of the
provision but if after the plain reading of the section more than one meaning is possible,
only then the court may seek guidance from the headings.

Tolley v. Giddings , interpretation of section 217 of Road Traffic Act was in question
which provides that a person could be held liable of an offence if he allowed himself to
be driven away in a motor vehicle without the consent of its master. The heading of the
provision is Miscellaneous and general' and sub heading is Penalization of taking motor
vehicle without authority'. The court held that headings to the section clearly explain
the intention of the legislature and thus the passenger would be held liable of an
offence.

5. Illustration
Illustration are appended to a section of a statute with a view to illustrating the law
explained in the provision.
Such illustration manifest the intention of the legislature and can be referred in the case
of ambiguity or repugnancy.
However, the court emphasis through various judgments that it doesn't explain the
whole principle explain in the section through illustration nor does it curtail the ambit of
the section.
In the case of repugnancy between section and illustration, section will prevail.

Example- Section 378 of theft in IPC has 16 illustrations attached to it.

6. Explanation
The explanations are inserted with the purpose of explaining the meaning of a particular
provision and to remove doubts which might creep up if the explanation had not been
inserted.
The purpose of explanations are to explain the meaning and intention of act, to clarify in
case of obscurity or vagueness and to provide additional support to the object of the
act.
However, it doesn't expand or curtail the meaning of the provision but only tries to
remove uncertainty and in the case of conflict between explanation and main section,
the duty of the court is to harmonize the two.
 Example- section 108 of IPC defines the word abettor' which has five explanation attach
to it.

7. Definition or Interpretation clause

It define certain words used elsewhere in the body of statute with the purpose to avoid
the necessity of frequent repetitions in describing the subject matter and extend the
natural meaning of some words as per the statute. It also define intention of the
legislature in respect of words mention in statute and avoid confusion.

The rule of interpretation is that whenever the words means or means and include' are
used in definition, it makes the definition exhaustive and don't allow to interpret the
definition widely but if the word includes' is used in the definition it provide widest
interpretation possible to the definition or enlarge the ordinary meaning of the word.

However, if the definition clause will result in an absurdity, the court will not apply such
definitions and the definition clause of one act can't be used to explain same word used
in another statute except in the case of statutes in pari materia.

Mahalaxmi Oils Mils v. State of A.P [8], interpretation of word tobacco was in question
which said tobacco means any form of tobacco whether cured or uncured or
manufactured or not and includes leaf stalks and steams of tobacco plant. The SC held
that the definition is exhaustive and refused to include tobacco seeds under the
definition of tobacco.

8. Punctuation
Punctuation are put in the form of colon, semi colon, comma, full stop, dash, hyphen,
brackets etc
In earlier times statutes are passed without punctuations and therefore, the courts were
not concerned with looking at punctuations but in modern times statutes are passed
with punctuations.

The rule of interpretation is that while interpreting the provision in punctuated form, if
court feels repugnancy or ambiguity the court shall read the whole provision without
any punctuation and if the meaning is clear will so interpret it without attaching any
importance.

9. Schedules
Schedule are the part of statutes which are mentioned at the end of the act.
It contains details prescribe form of working out policies and contains subjects in the
form of lists.
In the case of clash between schedule and the main body of an act, the main body shall
 prevail.

Example- Article 1 of the constitution provides that India shall be union of states and in
schedule 1 name of the states with its territories are mention.

10. Saving Clause

Saving Clause are generally appended in cases of repeal and reenactment of a new
statute. It is inserted in the repealing statute.
By this the rights already created under repealed enactment are not disturbed nor are
new rights created by it.
In the case of clash between the main part of statute and a saving clause, the saving
clause has to be rejected.

11. Proviso
The proviso to a section has the natural presumption that enacting part of the section
would have included the subject matter of the proviso.
The proviso serve four different purposes- qualify or exempt certain provision, provide
mandatory condition to be fulfilled by to make enactment workable, act as optional
addenda and become integral part of the enactment.

The rule of interpretation of proviso is that it can neither nullify the implication of main
enactment nor can enlarge the scope of main enactment and can only be referred in
case of ambiguity in the section.

In case of conflict between main enactment and proviso, it must be harmoniously

construct or in the view of many jurist proviso will prevail as it is the last intention of the
legislature.

Example- Article 16(4) is considered as proviso of Article 16(1) held in T. Devadasan v.

Union of India .

12. Exception
Exception are generally added to an enactment with the purpose of exempting
something which would otherwise fall within the ambit of the main provision.
In case of repugnancy between exception and main enactment, the latter must be relied
upon. However, in many cases exceptions are relied being the last intention of
legislature.

Example: Section 300 of IPC has five exceptions attached to it.

Difference between proviso and exceptions

Proviso has a wider function than exception as, an exception only exempt certain things to fall
in the main enactment whereas, proviso not only exempt certain cases but also provide a
mandatory condition, qualification or an optional addenda to the enactment.
Proviso follows the main enactment whereas exception is the part of main enactment.

B. External aids to interpretation

External aids are the aids which are not available inside the statute but outside the statute, the
court may seek help to the external aids in case of repugnancy or inconsistency in the statutory
provision which are as follows:

1. Dictionaries
When a word used in the statute is not defined therein or if defined but the meaning is
unclear only in such situation, the court may refer to the dictionary meaning of the
statute to find out meaning of the word in ordinary sense.

The meaning of such words shall be interpreted so to make sure that it is speaking
about the particular statute because words bears different meaning in different context.
Motipur zamindary company private limited v. State of Bihar , the question was
whether sales tax can be levied on Sugarcane.

The applicant argued that it is green vegetable and should be exempted from tax. The
dictionary meaning of vegetable said anything which derived or obtained from the
plants. The SC rejected dictionary meaning and held that in common parlance vegetable
is something which is grown in kitchen garden and used during lunch and dinner and
held that sugarcane is not vegetable.

2. Text Books
The court while construing an enactment, may refer to the standard textbooks to clear
the meaning. Although, the courts are not bound to accept such view.
The court time and again referred to mulla, kautiliya, manu, arthshastra.

Example: in Kesavananda Bharthi case , judges quoted large number of books.

3. Statement of objects and reasons

The statement of object and reasons are attached to the bill which describe the objects,
purpose and the reason for the bill. It also gives understanding of the background, the
antecedent state of affairs and the object the law seeks to achieve.

The parliament before passing a bill must take into consideration that what object a bill
 serve to achieve.
However, it is not considered as conclusive aid to interpretation because doesn't impart
the true meaning to the statutory provision.

4. Constituent Debates/Speech
It shall compromises all such debate which had taken place in the parliament at the time
of formation of Constitution of India.
In case of inconsistency or repugnancy in the Constitution the court can clearly refer to
such debates.

Indra Sawhney v. Union of India , the interpretation of the expression backward class of
citizen' used in Article 16(4) was in question before the court. The SC under this case
referred to the speech given by B.R. Ambedkar to understand the context, background
and object behind its use of the given expression.

5. Legislative Debates/Speech
It is referred as to debates or speeches which are made in the course of passing a bill in
the parliament by the parliamentarians to put forth their view.
It is not considered as a conclusive aid to interpretation and is therefore, not admissible
because many times speeches are influenced by the political pressure or maybe
incorrect to rely upon.

6. Committee Reports
Before the framing of the Bill, usually the matter is referred to a committee to consider
it in detail and give its report thereon.
These reports of the commissions and committee have been referred to as evidence of
historical facts or of surrounding circumstances and used for interpreting the Act.
When there is an ambiguity in the meaning of a provision and the act was passed on the
recommendation of a committee report, aid can be taken from that report to interpret
the provision.
Example: the criminal amendment act was based on the recommendation by J.S. Verma
Committee Report such report can be referred in case of any ambiguity in amendment.

7. Foreign laws and decisions

Judges may refer to foreign laws and decision if the jurisprudence of both the countries
is same, similarity in political system and ideology, when there is no domestic law on
point and if the Indian court believe that decision passed by the foreign court is not
arbitrary.
However, the foreign courts or decision have only persuasive value as the courts in India
are not bound by the foreign courts.

Example: in Right to Privacy case, judges refer to foreign judgements.

RULES OF INTERPRETATION:-
Literal or Grammatical Rule

It is the first rule of interpretation. According to this rule, the words used in this text are to be
given or interpreted in their natural or ordinary meaning. After the interpretation, if the
meaning is completely clear and unambiguous then the effect shall be given to a provision of a
statute regardless of what may be the consequences.

The basic rule is that whatever the intention legislature had while making any provision it has
been expressed through words and thus, are to be interpreted according to the rules of
grammar. It is the safest rule of interpretation of statutes because the intention of the
legislature is deduced from the words and the language used.

According to this rule, the only duty of the court is to give effect if the language of the statute is
plain and has no business to look into the consequences which might arise. The only obligation
of the court is to expound the law as it is and if any harsh consequences arise then the remedy
for it shall be sought and looked out by the legislature.

Case Laws

Maqbool Hussain v. State of Bombay, In this case, the appellant, a citizen of India after arriving
at the airport did not declare that he was carrying gold with him. During his search was carried
on, gold was found in his possession as it was against the notification of the government and
was confiscated under section 167(8) of Sea Customs Act.

Later on, he was also charged under section 8 of the Foreign Exchange Regulations Act,
1947. The appellant challenged this trial to be violative under Article 20(2) of the Indian
Constitution. According to this article, no person shall be punished or prosecuted more than
once for the same offence. This is considered as double jeopardy.

It was held by the court that the Seas Act neither a court nor any judicial tribunal. Thus,
accordingly, he was not prosecuted earlier. Hence, his trial was held to be valid.

Manmohan Das versus Bishan Das, AIR 1967 SC 643

The issue in the case was regarding the interpretation of section 3(1)(c) of U.P Control of Rent
and Eviction Act, 1947. In this case, a tenant was liable for evidence if he has made addition and
alternate in the building without proper authority and unauthorized perception as materially
altered the accommodation or is likely to diminish its value. The appellant stated that only the
constitution can be covered, which diminishes the value of the property and the word ‘or’
should be read as land.

It was held that as per the rule of literal interpretation, the word ‘or’ should be given the
meaning that a prudent man understands the grounds of the event are alternative and not
combined.

State of Kerala v. Mathai Verghese and others, 1987 AIR 33 SCR(1) 317, in this case a person
was caught along with the counterfeit currency “dollars” and he was charged under section
120B, 498A, 498C and 420 read with section 511 and 34 of Indian Penal Code for possessing
counterfeit currency. The accused contended before the court that a charge under section
498A and 498B of Indian Penal Code can only be levied in the case of counterfeiting of Indian
currency notes and not in the case of counterfeiting of foreign currency notes. The court held
that the word currency notes or bank note cannot be prefixed. The person was held liable to be
charge-sheeted.

The Mischief Rule

Mischief Rule was originated in Heydon’s case in 1584. It is the rule of purposive construction
because the purpose of this statute is most important while applying this rule. It is known as
Heydon’s rule because it was given by Lord Poke in Heydon’s case in 1584. It is called as
mischief rule because the focus is on curing the mischief.

In the Heydon’s case, it was held that there are four things which have to be followed for true
and sure interpretation of all the statutes in general, which are as follows-

1. What was the common law before the making of an act.

2. What was the mischief for which the present statute was enacted.

3. What remedy did the Parliament sought or had resolved and appointed to cure the
disease of the commonwealth.

4. The true reason of the remedy.

The purpose of this rule is to suppress the mischief and advance the remedy.

Case laws

Smith v. Huges, 1960 WLR 830, in this case around the 1960s, the prostitutes were soliciting in
the streets of London and it was creating a huge problem in London. This was causing a great
problem in maintaining law and order. To prevent this problem, Street Offences Act, 1959 was
enacted. After the enactment of this act, the prostitutes started soliciting from windows and
balconies.

Further, the prostitutes who were carrying on to solicit from the streets and balconies were
charged under section 1(1) of the said Act. But the prostitutes pleaded that they were not
solicited from the streets.

The court held that although they were not soliciting from the streets yet the mischief
rule must be applied to prevent the soliciting by prostitutes and shall look into this issue. Thus,
by applying this rule, the court held that the windows and balconies were taken to be an
extension of the word street and charge sheet was held to be correct.

Pyare Lal v. Ram Chandra, the accused in this case, was prosecuted for selling the sweeten
supari which was sweetened with the help of an artificial sweetener. He was prosecuted under
the Food Adulteration Act. It was contended by Pyare Lal that supari is not a food item. The
court held that the dictionary meaning is not always the correct meaning, thereby, the mischief
rule must be applicable, and the interpretation which advances the remedy shall be taken into
consideration. Therefore, the court held that the word ‘food’ is consumable by mouth and
orally. Thus, his prosecution was held to be valid.

Kanwar Singh v. Delhi Administration, AIR 1965 SC 871.

Issues of the case were as follows- section 418 of Delhi Corporation Act, 1902 authorised the
corporation to round up the cattle grazing on the government land. The MCD rounded up the
cattle belonging to Kanwar Singh. The words used in the statute authorised the corporation to
round up the abandoned cattle. It was contended by Kanwar Singh that the word abandoned
means the loss of ownership and those cattle which were round up belonged to him and hence,
was not abandoned. The court held that the mischief rule had to be applied and the word
abandoned must be interpreted to mean let loose or left unattended and even the temporary
loss of ownership would be covered as abandoned.

Regional Provident Fund Commissioner v. Sri Krishna Manufacturing Company, AIR 1962
SC 1526, Issue, in this Case, was that the respondent concerned was running a factory where
four units were for manufacturing. Out of these four units one was for paddy mill, other three
consisted of flour mill, saw mill and copper sheet units. The number of employees there were
more than 50. The RPFC applied the provisions of Employees Provident Fund Act, 1952 thereby
directing the factory to give the benefits to the employees.

The person concerned segregated the entire factory into four separate units wherein the
number of employees had fallen below 50, and he argued that the provisions were not
applicable to him because the number is more than 50 in each unit. It was held by the court
that the mischief rule has to be applied and all the four units must be taken to be one industry,
and therefore, the applicability of PFA was upheld.

The Golden Rule

It is known as the golden rule because it solves all the problems of interpretation. The rule says
that to start with we shall go by the literal rule, however, if the interpretation given through the
literal rule leads to some or any kind of ambiguity, injustice, inconvenience, hardship, inequity,
then in all such events the literal meaning shall be discarded and interpretation shall be done in
such a manner that the purpose of the legislation is fulfilled.

The literal rule follows the concept of interpreting the natural meaning of the words used in the
statute. But if interpreting natural meaning leads to any sought of repugnance, absurdity or
hardship, then the court must modify the meaning to the extent of injustice or absurdity caused
and no further to prevent the consequence.

This rule suggests that the consequences and effects of interpretation deserve a lot more
important because they are the clues of the true meaning of the words used by the legislature
and its intention. At times, while applying this rule, the interpretation done may entirely be
opposite of the literal rule, but it shall be justified because of the golden rule. The presumption
here is that the legislature does not intend certain objects. Thus, any such interpretation which
leads to unintended objects shall be rejected.

Five part analysis of the golden rule of interpretation

Whenever there is a shadow of scepticism casted on the grammatical construction of any law
then in such circumstances, the golden rule of interpretation can be applied on the law in order
to apply it to the facts in a legal dispute. The external manifestation of the underlying law
which is interpreted from reading between the lines projects the true intent of the legislature
for which the golden rule is used. By taking into consideration the consequences of the
judgement, the judges have the discretion to interpret the law in a rational manner. The
analysis of Golden Rule can be divided into five categories as discussed below:

 WARBURTON’S CASE

Explaining the principle underlying the Golden rule, Justice Burton in the case of Warburton v.
Loveland observed that in the very first instance of application of law the grammatical sense of
the wordings of law must be paid heed. But if there is involvement of any absurdity,
inconsistency, or is against the declared purpose of the statute then in such circumstance, the
grammatical sense of the law can be modified or interpreted so far as there is no injustice
caused to the parties of the case. Even though the elementary rule of interpreting the words as
it is in their grammatical sense has been upheld by the courts in numerous cases like Madan Lal
v. Changdeo Sugar Mills, the courts should still be open to various interpretations of the law so
that no injustice is caused. This well-known rule was strictly formulated by Parke B. in the case
of Becke v. Smith wherein it was held that, the wordings of the law which are unambiguous and
plain nature should be construed in their regular sense even though, if in their assessment it is
absurd or promotes injustice. We assume the function of the legislature when we deviate from
the ordinary meaning of the statute due to which from the adherence to its literal meaning we
prevent the manifestation of injustice.

 LORD WENSLEYDALE’S GOLDEN RULE

The term golden rule was coined by Lord Wensleydale which was later adopted in the case
of Gray v. Pearson due to which it is primarily called the Lord Wensleydale’s Golden Rule of
Interpretation. Lord Wensleydale expressing this opinion of the rule, mentioned that he is
deeply awestruck with the perception of the rule which is being universally accepted by the
courts all over the world in order to understand all the written laws, construing wills and other
written frameworks. He also mentioned that the ordinary derivative and the grammatical
construction of the law should be abided by in the first instance unless there is any absurdity or
repugnancy due to which it is necessary to modify the ordinary understanding of the words. In
the case of Matteson v. Hart the golden rule was elaborately discussed by Jervis CJ where he
relied on the Golden Rule of Construction in order to understand the words used by the
Legislature in the Acts and also to prevent any absurdity and injustice which may stem from the
intention of the statute.

 HEYDON’S RULE OF MISCHIEF

In the Heydon’s Rule of Mischief, he elaborated that only in such circumstances where the
intention of the legislature appears to be unjust, only in such cases the intervention of the
office of judges in interpreting the law is reasonable. Slightly deviating from what Lord
Wensleydale has opined, instead of viewing the legislative intent as a whole and construe it all-
together, the reasons for the enactment of the laws in retrospect should be taken into
consideration so that we can derive the object it plans to subserve and the evil it plans to end.
In the case of Newspaper Ltd. v. State Industrial Tribunal, the Latin maxim “ex visceribus
actus” was cited which meant that while determining the intention of the legislation, detached
sections of parts of the Act should not be taken, instead the intention of the act as a whole
which construes the constituent parts should be considered. This principle was reaffirmed in
the case of Inland Revenue Commissioners. V. Herbert where Lord Haldane interpreted a
legislation which was newly enacted and he adjudged that “Where words of general
understanding are used, the common understanding of men is one main clue to the meaning of
legislature.” But the Golden Rule of Interpretation laid by Lord Wensleydale has been a
principle accepted worldwide.

 LITERAL GOLDEN MISCHIEF

As described by Lord Granworth LC, this is a “Cardinal Rule ” which is a rule based on common
sense which is as strong as can be”. In the English cases, there are three basic rules as
elucidated by GW Paton. Those are:

1. Whatever the result, if the meaning of the wordings of law is plain then they should be
applied as per the Literal Rule.

2. Unless there is any ambiguity or absurdity in the wordings of the law, the ordinary sense
of the law should be resorted to as per the Golden Rule.

3. The general policy or intention of the statute must be considered and eliminate the evil
which was directed as per the Mischief Rule.

 LATTER PART OF THE RULE

There is a lot of care which must be taken with regards to the later part of the Golden Rule and
in the case of Christopher v. Lotinga, every word of the Golden Rule was subscribed to by
Justice Willes. In the case of Woodward v. Watts, Justice Crompton expressed his doubts
regarding this rule and opined that the Legislature must have enacted the legislation with a
particular intent which may be destroyed if the courts reinterpret it due to some absurdity
which defeats the whole purpose of the enactment. To understand the applicability of the
three methods of judicial approach which is the literal rule, the golden rule and the mischief
that the statute is designed for in order to prevent it, the case of Vacher v. London Society of
Compositors can be referred to. In this case, the validity of Section 4(1) of the Trade Disputes
Act, 1906 was in question as to whether any torturous acts which are committed by the trade
unions are included under the protection or is it only such are which was torturous in nature in
furtherance of any trade dispute. Deciding on the former view, the House of Lords relied on the
aforementioned three judicial approaches in which Lord Macnaughten adopted the golden rule
of interpretation which is derived from the case of Grey v. Pearson, while Lord Atkinson
espoused the literal approach which is derived from the case of Cooke v. Charles A Vageler and
lastly, the history of the enactment of the stature and the application the mischief method has
been relied upon by Lord Moulton.

Applicability and usage of golden rule of interpretation

If there is a choice between two interpretations, then the interpretation which reduces the
futility or which is narrower in nature fails to incorporate the purpose of the legislation due to
which such a construction must be avoided as discussed in the case of Nokes v. Doncaster
Amalgamated Collieries Ltd by Viscount Simon L.C. Instead, we should admit the bolder form of
the construction which is the intention of the Parliament to enact the legislation only for the
purpose of making the result effective. The transfer of an undertaking which includes, property,
duties, liabilities and rights from the old company to a new company is dealt with under Section
154 of the Companies Act, 1929. In the case of Luke v. R.R.C. an issue was raised with regards to
the transfer of contract of service existing between the former company and the individual. The
House of Lords adjudged that the notice of amalgamation should be provided to the individual.
The golden rule of interpretation has been used in this case where if the prima facie meaning of
the words would be taken into consideration, then no consent would be required of the
employee during amalgamation, but this would lead to injustice. But in the present case the
court deviated from the wordings of the law and decided that it is the duty of the transferor
company to inform the workers about the amalgamation.

A restricted Construction was adopted by the legislature while drafting the Central Services
(Classification, Appeal And Control) Rules, 1956 specifically Rule 11(VI) due to which it was
interpreted by the court by using the Golden Rule in the case of Nyadar Singh v. Union of India.
This provision imposes a penalty if there is any reduction in the grade post or service or the pay
scale of the employee. It was adjudged by the Supreme Court that if any person is appointed to
a bigger post or pay grade, then he cannot be abridged to a lower pay grade or post due to
which this provision acquired a wider construction as interpreted by the Court. As per Maxwell,
the applicability of Golden Rule is significant in the area which is dedicated to the construction
of legislations to adjudge consequences and also the construction of certain provisions which
eliminate injustice and inconvenience or also evasion.

To explain the applicability of the Golden rule, the case of Free Lanka Insurance Co. Ltd. v.
Panasinghe can be referred where it was held that if a prisoner escapes from prison due to fire
accident, then he did not commit a felony under the Statute as this act committed by him was
not with the intention of getting freedom but it is to save his life. Similarly, if there is any act
which is done on certain justifiable grounds then that act would not qualify as criminal in
nature.

The Supreme Court and High Court in India have applied the Golden Construction of Statutes in
various judgements as previously discussed. But there is a certain confusion which is observed
between the Golden rule and the Literal Rule as even though initially the literal meaning of the
statute is taken into consideration if it is plain and logical but if there is any trace of absurdity or
uncertainty then the interpretation of the court would pay a significant role. But if there is a
possibility that there is more than one meaning of the wording in the statute, then any
addition, substitution or rejection should be done by the court modifying the language so that
the intention of the legislature is expounded. Some of the landmark Indian cases in which the
Golden Rule was used was with respect to the interpretation of the provisions like “Section 23
of the Representation of People’s Act, 1951” and Section 3A of the U.P. Sales Tax Act, 1948
which were dealt with in Narendra Kiadivalapa v. Manikrao Patil and Annapurna Biscuit
Manufacturing Co. v. Commissioner of Sales Tax, U P respectively. Therefore, the applicability of
the Golden Rule of Interpretation in the Indian cases and the foreign cases has a narrow and
wide approach which needs to be observed by the courts in their working.

The judicial criticism faced on the application of golden rule

The golden rule of interpretation should be adopted with caution because of certain reasons
which were discussed by the Court in the case of Lord Moulten in Vacher & Sons v. London
Society of Compositor. There is a possibility that this rule could develop into a conventional
jurisdictive critique of the legislature’s acts’ legality. The statutes must be interpreted on the
basis of the wordings of the law, and while the respective resultants of two competing
interpretations may occasionally direct us in our options, we can only do so if we are in a
position to convince ourselves that the words could not have been used as per the sense of the
suggested arguments by looking at the Act as a whole and comparing it to the prevailing law of
the land at the time of the enactment of the legislation. The legal rights or laws which are
formulated for the advantage of the community at large may come in struggle with the
individual interest of the public due to which it may cause injustice in the form of repugnancy
or absurdity. The Apex Court in the case of State Bank of India v. Shri N. Sundara Money has
judged that the duty of the courts of justice is to take care of the rights of the public at large
instead of individual rights. If the words of the statute are absurd in their nature, then they
should even come under the term of repugnancy in order to use the Golden Rule due to which
the scope of the term is wide.

The Golden Rule is considered to be an old law which has been used since the 16th century,
when British law was the fundamental basis for law and parliamentary sovereignty had not yet
been constituted. It is contended that it gives the unelected judiciary too much jurisdiction and
responsibility, which is undemocratic in nature. The Golden Rule also clearly violates the law of
the land by constructing a crime after the occurrence of the events, as observed in in Smith v
Hughes and Elliot v Grey. It encroaches on the separation of powers by assigning judges a
legislative role, and judges can bring their own opinions, conscience, and preconceptions to a
matter, as seen in the case of DPP v Bull and Smith v Hughes.

Case laws

Tirath Singh v. Bachittar Singh, AIR 1955 SC 850

In this case, there was an issue with regard to issuing of the notice under section 99 of
Representation of People’s Act, 1951, with regard to corrupt practices involved in the election.
According to the rule, the notice shall be issued to all those persons who are a party to the
election petition and at the same time to those who are not a party to it. Tirath Singh
contended that no such notice was issued to him under the said provision. The notices were
only issued to those who were non-parties to the election petition. This was challenged to be
invalid on this particular ground.

The court held that what is contemplated is giving of the information and the information even
if it is given twice remains the same. The party to the petition is already having the notice
regarding the petition, therefore, section 99 shall be so interpreted by applying the golden rule
that notice is required against non-parties only.

State of Madhya Pradesh v. Azad Bharat Financial Company, AIR 1967 SC 276, Issues of the
case are as follows.

A transporting company was carrying a parcel of apples was challenged and charge-sheeted.
The truck of the transporting company was impounded as the parcel contained opium along
with the apples. At the same time, the invoice shown for the transport consisted of apples only.

Section 11 of the opium act 1878, all the vehicles which transport the contraband articles shall
be impounded and articles shall be confiscated. It was confiscated by the transport company
that they were unaware of the fact that opium was loaded along with the apples in the truck.

The court held that although the words contained in section 11 of the said act provided that the
vehicle shall be confiscated but by applying the literal rule of interpretation for this provision it
is leading to injustice and inequity and therefore, this interpretation shall be avoided. The
words ‘shall be confiscated’ should be interpreted as ‘may be confiscated’.

State of Punjab v. Quiser Jehan Begum, AIR 1963 SC 1604, a period of limitation was
prescribed for, under section 18 of land acquisition act, 1844, that an appeal shall be filed for
the announcement of the award within 6 months of the announcement of the compensation.
Award was passed in the name of Quiser Jehan. It was intimated to her after the period of six
months about this by her counsel. The appeal was filed beyond the period of six months. The
appeal was rejected by the lower courts.

It was held by the court that the period of six months shall be counted from the time when
Quiser Jehan had the knowledge because the interpretation was leading to absurdity. The court
by applying the golden rule allowed the appeal.

Harmonious Construction

According to this rule of interpretation, when two or more provisions of the same statute are
repugnant to each other, then in such a situation the court, if possible, will try to construe the
provisions in such a manner as to give effect to both the provisions by maintaining harmony
between the two. The question that the two provisions of the same statute are overlapping or
mutually exclusive may be difficult to determine.
The legislature clarifies its intention through the words used in the provision of the statute. So,
here the basic principle of harmonious construction is that the legislature could not have tried
to contradict itself. In the cases of interpretation of the Constitution, the rule of harmonious
construction is applied many times.

It can be assumed that if the legislature has intended to give something by one, it would not
intend to take it away with the other hand as both the provisions have been framed by the
legislature and absorbed the equal force of law. One provision of the same act cannot make the
other provision useless. Thus, in no circumstances, the legislature can be expected to contradict
itself.

Cases –

Ishwari Khaitan Sugar Mills v. State of Uttar Pradesh, in this case, the State Government
proposed to acquire sugar industries under U.P Sugar Undertakings (Acquisition) Act, 1971.
This was challenged on the ground that these sugar industries were declared to be a controlled
one by the union under Industries (Development and Regulation) Act, 1951. And accordingly,
the state did not have the power of acquisition of requisition of property which was under the
control of the union. The Supreme Court held that the power of acquisition was not occupied
by Industries (Development and Regulation) Act, 1951. The state had a separate power under
Entry 42 List III.

M.S.M Sharma v. Krishna Sinha, AIR 1959 SC 395.

Facts of the case are as follows- Article 19(1)(a) of the Constitution provides for freedom of
speech and expression. Article 194(3) provides to the Parliament for punishing for its contempt
and it is known as the Parliamentary Privilege. In this case, an editor of a newspaper published
the word -for- word record of the proceedings of the Parliament including those portions which
were expunged from the record. He was called for the breach of parliamentary privilege.

He contended that he had a fundamental right to speech and expression. It was held by the
court that article 19(1)(a) itself talks about reasonable freedom and therefore freedom of
speech and expression shall pertain only to those portions which have not been expunged on
the record but not beyond that.

Types of statutes:-

Codified statutory law can be categorized as follows-

Codifying statutes

The purpose of this kind of statute is to give an authoritative statement of the rules of the law
on a particular subject, which is customary laws. For example- The Hindu Marriage Act, 1955
and The Hindu Succession Act, 1956.

Consolidating statutes
This kind of statute covers and combines all law on a particular subject at one place which was
scattered and lying at different places. Here, the entire law is constituted in one place. For
example- Indian Penal Code or Code of Criminal Procedure.

Declaratory statutes

This kind of statute does an act of removing doubts, clarifying and improving the law based on
the interpretation given by the court, which might not be suitable from the point of view of the
parliament. For example- the definition of house property has been amended under the
Income Tax (Amendment) Act, 1985 through the judgement of the supreme court.

Remedial statutes

Granting of new remedies for enforcing one’s rights can be done through the remedial statutes.
The purpose of these kinds of statutes is to promote the general welfare for bringing social
reforms through the system. These statutes have liberal interpretation and thus, are not
interpreted through strict means. For example- The Maternity Benefits Act, 1961, The
Workmen’s Compensation Act, 1923 etc.

Enabling statutes

The purpose of this statute is to enlarge a particular common law. For example- Land
Acquisition Act enables the government to acquire the public property for the purpose of the
public, which is otherwise not permissible.

Disabling statutes

It is the opposite of what is provided under the enabling statute. Here the rights conferred by
common law are being cut down and are being restrained.

Penal statutes

The offences for various types of offences are provided through these statutes, and these
provisions have to be imposed strictly. For example- Indian Penal Code, 1860.

Taxing statutes

Tax is a form of revenue which is to be paid to the government. It can either be on income that
an individual earns or on any other transaction. A taxing statute thus, levies taxes on all such
transactions. There can be income tax, wealth tax, sales tax, gift tax, etc. Therefore, a tax can be
levied only when it has been specifically expressed and provided by any statute.

Explanatory statutes

The term explanatory itself indicates that this type of statute explains the law and rectifies any
omission left earlier in the enactment of the statutes. Further, ambiguities in the text are also
clarified and checked upon the previous statutes.
Amending statutes

The statutes which operate to make changes in the provisions of the enactment to change the
original law for making an improvement therein and for carrying out the provisions effectively
for which the original law was passed are referred to as amending statutes. For example- Code
of Criminal Procedure 1973 amended the code of 1898.

Repealing statutes

A repealing statute is one which terminates an earlier statute and may be done in the express
or explicit language of the statute. For example- Competition Act, 2002 repealed the MRTP Act.

Curative or repealing statutes

Through these statutes, certain acts which would otherwise be illegal are validated by curing
the illegality and enables a particular line of action.

Judicial activism:-
The concept of “judicial activism” is opposed to the idea of “judicial restraint.” Both of these
terms are frequently used to describe the assertiveness of judicial power, and they are also
used from the perspectives of personal and professional views, putting the courts in a position
to lean towards one of the views to play the appropriate role. The terms “judicial activism,”
“judicial supremacy,” “judicial absolutism,” “judicial anarchy,” and others are frequently used
interchangeably in the United States. The term “judicial activism” is also regarded as ascriptive.
This implies that the judges’ performance is based on their ideologies, opinions, values, and
interests.

The scope of judicial activism is so broad that no precise definition exists. It does not have a
statutory definition because each jurist or scholar defines it differently. Supporters of judicial
activism claim it to be a proper form of judicial review. In contrast, Thomas Jefferson refers to
it as the ‘despotic power’ of Federal Judges. According to V.D. Kulshrestha, judicial activism
occurs when the judiciary is charged with actually participating in the law-making process and
subsequently emerges as a significant player in the legal system.

In contemporary definite terms, judicial activism is frequently seen as a way to correct

executive faults by using democratic power within the limits of the Constitution. It is said that
judicial activism empowers judges to act as individual policymakers and independent trustees
on behalf of the citizens of the country, in addition to their traditional role. In general, judicial
activism refers to the judiciary’s proactive role in correcting errors made by the executive or
legislative branches to ensure the efficient coordination of all three crucial pillars.

The discussion above clearly demonstrates that the term “judicial activism” refers to a broader
concept. The meaning of the phrase is ambiguous. It is impossible to combine all of it into one
concise definition. There are numerous ways to define and comprehend judicial activism.
Judges of the Supreme Court and High Courts have rendered several contentious rulings over
the past few years that have sparked heated debate. However, it is still unclear exactly what is
meant by the term “judicial activism.”

Evolution of judicial activism in India

In the early years after independence, India’s courts were technocratic in nature. Although the
goal of justice did not always coincide with this fundamental aspect of how courts functioned,
the judiciary was more concerned with following the procedures that were expected of it. To
put it another way, the majority of judges at the time were not as creative and did not bother
to look for ways to carry out the goal of justice for which they held their positions. Some judges
in the British Empire and a newly independent India went out of their way to issue decisions
that are now regarded as foundational examples of judicial activism.

The beginning of judicial activism can be traced back to 1893 when Justice Mehmood of the
Allahabad High Court issued a dissenting decision that sowed the seeds of activism in India. The
case involved an undertrial who couldn’t afford legal representation. In his dissenting opinion,
he criticised the rule that appeals should be dismissed solely on the basis that the appellant is
unable to pay for the translation and printing of the record in English. This amounted to some
form of activism meant to defend the severely harmed undertrials. Although it didn’t sit well
with the English judges on the bench, J. Mahmood was forced to resign for using these tactics in
court.

Furthermore, the concept of judicial activism in India gained more traction in the late 1960s or
early 1970s, when Mrs. Indira Gandhi served as Prime Minister and Mohan Kumaramangalam, a
renowned attorney and legal luminary, served as the Union Minister. In order to better serve
the interests of the poorer sections of society, the late Mrs. Gandhi attempted to put into
practice her favourite slogan, “Garibi Hatao” (remove poverty), by abolishing the privy purses
and privileges granted to the former rajas and princes of the princely States of pre-independent
India and nationalising the 14 major banks. However, the conservative judiciary took it
personally and overturned her attempts.

Mrs. Gandhi responded strongly and unequivocally, viewing the Supreme Court of India’s ruling
in the Privy Purse abolition and bank nationalisation cases as an example of judicial overreach.
On the recommendation of Mr. Kumaramangalam, it is believed that the conservative and
senior Supreme Court justices who participated in the majority decisions in the aforementioned
cases were passed over for appointment to the position of Chief Justice of India. The
appointment of the dissenting judge, Mr. A.N. Ray, who was fourth in the line of seniority, led
to the resignation of the three senior judges (Justices Hegde, Shelat, and Grover). This served as
the foundation for the theory of judicial activism, which emerged as a result of the conflict
between the executive and the judiciary.

Early cases of judicial activism

The following Supreme Court rulings provide insight into the development of judicial activism in
independent India.
During the reign and dominance of British courts, the Supreme Court functioned as a
technocratic court, but it gradually began to take an activist stance. The first landmark case in
this regard was A.K. Gopalan v. the State of Madras (1950), in which a writ was filed to
determine whether detention without trial was a violation of fundamental rights under Article
14, 19, 21, and 22. The Supreme Court opined that the written Constitution contains the
authority for judicial review. Even though the challenge was unsuccessful, it did start a new
legal trend that became apparent in the years that followed.

Freedom of press

In the case of Sakal Newspapers Pvt. Ltd. v. Union of India (1962), the government sought to
regulate the number of pages in relation to the price of the newspaper in accordance with
the Newspaper Act of 1956 and order of 1960. The Supreme Court ruled that newspapers could
not be subject to the same regulations as other businesses because they served as a forum for
the exchange of ideas and information. This decision broadened the protections for free speech
provided by Article 19(1)(a) of the Constitution.

Reservation policy

In the case of Balaji v. State of Mysore (1963), the Supreme Court reasoned that economic
backwardness was the root cause of social backwardness. The Court distinguished caste from
class and ruled that caste should not be used to assess backwardness. Additionally, it was
decided that the reserved category’s percentage of the total should not exceed 50%. It was
decided that Article 14, as well as the subsets of Articles 15 and 16, must be complied with.
Similar limitations on the reservation were imposed by the Court in the case of Chitralekha v.
State of Mysore (1964).

Doctrine of prospective overruling

The doctrine of prospective overruling first appeared in the American legal system. It states
that a decision made in a specific case will only affect the future and will have no retrospective
effect on previous decisions. In Golaknath v. State of Punjab (1971), the Supreme Court of India
pioneered the idea of “prospective overruling” while addressing the constitutional validity of
the 17th Amendment to the Constitution and determined that Parliament lacked the authority
to amend Part III of the Constitution or to abridge any of the fundamental rights.

Doctrine of basic structure

In the case of Keshavananda Bharti v. State of Kerala (1973) , the Supreme Court issued a
decision that is regarded as a watershed moment in Indian constitutional jurisprudence. While
addressing the scope of the amending power conferred by Article 368 of the Constitution, the
Court developed the theory of “basic structure.” By a 7:6 majority, a Bench of 13 judges ruled
that Parliament had broad powers to amend the Constitution but that power must not abridge
or destroy the basic structure or basic framework of the Constitution.

Habeas corpus case

The case of ADM Jabalpur v. Shivkant Shukla (1976), in which Article 21 was brought up,
resulted in the most contentious Supreme Court decision regarding judicial activism. The
majority of the Bench hearing the case of ADM Jabalpur held that in cases of dire emergencies,
such as those that existed between 1975 and 1977, a legal procedure could be established,
following which even human life could be taken away. Although Justice Chandrachud, who
wrote the decision, faced criticism for penning a pro-government opinion, the legal theory he
advanced was an excellent illustration of judicial activism. Justice Chandrachud has interpreted
Article 21 in this manner and upheld the legality of legislation requiring acceptance in order to
maintain the country’s sovereignty if it is threatened by either internal or external aggression.

Some other cases

In the case of Maneka Gandhi v. Union of India (1978), Maneka Gandhi argued that the
government had violated her personal freedom by seizing her passport. The court ruled that
the seizure of the passports was unlawful. The A.K. Gopalan case ruling was overturned by the
Supreme Court, ensuring the legitimacy of personal liberty under Articles 14, and 21.

In Minerva Mills v. Union of India (1980), the Supreme Court rejected the attempt by the
government to overturn the Kesavananda Bharti decision and usurp unrestricted power to
amend the Constitution to its liking. As a result, the Court decided that judicial review is an
essential part of the legal system and that Parliament is not permitted to broaden the purview
of the previously granted limited powers.

Constitutional powers of the Supreme Court and High Courts in India

Judicial activism is the practice of using the courts’ authority to examine state actions.
According to Articles 32 and 226 of the Indian Constitution, the higher judiciary has the power
to consider any legislative, executive, or administrative action as unconstitutional and void if it
does so. One of the core provisions of the Indian Constitution is the right to judicial review.

Article 32 of the Indian Constitution

Article 32 of the Indian Constitution provides that every person has the right to directly file a
case with the Supreme Court of India for the enforcement of their fundamental rights. Any
fundamental right under Article 32 may be enforced by an order or writ issued by the Supreme
Court.

The Supreme Court held in Fertilizer Corporation Kamgar Union v. Union of India (1981) that the
Supreme Court’s authority granted by Article 32 is an important part of the fundamental
framework of the Indian Constitution because “it is meaningless to confer fundamental rights
without providing an effective remedy for their enforcement, if and when they are violated.” It
cannot be suspended, even in an emergency. In many cases, the Supreme Court has
increasingly used a very liberal interpretation of Article 32 to uphold fundamental rights even
when faced with private entities performing public duties.

Article 226 of Indian Constitution

Article 226 of the Indian Constitution provides that the High Courts have the power to issue any
suitable order or writ for the enforcement of basic rights and other legal rights. In this case, it
appears that the High Court’s jurisdiction under Article 226 goes beyond the Supreme Court’s
jurisdiction under Article 32. Articles 32 and 226 form the foundation of the Indian Constitution.
Furthermore, the High Court was also granted authority over lower courts, tribunals, and
special courts by Article 227.

Article 136 of the Indian Constitution

In addition, the Supreme Court may grant special leave to appeal any judgment, decree,
determination, sentence, or order made by any court or tribunal in any cause or matter
under Article 136 of the Indian Constitution. In situations where there has been grave injustice
or there is a significant legal issue, the Supreme Court uses its unique authority.

With the discretionary authority provided by Article 136, a case may be decided in accordance
with justice, equity, and good conscience. However, it needs to be used carefully and with
caution. In Pritam Singh v. the State (1950), the Supreme Court ruled that the broad
discretionary power granted by Article 136 should only be used in exceptional circumstances.

Additionally, the Supreme Court created the idea of the curative petition in the case of Rupa
Ashok Hurra v. Ashok Hurra (2002), while debating whether an aggrieved person has any right
to relief even after the Supreme Court’s final decision.

Article 142 of the Indian Constitution

Article 142 of the Indian Constitution, which gives the Supreme Court the authority to issue an
order to ensure full justice in the case at hand, is the most significant provision in relation to
judicial activism. The Supreme Court’s decision in M Siddiq (D) Thr Lrs v. Mahant Suresh Das and
Ors (2019), also known as the Ram Janmabhoomi/Babri Masjid case, overturned the Allahabad
High Court’s (2010) ruling in accordance with Article 142 of the Indian constitution, is an
illustration of such an order.

The Supreme Court of India has the authority to enact laws under Article 142 of the Indian
Constitution, despite the fact that the Parliament of India retains the primary authority to do
so. The order will be in effect until Parliament passes legislation to address the problem, but it
should be noted that this Article can be invoked when there is a gap in the law or the order is in
the public interest.

PRESUMPTIONS IN STATUTORY INTERPRETATIONS:-

Presumption as to jurisdiction:-
The court of law has been assigned powers to deal with the cases before it. Different powers
are given to different kinds of courts or judicial bodies; e.g., the civil courts have the power
to decide only on cases of civil nature. Such powers of a court of law to deal with matters
are also called the jurisdiction of the court. Thus, the jurisdiction of a court is the power of
that court to hear and determine the subject matter in controversy between the parties to
the suit.
It is important to note that the court of law is conferred with such jurisdiction only according to
a statute; e.g., the jurisdiction of the civil court is as per Section 9 of the Code of Civil Procedure
of 1908, to try all suits of civil nature.

This article discusses how to interpret statutes that confer jurisdiction on the courts and the
principles related to the interpretation of such statutes.

Meaning of jurisdiction

Jurisdiction means the authority or power by which a court can decide a matter as per the
provisions of statutes. If a court declaring a judgement for any dispute does not have
jurisdiction over such a dispute, then its judgement is null and can be ignored.

Types of jurisdictions

The jurisdiction can be of many types, as follows:

 Territorial jurisdiction: It defines the area within which the court of law can exercise its
powers. For example, the High Court of Bombay has territorial jurisdiction over the
states of Maharashtra and Goa.

 Pecuniary jurisdiction: It explains the extent of the amount of money involved in a

dispute that a court can handle. E.g., a court of the Civil Judge Senior Division can handle
cases with valuations up to 10 lakhs.

 Subject matter jurisdiction: This assigns specific matters to be dealt with by a court.
E.g., civil cases must be handled by the civil courts only.

In addition to the above types, superior courts also exercise original jurisdiction, advisory
jurisdiction, and appellate jurisdiction.

The jurisdiction of courts can be interpreted with the help of a few basic principles, which talk
about the exclusion of jurisdiction, the jurisdiction conferred by common law, and specific
statutes.

General principles affecting jurisdiction of courts

Exclusion must be explicitly expressed or clearly implied

This is the first and foremost principle related to the interpretation of the jurisdiction of courts.
It simply means that if there is any exclusion or negation pertaining to the jurisdiction, then it
must be very clearly explained in the provision and no ambiguity related to such an exclusion
can be allowed.

Therefore, the exclusion of the jurisdiction of civil courts and conferring jurisdiction on tribunals
for specific matters must be strictly construed.
E.g., Section 8 of the Family Courts Act of 1984 excludes the jurisdiction of civil courts when
there is a family court.

In the case of H. H. Maharajadhiraja Madhav Rao … vs. Union of India (1970), the Supreme
Court of India held that the people have a right, unless expressly or impliedly barred, to insist
on free access to the courts of general jurisdiction. Also, the rule against exclusion of
jurisdiction is applicable only when two or more constructions are possible and not where the
legislative intent is clear.

Three classes of cases

It is the power of the legislature to confer the jurisdiction of civil courts partly or wholly on any
other tribunal for the purpose of addressing specific subject matter.

Such legislative power can be exercised by enacting specific statutes for assigning jurisdiction to
any particular tribunal by completely keeping aside or in parallel to the jurisdiction of civil
courts conferred by the common law.

According to Willes J., there are three classes of cases in which liability might be established,
founded upon the statutes.

1. When the liability is affirmed by a statute that provides a special form of remedy but is
different from the remedy provided in the common law, unless the statute contains
words that expressly or by necessary implications exclude the common law remedy, the
parties suing have the option to pursue either of the remedies.

2. When the statute gives the right to sue only and provides no remedy, then the party can
only proceed as per the common law to avail of any possible remedy.

3. In other words, it simply means that between the statute and the common law, if only
the common law is providing the remedy, then the party can proceed with the common
law and thus, there will be no confusion. When no liability exists under the common law
but is created by a statute that also provides for special remedy, then such remedy by
the statute must be followed.

In the case of The Premier Automobiles Ltd. vs. Kamalakar Shantaram Wadke (1973), the
Supreme Court of India held that if an industry dispute relates to the enforcement of any right
or an obligation under the Industrial Disputes Act, 1947, then the only remedy available is to
get adjudication under this Act and not any other act.

Cases of breach of statutory duties

Whether a statutory duty gives rise to a private law cause of action depends upon the
construction of the relevant statute. The Supreme Court of India has accepted the rule that
where a specific remedy is provided, it deprives the person who insists upon any other remedy.
For example, if a penalty is provided for a breach of statutory duty as per a statute, then it may
be regarded as the only way of enforcing the duty.
The general principle is that the remedy provided by the Act that creates obligations is exclusive
and is not without exception. Out of general rule and exception, which will prevail in a
particular case depends on the scope and language of the act.

In the landmark case of Black v. Fife Coal Co., Ltd. (1908), the House of Lords held that the
penalty clause of the Coal Mines Regulation Act, 1887, does not take away the rights of injured
persons as per the Act and they can also enforce civil liability against the employer.

Let us try to understand how to interpret the extent to which the exclusion of jurisdiction can
occur and what elements can be helpful in such interpretation.

The extent of exclusion

The extent of exclusion can be interpreted with the help of the following three elements:

Construction of exclusionary clauses

The court of law must refer to the clause specifically talking about the exclusion without any
ambiguity. Any other construction contrary to the clause would lead to nullity.

In the case of United Bank of India vs. Debts Recovery Tribunal and Ors. (1999), it was held by
the Supreme Court of India that with the object of speedy adjudication of certain matters that
are widely defined, the jurisdiction is conferred on tribunals and the jurisdiction of normal
courts is excluded, so the wide language used can’t be narrowly construed.

Cases of nullity

This basically talks about the cases in which an order passed by a tribunal can be held null. This
issue was addressed by the Apex Court in Smt. Ujjam Bai vs. State of Uttar Pradesh (1961). The
Supreme Court of India held that an adjudication by a tribunal is void if:

 Action is taken under an ultra vires act.

 The subject matter is beyond its competence and it has no authority to pass the order.

 Jurisdiction is assumed by wrongly deciding jurisdictional questions of law or fact.

 Adjudication is in violation of fundamental principles of judicial procedure.

Rule of conclusive evidence

The legislation has the power to enact a statute to declare something as conclusive proof to
such an extent that it becomes a non-justiciable matter.

E.g., if a legislative enactment proof of A is made conclusive evidence of B, then the court is
bound to consider the existence of B the moment it realises the existence of A. Such evidence
cannot be questioned in court as it becomes conclusive evidence.
In the case of Lilavati Bai vs. The State of Bombay (1957), the Supreme Court of India held that
the Bombay Land Requisition Act empowers the state government to requisition any building if
the owner or tenant is not residing in the building for a continuous period of six months and the
state government can make a declaration for such a requisition. In this case, the declaration so
made is conclusive evidence.

Along with the above conditions, it is also pertinent to understand some presumptions as to
the jurisdiction of courts when encountering international regulations.

Presumptions regarding the jurisdiction of courts

 In the process of interpreting any municipal law, if it is found that such interpretation is
in conflict with any international law, then the court will not give it such an effect.

In the case of Kesavananda Bharati.. vs. The State of Kerala and Anr. (1973), the Chief Justice of
India, Sikri, observed that according to Article 51 of the Constitution of India, we must foster
respect for international law and treaties.

 There is a presumption that an Act of Parliament generally applies within its territory
only unless provided otherwise. However, in the case of A.H. Wadia vs. Commissioner of
Income Tax (1948), the Bombay High Court held that in the case of a legislature, the
question of extra-territoriality of enactment can never be raised in the municipal court
as a ground for challenging its validity. The legislature may not recognise the rules of
international law, but these are the questions of policy with which domestic courts are
concerned.

 The jurisdiction of superior courts is conferred by the Constitution of India and not by
any statutory enactment. Hence, it cannot be taken away by simply enacting a statute. It
is also important to note that the appellate and revisional jurisdiction of superior courts
should not be mistaken for being excluded simply because the subordinate courts enjoy
special jurisdiction.

Conclusion

In India, there are various statutes in operation to decide on the jurisdiction of various courts
and tribunals, e.g. Family Courts Act for Family Court, Income Tax Act for Income Tax Tribunal,
etc. Due to the complexity of the judicial system, it has become necessary to interpret the
statutes with care not to offend the jurisdiction of other authorities and also to avoid nullity.

The efficient observance of principles for interpreting the jurisdiction of courts will definitely
help avoid loss of time and money. Moreover, it is also important to understand the jurisdiction
of superior courts as conferred by the Constitution of India and one must not confuse it with
the exclusion of jurisdiction.

Presumption as to the prospective operation of the statutes:-

Laws are made in any country to punish wrongdoers for the heinous crimes they might commit.
These are generally formulated when there are increased instances of people being left scot-
free despite committing an offence due to the lack of proper legal provisions. A prime example
of this is the anti-defection law, introduced in 1985 owing to mass defections. As a result, these
laws are applicable to similar crimes that might be committed in the future. However, there
have been several instances in which the newly formulated or amended laws could be used to
hold a person liable for offences committed before the introduction of that law as well. These
types of laws or amendments are very rarely found in any country and are known as
retrospective laws or statutes.

Retrospective laws can generally be made for both criminal as well as civil offences. In recent
times, such legislation has become a topic of debate. While certain scholars are of the opinion
that such legislation directly violates the rights of the people, others feel it is necessary that the
wrongdoers get punished even though they committed a wrongful act that was unrecognized at
that point in time owing to the lack of any statutory provisions. This article will delve deeper
into all these aspects and resolve the existing ambiguities in such laws.

What is retrospective operation of statutes

The term ‘retrospective’ essentially means speculating or looking into the events or incidents
that have taken place in the past. When any law that was already existing is changed, altered,
or some portion of it is removed, it doesn’t remain the same as it was previously. However, the
new changes still have an influence on the events that occurred in the past. In other words, if a
person commits an act that was not considered to be an offence at that point under any
legislation, but becomes one after some changes in the existing laws or the introduction of a
new law, the person could be held liable even for the acts committed by him in the past that
are now an offence.

This operation of a statute acts contrary to the general perception that any law is introduced to
consider the crimes that might be committed in the future. When a statute operates
retrospectively, however, the new law can be applied to the facts or the actions that were
carried out even before such a law had been proposed. When such a statutory provision is
introduced which aims to consider past actions as well, it is clearly stated that the act was said
to be in operation from the given date in the past. From that date forth, all the offences would
be included within the purview of the statute and the people would be punished. These
statutes are also known as ex-post facto laws. There can be four different scenarios that might
arise when retrospective legislation is introduced.

Recognition of crime

In this scenario, if a person carries out an act that was not wrongful at that point of time but
later on, due to the passing of legislation recognizing the same act as wrongful, he could be
held liable. This would happen when the law has a retrospective operation, making the person
liable for acts committed in the past that are wrongful or criminal in nature, due to the
introduction of legislation or a statute.
Removal of a crime

In a very rare scenario, ‘if a person has been sentenced for around 7 years for committing any
wrongful act, but 2 years later, the act committed by him is no longer unlawful with a
retrospective impact, the person could be directly released.’ It is a very rare situation to actually
happen that an act previously declared unlawful becomes a legal act.

An example of this is the decriminalization of Section 377 of the Indian Penal Code, 1860, which
stated that it had declared homosexuality a criminal offence. It is applied retrospectively to all
the citizens who were criminally charged because of their sexual orientation before the
introduction of this Act.

Reduction in punishment

Under this scenario, if the person has been punished for an act under any given statutory
provision but later on, some changes are made, leading to a reduction in the period of
punishment. This is a situation of a retrospective law dealing with amnesty to decriminalize
certain acts and grant a pardon to the wrongdoer. A person serving a prison sentence for a
specified period will have the punishment reduced owing to the same.

An example of this is the Amnesty Scheme. The government may introduce it to reduce the
payment of the late fee for tax filing. This would reduce the punishment for the late payment of
taxes.

Increase in punishment

When an existing law is amended with a retrospective impact to bring a wrongful act into a
more severe category than it was while being committed, the sentence or the term of
punishment might be increased for the wrongdoer. This might involve an increase in penalties,
increasing the fines payable, increasing the sentence of imprisonment, or any other factor.

These are some of the general impacts that a statute with a retrospective operation might have
on a person who committed a wrongful act recognized by the statutes later on.

General application of retrospective operation of statutes

Substantive laws

Retrospective laws are generally applied in a country to either increase or decrease the
punishment for any particular crime. They may be placed into a more serious category or
reduce the punishment of the crime, thereby reducing their sentence. However, the treatment
of retrospective laws also varies for the various laws. A retrospective operation can only be
given to a statute affecting the substantive rights of the people and could be made applicable to
the events that took place in the past. For example, if a person committed a crime 2 years ago,
which was held to be a punishable offence, the act now is no longer a crime with a
retrospective effect. It would be applicable to the person and he would be released. This is an
example of a retrospective operation on substantive law.
Procedural laws

On the other hand, the above-mentioned is not applicable to procedural laws. The procedural
laws generally have a retroactive operation and not a retrospective operation. The retroactive
operation essentially means that the statute introduces a new obligation or transaction and, at
the same time, impairs certain vested rights. Hence, the retrospective operation of laws applies
only to the substantive laws and not to the procedural ones.

Declaratory laws

A declaratory statute refers to a statutory provision that aims to remove any ambiguities
related to prior law, either by explaining the previous statute or by reconciling the conflicts in
various judicial decisions. The declaratory laws, as a result, have a retroactive operation as they
aim to improve the prior laws. It is only when the rights are vested or the litigation is settled
that they are applied retrospectively, as stated in the case of Commissioner of Income Tax v
Sriram Agarwal (1986).

Explanatory laws

Explanatory statutes are also very similar to declaratory statutes and have a retrospective
application. These statutes aim to explain the law and rectify all the omissions that existed in
the previous laws.

Criminal applicability of retrospective operation of statutes

Retrospective laws can certainly be made for criminal acts. However, these are not encouraged
in India. This is so because holding a person liable for an act committed by him in the past,
which was not unlawful at that point but now is, would be clearly unjustified. Most of the
interpreted legal provisions state that the punishment for the offences is prohibited from
having a retrospective effect. Only if stated in an implied manner with the appropriate
intention, the new punishments introduced under the laws are allowed to have a retrospective
impact.

Difference between retrospective laws and ex-post facto laws

Though both the retrospective and ex-post facto laws might have the same effect most of the
time, there are slight differences that exist between them. While all the ex-post facto laws are
necessarily retrospective laws, all retrospective laws are not ex-post facto laws. While ex-post
facto laws are prohibited in India, there is no such express prohibition on retrospective laws.
There are several retrospective laws that aren’t ex-post facto laws that are allowed to be
introduced for the purpose of amnesty in taxation, criminal punishment, etc. The retrospective
laws only look backward at the events of the past, but the ex-post facto laws act on the things
that are in the past. The retrospective laws aim to focus on acts committed in the past before
the commencement of the statute. On the other hand, any ex-post facto law might impose
various new obligations on the transactions or any act committed by an individual or impair the
vested rights.
These are the major differences between ex-post facto laws and retrospective laws. In most
situations, these terms can be used synonymously. Yet, there are several laws that can have a
retrospective operation but can’t be ex-post facto laws, such as the amnesty schemes of
taxation.

Ex post facto laws Retrospective laws

All retrospective laws are certainly not ex

All ex post facto laws are to be necessarily
post facto laws. These are a bigger set of
retrospective laws.
which ex post facto laws form a part.

Retrospective laws, if explicitly mentioned,

Ex post facto laws are prohibited to be
are allowed to be introduced, however, with
formulated in India.
certain restrictions.

Ex post facto laws impose various new

Retrospective laws focus on all the acts
obligations on the transactions or acts
committed in the past before the
committed by an individual or impair certain
commencement of the statute.
vested rights.

Applicability of retrospective operation of statutes in India

In India, the retrospective operation of any statute is prohibited for any civil offence.
The Constitution of India doesn’t permit a retrospective operation of any given act unless there
is any implication in law stating that the law that is there has to be retrospective in nature. Any
Act that is introduced in India that is held to be retrospective but has not been specifically
implied in the act, is said to be unconstitutional as well as void.

Making ex-post facto laws is completely prohibited under the fundamental rights stated in the
constitution of India. Under Article 20(1) of the Constitution, it has been clearly stated that
there could be no retrospective impact of the formulated laws on offences committed before
the introduction of the statute. The primary objective of this article is to ensure that the law
and order are maintained properly and that there is absolutely no illegal detention taking place.
The person who carried out an act at that point was completely aware that it was not unlawful,
and later on, if it is declared to be unlawful, it is clearly violative of his rights. The person won’t
have knowledge of any sort that the act he committed would be in the future declared unlawful
or illegal and hence should not be punished.

Examples of retrospective legislation in India

There are various examples of retrospective legislation in India. Though these laws primarily
deal in the field of taxation, there have been several other laws introduced in India.
One of the examples of such legislation is the Karnataka Scheduled Caste and Scheduled Tribe
(Prohibition of Transfer of Certain Lands) Act, 1978, which was retrospective in nature. This Act
aimed to prohibit the transfer of land granted by the government to people belonging to the
Scheduled Castes and the Scheduled Tribes. This law was also applicable on the land under the
ownership of the Scheduled Castes and the Scheduled Tribes before the enactment of this law.
Nobody was even allowed to purchase the land owned by the people belonging to SC and ST
communities.

Another major legislation was the Tamil Nadu Land Acquisition (Revival of Operation,
Amendment, and Validation) Act, 2019, whose constitutional validity was recently upheld by
the Supreme Court, which was going to be applied retrospectively till the year 2013. The
reasoning behind this decision of the Supreme Court was that the basic principle of the
legislature is to protect the public interest at large. The legislature is at the helm of protecting
the rights of the people and ensuring a democratic polity among the people. Hence, any step
taken towards achieving this purpose is considered to be lawful, and the contention raised by
the petitioner that it violated the principle of the separation of powers is completely invalid. For
the public good, any law can be operated retrospectively without any stoppage since the law
doesn’t completely prohibit the same.

However, if any retrospective law is to be introduced, it is only allowed for criminal matters and
not in the case of civil matters.

Retrospective laws for taxation

The retrospective laws are generally utilized for tax-related matters, such as the Amnesty
scheme. Those who fail to file their taxes on time are provided with some rebate, especially in
the times of Covid-19. There were crores of people who lost their jobs and many even went
bankrupt. Even small industrialists suffered a lot during this period. Many of them become
incapable of paying their taxes on time.

It is at this point in time that the government can make good use of retrospective statutes.
People would need to pay fewer taxes if the government amended the Income Tax Act, 1961 to
state fewer taxes to be paid with a retrospective effect. At the same time, this operation can be
used to impose some justified charges on transactions that have been carried out in the past.
Such retrospective taxes help in rectifying any deviations in the taxation policies that previously
allowed businesses to benefit from any kind of loophole.

There were several amendments that took place in this Act that were retrospective in nature.
An example of the same is explanation 7 to Section 9(1)(i) of the Income Tax Act, 1995, which
had to be applied retrospectively. It was declared by the Court in the case of Augustus Capital
PTE Ltd v DCIT (2020) that explanation 5 of the Income Tax Act was applied retrospectively for
the removal of any doubt with respect to the payment of the interest amount. Later
explanations 6 and 7 were introduced that had to be read along with explanation 5 for
providing further clarity regarding the accrued income. Since explanation 5 was applied
retrospectively, the same should be the treatment of explanations 6 and 7. Hence the assessing
officer, in this case, was ordered by the Court to read the concerned explanation 7 of Section
9(1)(i) as applicable from the year under consideration and that there shall be no further
additions or questions regarding the same.

Another landmark case with regard to Section 9 of the Act is Ishikawajima Harima Heavy
Industries Ltd v. Director of Income Tax (2007). Section 9 of the Act gave a whole new
dimension to the concept of ‘income deemed to have accrued in India’. The company
concerned in this case was involved in selling its products in the Indian market but was
incorporated in Japan. There was a question in this case regarding the tax treatment of the fees
for technical services that were to be paid by the non-resident companies in India. The Apex
Court in this particular case held that two conditions are to be fulfilled for explanation 7 of
Section 9 of this Act to be made applicable. The services from which the company is earning
money on which the taxes are to be imposed must be rendered as well as utilized in India. If
both these conditions are satisfied, the income is said to be accrued in India.

This judgement completely reversed the general perception that if the technical or consultancy
services were provided in India, the company would be liable to pay the taxes regardless of
whether these services were rendered outside India or not.

Further, the retrospective operation can also be used when the policies in the present and the
past were very different owing to the fact that firms were required to pay a lesser amount of
tax. In order to create a level playing field and to ensure justice and fairness in the payment of
taxes. The most recent example of a retrospective taxation law is the policy under the Union
Budget 2022-23. It brought about certain amendments to the Income Tax Act, 1961, which
carried a retrospective impact. The examples of various amendments brought about under the
Income Tax Act, 1961 are as follows.

1. The government allowed an exemption on the amount received for the medical
treatment and on the account of death due to Covid-19 retrospectively from April 2020.

2. The gifts and freebies provided to the doctors are not going to be treated as business
expenditures under Section 37 of the Income Tax Act of 1961. Further, even capital
expenditures of a personal nature are not to be reflected as expenditures under this
given act.

3. There was also a retrospective change brought about in the financial year 2005-06
wherein it was stated that any form of cess or surcharge couldn’t be deducted in the
form of expenditure.

4. With respect to the funding of companies, it has also been laid down in the budget that
the source of funding for any given loan or borrowing for its recipient is going to be
reflected only if the source of funds is appropriately explained in the hands of the
creditor. This measure is retrospectively going to impact all the major business ventures
in their funding processes. It would have a much more adverse impact on the Startups if
the creditor is not a venture capital fund that is legally registered with the SEBI
(Securities and Exchange Board of India). Earlier, only the PAN of the creditor by the
taxpayer would suffice, but now this is no longer the case. The recipient is required to
 prove that it is the right source of income and that the creditor’s net worth was
appropriate to provide this amount.

Hence, the retrospective operation of the various amendments in the Income Tax Act, 1961 has
played a vital role in ensuring the fair payment of taxes by every individual on time. Secondly, it
has facilitated the introduction of amnesty schemes to provide some relief to small
businessmen and industrialists.

Relevant judgements

Commissioner of Income Tax v. Hindustan Electrographite Ltd (1998)

In this particular case, the assessee was a public limited company, which had filed the income
tax. Apart from that, there was an additional amount representing the cash compensatory
support that wasn’t offered to the tax as an adjustment. It was not required under the Act
prevailing in 1989. However, there was the introduction of the Finance Act of 1990 with a
retrospective effect, stating that the tax is also required to be paid on cash assistance.

The suit was henceforth filed in the Court, stating that these provisions are penal in nature.
However, the Court in this case declared that the provisions of this Act were not penal and,
hence, this legislation can certainly be retrospective in nature. It is only a penal law on which
the retrospective operation can’t take place.

Garikapatti Veeraya v. N Subiah Choudhary (1957)

In this case, there was an issue in the appeal from the trial court to the Supreme Court. Since
the amount of the suit was Rs 11,000 but the amount required for an appeal before the High
Court was required to be Rs 20,000, the appeal was not allowed. In this case, the Court stated
that if there is an absence of any statement to show that the law has a retrospective operation,
it can’t be determined to be the same. Hence such laws also cannot change the existing laws
that are to be applicable for determining the validity of any claim in the Litigation.

Ratan Lal v. State of Punjab (1964)

In this particular case, a boy who was 16 years old was held liable for committing trespass and
for outraging the modesty of a 7-year-old girl. He was ordered to rigorous imprisonment by the
magistrate and a certain amount of fine was also imposed upon him. However, later on, the
legislation known as the Probation of Offenders Act, 1958, came into force, in which it was
stated that any person below the age of 21 should not be imprisoned. The Court in this case
held that any legislation could be operated in a retrospective manner for the benefit of that
person to reduce the punishment. Hence, any form of ex-post facto law which is required for
the benefit of the accused is not prohibited from being introduced retrospectively under Article
20(1) of the Indian Constitution.

Presumptions against the violation of international law:-

The guiding principle is that statutory provisions align with international law. Courts aim to
interpret laws in such a way that they don't conflict with international law, even if there is an
inconsistency between the two. Clarity and unambiguity of terms may allow for enforcing a
statute despite international and state laws being at odds. Parliament is presumed not to act in
violation of international law or treaty obligations.

The presumption exists that if India signs a treaty, it does not intend to breach said treaty
according to courts.

In the realm of international relations and law, one principle that is widely embraced is the
"presumption against the violation of international law." It is an expectation that states abide
by customary international law regulations and their international legal obligations.

This phenomenon is often exemplified by a country's adoption of a foreign policy measure or

implementation of a new law. The ambiguity revolving around whether this action adheres to
international law or contravenes it remains unclear. This leads to the assumption being made
that the said state's performance is not breaking any international laws. This assumption
translates to the idea that states act as per international law unless otherwise proved wrong.

As a rule, international law assumes that states uphold their legal responsibilities, though if
hard proof indicates otherwise, this notion can be debated. Consequently, sanctions or
penalties may be levied by international law due to a state's neglect to satisfy its commitments.

Stability in international relations can only be maintained through the presumption of

innocence. This is because it motivates states to comply with their international legal
obligations while shifting responsibility to those making accusations. The prevalence of
evidence is necessary to prove violations of international law and ensures that all parties
involved are responsible for their actions. This is why the presumption of innocence is crucial
for accountability.

Explanation
Near a controversial border, State A performs military drills, causing State B to claim violations
of international law and a threat to territorial sovereignty. Despite the protest, State A argues
its use of its own territory does not break any international laws.

The presumption is that State A follows international law and doesn't cross State B's
sovereignty, as per current events. To change this, concrete evidence is required from State B
that gives proof of State A's violation of international law. Without it, State A will still have the
advantage.

Important legal maxims : meaning, interpretation and judicial decisions

Ejusdem generis
There are certain general principles of interpretation that have been applied by the courts from
time to time and one of them is the construction ejusdem generis.

Literal meaning

Ejusdem generis is a Latin phrase that means ‘of the same kind’. It is used to interpret legislation
that is written in a haphazard manner. When a law mentions certain classifications of people or
things before referring to them in general, the general assertions only apply to the same people
or things who are expressly named. For example, if legislation mentions automobiles, trucks,
tractors, motorcycles, and other motor-powered vehicles, the term ‘vehicles’ does not include
aircraft since the list is limited to land-based transportation.

Interpretation of ejusdem generis

Words of a comparable type are referred to as ejusdem generis. The rule is that if two or more
words have a similar quality (e.g., they belong to the same class), any subsequent generic terms
should be interpreted as referring to that class only. Unless the context dictates otherwise,
generic terms should be given their natural meaning like all other words. However, when a
general term is followed by particular words from a different category, the general word may
be assigned a more limited meaning from the same category. As the legislature has revealed its
aim to that effect by employing the particular terms of a separate genus, the general statement
draws its meaning from the preceding special expressions.

The principle of ejusdem generis does not apply everywhere. If the context of law precludes the
use of this rule, it has no bearing on how broad phrases are interpreted. The concept of
ejusdem generis is based on the premise that if the legislature wanted generic terms to be
employed in an unlimited meaning, it would not have chosen specific words at all.

Judicial decisions based on this legal maxim and relevant paragraphs

1. Thakur Amar Singhji v. State of Rajasthan (1955)

The legitimacy of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 was
challenged in Thakur Amar Singhji v. State of Rajasthan (1955). It was claimed that the holders
of one of the tenures, known as Bhomichar tenure, were not jagirdars.

“We do not reach this conclusion on the basis of the argument that the word ‘Jagir’ in Article 31-
A of the Constitution should be read ejusdem generis with ‘other similar grants,’ because the
true scope of the ‘ejusdem generis’ rule is that words of a general nature following specific and
particular words should be construed as limited to things of the same nature as those specified,
and not the other way around, that specific words that precede are controlled by the general
words which follow.”

2. Lilavati Bai v. Bombay State (1957)

The petitioner in Lilavati Bai v. Bombay State (1957) was the widow of a tenant of certain
property, which she had deserted. The respondent requisitioned the premises after discovering
that it was unoccupied under Section 6(4)(a) of the Bombay Land Requisition Act, 1948, for the
public purpose of housing a government officer.

“The rule ejusdem generis, which was sought to be articulated in support of the petitioner, may
or may not apply. When the legislature used the words ‘or otherwise,’ it appeared to cover other
situations that may not fall within the scope of the previous sections, such as a situation where
the tenant’s possession has been terminated due to trespass by a third party. The legislation
wanted to address all potential scenarios in which a vacancy may arise for whatever cause. As a
result, rather than utilising the words ejusdem generis in conjunction with the previous
sentences of the explanation, the legislature used them in a broad meaning.”

Expressio unius est exclusio alterius

A Latin term literally meaning "the expression of one thing is the exclusion of the other".

This is a common law principle for construing legislation which holds that a syntactical
presumption may be made that an express reference to one matter excludes other matters.

Rule of noscitur a socii:-

Every provision of the statute as well as every word or phrase must be generally seen through
the lens of its context of its applicability, and not in isolation. Every part of the provision has to
be ascribed a certain meaning as well as effect in that context in which it is made. In this
background, to give effect to the elementary rule, the judiciary has developed the rule
of noscitur a socii.

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

Applicability of the rule

The applicability of this rule of interpretation arises when a word or phrase in question cannot
be interpreted in isolation and requires the words that surround it to also be understood in
order to better grasp the concept. Another legal maxim to substantiate the same is “qua non
valeant singular juna juvant” which stands for “words which are ineffective when taken singly
operate when taken conjointly”.
Scope of the rule

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

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

The next chapter explains the difference between the two doctrines of noscitur a
socii and ejusdem generis.

Issues to be dealt with

1. What is the difference between the rule of noscitur a sociis and that of ejusdem
generis in the Indian context?

2. How has the Indian judiciary used the rule of noscitur a sociis?

Rule of noscitur a socii and rule of ejusdem generis

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

To understand the difference between the two doctrines, the rule of ejusdem generis has to be
understood. In the case of Kavalappara Kottarathil Kochuni v. State of Madras, the applicability
of this rule has been stated. Here, it was said that the rule is only to be applied when there are
general words that follow other words, where these other words belong to a particular
category all those words are similar. It has also been held in this case that the rule “… is not an
inviolable rule of law, but is only permissible inference in the absence of an indication to the
contrary.”

This case law has explained the applicability of the canon of ejusdem generis well. According to
it, it applies in the circumstances where there is already a list or genus present, and not
otherwise. An example for the same would be that of the placement of a tomato in a grocery
list, for example. If the list reads, “tomato, potato, onion and garlic,” it is an indication of
tomato being treated as a vegetable; but when the same tomato is read along with “papaya,
apples, bananas, and melon,” it makes it clear that it is to be taken as a fruit. The rule
of noscitur a socii applies in cases where there is an ambiguity in the understanding of any word
and hence has to be understood in the context of the associated words. The rule of ejusdem
generis however is applicable in similar context, but only when that context consists of a
category or class of items. Another point of differentiation between the two rules is the fact
that the rule of ejusdem generis is applicable only when certain conditions are fulfilled, thereby
restricting the scope of the rule even further. These conditions are –

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

(2) the subjects of enumeration constitute a category,

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

(4) the general terms follow the enumeration, and

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

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

Application of the rule of noscitur a socii in the Indian judiciary

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

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

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

 In the case of State of Assam v. Ranga Muhammad, the court applied the rule for the
question of whether the HC had to be consulted by the Governor in the transfer of a
sitting Judge, and held that upon applying the rule of noscitur a socii in the instant case,
the word “posting” in the context of district judges was associated with the other words
of “appointments” as well as “promotions.” But these two words could not be
 interpreted to include “transfer” as well, and hence the Governor had to consult the HC
in this circumstance.

 Later, in the case of State of Karnataka v. UOI, clarification was sought for in respect of
Art.194 of the Constitution of India. The rule of noscitur a socii was applied to the
question – whether the Art. imposed powers on the legislature, or on the members of
the legislature. To answer this question, the court applied this principle to say that the
word in question (“powers”), got not only its meaning, but also its context from the
words that had been used in relation to it.

 In the case of Vania Silk Mills Pvt. Ltd. v. Commissioner of IT, Ahmedabad, the
understanding of S2(47) of the Income Tax Act 1961 was done with the help of the rule
of noscitur a socii. With the usage of this rule, the SC interpreted that the term
“transfer” and said that because the legislature had provided for examples such as sale
and exchange, the phrase “extinguishment of any rights therein” had to be interpreted
as an extinguishment of rights because of a transfer only, and that it cannot be said to
refer to termination of any other right either related to or unrelated to a transfer.

 In another case, the SC held that the meaning of the word “consumables” in S5B of the
Andhra Pradesh Goods and Services Act 1957 had to be read along with the words “raw
materials,” “component part,” “sub-assembly part,” as well as “intermediate part”. S5B
allowed for the tax to be imposed on raw material and the other words as given above.
Reading the word “consumables” in the context of these words, implies that the good
used must be as a means to obtain the final end product. But the natural gas that had
been used by the assessee was not used in the capacity of a consumable, and hence the
Court held that the concessional rate as given in S5B could not be availed by the
assessee.

 The entries in the Schedule(s) of the Central Sales Tax Act of 1956 and that of the
Central Excise Act of 1944 had been interpreted using the rule of noscitur a socii by the
SC in the case of Pardeep Agarbatti, Ludhiana v. State of Punjab and Ors. Here, it was
said that in the event of articles being grouped together in the Schedules, they were to
be interpreted together, for each item in the grouped entry was associated with the
other and also drew colour from the other words that had been used there too. It went
on to add that had there been no association to be interpreted, then the legislature
would not have grouped those items together too.

 The rule was used in another SC case, where the SC had interpreted that the words
“mineral,” “mineral oil,” and “ores” were all associated words and hence were to be
understood together. 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.
 One of the Rules of the Code of Civil Procedure, 1908 (Rule 2A) was also interpreted
using the rule of noscitur a socii in the case of Samee Khan v. Bindu Khan. The Hon’ble
Apex Court, after using the said rule concluded by saying: “Hence the words “and may
also” in Rule 2-A cannot be interpreted the context as denoting a step which is
permissible only as additional to attachment of property of the opposite party.”

 The case of Oswal Agro Mills Ltd. v. Collector, Central Excise the SC has interpreted the
case using this rule succinctly as “It is no doubt true that the doctrine of noscitur a socii,
meaning thereby, that it is a legitimate rule of construction to construe words in an Act
of Parliament with reference to words found in immediate connection with them i.e.
when two or more words which are susceptible of analogous meaning are clubbed
together, they are understood to be used in their cognate sense. They take, as it were,
their colour from each other, the meaning of the more general is restricted to a sense
analogous to a less general.”

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

 The meaning of the term “any sale held without leave of the court” was interpreted in
the association of the words “any attachment, distress, or execution put in force” in the
case of MK Jagannath v. Govt. of Madras. This interpretation meant that only the sale of
properties that were done with the intervention of the court were considered to be
within the scope of this section. Any other sale, such as a sale done to a creditor, as was
the facts of the case, was held to be outside the purview of this section because of the
fact that there was no intervention of the Court.

Theories of constitutional interpretation:-

The Seventh Schedule of the Indian Constitution contains three subject lists- Union list for
the centre, State list for the states and the Concurrent list for both, the centre as well as the
states. The lists lay down the subjects each legislature is competent to legislate on. This
well-defined scheme for division of powers is to ensure that no legislature trespasses while
exercising its powers and the sanctity of the Constitutional scheme for the division of
powers is preserved.

However, the actual working of our Constitution is a bit messier. The water-tight division of
powers laid down in the lists is bound to create conflicts since laws tend to deal with more
than one subject. When such conflicts arise, the courts take aid from various doctrines to
help resolve these conflicts. This article explains the doctrines used, what they stipulate and
the nuances of each of these.
Doctrine of Territorial Nexus

Under the Indian conception of federalism, a state law that has operation outside the given
state is invalid. The doctrine of territorial nexus is invoked to find out if the law in question
has an operation beyond its jurisdiction. This doctrine stipulates that:

1. Territory: The object to which a particular law applies does not have to be located
within the strict territory of the state. Instead, it needs to have a sufficient territorial
connection to the enacting state.

2. Subject: There needs to be a territorial nexus between the state enacting the law and
the law’s subject matter. The connection must be real and not illusory, as laid down
in Shrikant Bhalchandra Karulkar v. State Of Gujarat, 1994. Moreover, the liability
imposed must be pertinent and relevant to the connection.

State of Bombay v. RMDC, 1957

In the given case, a lottery was conducted via a newspaper. This newspaper had wide
circulation within the State of Bombay, but quite a bit outside the state too. The Bombay
Government levied a lump sum tax on lotteries. The tax extended to the circulation and
distribution of newspapers that were published outside the state. This tax was challenged in
court. The Apex Court reasoned that even though newspapers were published and had wide
circulation outside the state, collectors of the entry fees for the competition were within
Bombay. Thus, there was sufficient territorial nexus and the tax was held to be valid.

State of Bombay v. Narayandas Mangilal, 1957

In the mid-1950s, the Bombay legislature criminalized bigamous marriages, including

marriages entered into outside the state if one party was domiciled in Bombay. In the State
of Bombay v. Narayandas Mangilal, (1957), the Supreme court struck down this law due to
lack of sufficient territorial nexus concerning marriages performed outside the state, even if
one person lived in the state.

Doctrine of Harmonious Construction

The doctrine of harmonious construction applies to cases where provisions of the same
statute seem to contradict. The doctrine is based on the presumption that-

 The legislature did not intend to give one provision importance and consequently
neglect another; or

 To cause or maintain any contradiction between the two.

This doctrine was profusely explained in the case of Sultana Begum v. Premchand Jain,
(1996). The Hon’ble Supreme Court said that these conflicting provisions should be
understood in a way to ensure that neither is ignored. In Jagdish Singh v. Lt. Governor,
Delhi, (1997), it was held that this doctrine requires reading the statute as a whole
construing it in a way in which neither is ineffective.
Shankari Prasad v. Union of India, 1951

Shankari Prasad v. Union of India , (1951) addressed the objective of this doctrine. It said
that in the case of two articles that are widely phrased and conflict in their operation, the
doctrine of harmonious construction requires them to be controlled and qualified by the
other.

Ram Krishan v. Vinod, 1951

In the given case, there was a contradiction between the Representation of the People Act,
1951. Section 33 empowered government servants to nominate candidates seeking
election. However, Section 123 prescribed that no government servant can assist any
candidate to an election except by way of casting votes.

The Supreme Court harmoniously construed both the provisions. It allowed government
servants to nominate as well as vote for candidates. However, no other forms of assistance
could be provided.

Bengal Immunity Co. v. State of Bihar, 1955

The given case conceded the limits of this doctrine. It held that in cases of conflict between
provisions, they should be construed in a way in which both are effective and in harmony.
However, in case this harmony is not possible, the useless provision can be ignored if there
is no compulsion of its adoption.

Doctrine of Pith and Substance

Perhaps the most widely applied doctrine, ‘pith and substance’ means the ‘true nature and
character’. It is used to determine what the true nature of an enactment is and which list or
legislative domain it falls under. To determine this, the court needs to look at:

1. The enactment as a whole;

2. Its main objects; and

3. The effect and scope of its provisions.

If a legislature encroaches on the field of another legislature, the court looks at whether this
encroachment is in fact, in substance or merely incidental to the statute. The primary
essence and object are differentiated from its ultimate or incidental results.

In determining the true nature, the name given to the statute is immaterial. Even if the
purpose laid down in its Statement of Object and Reasons is wrong, it would not per se
render the statute invalid. Instead, the statute needs to be viewed as an organic whole.

This doctrine allows some flexibility to the rigid scheme of distribution of powers in the
Indian Constitution. The rationale provided is that if every slight or incidental encroachment
is struck down, the legislature’s power would be severely curtailed. and it would not be able
to carry out its duties.

Premchand Jain v. R.K. Chhabra, 1984

In case the encroachment is merely incidental, the act would not, as a rule, be invalid. This
was reiterated in Premchand Jain v. R.K. Chhabra, (1984). The Apex Court held that if an
enactment substantially falls within the powers conferred by the Constitution upon the
enacting legislature, it cannot be held to be invalid merely because it incidentally
encroaches on matters assigned to another legislature.

State of Bombay v. Narottamdas, 1950

In the given case, it was held that to save the incidental encroachment, it needs to be
proven that the pith and substance of the law fall within its enacting legislature. In other
words, the validity of the statute is not determined by the degree of encroachment (though
it is a relevant consideration) but by the true nature of the enactment. If the pith and
substance fall under the enacting legislature’s domain, the law is upheld.

Krishna v. State of Madras, 1956

In 1937, the Madras Prohibition Act was passed. Over a decade later, this act
was challenged for laying down procedures and principles of evidence for the trial of the
accused. The appellants claimed contradiction between the procedure and principles in the
madras act as opposed to the central Criminal Procedure Code, 1973. However, the court
upheld the law on the grounds that the given law was simply ancillary to the central one.
This law, in pith and substance, was related to intoxicating liquors, a matter under the state
list.

The given case embodies a censure of this doctrine. Critics claim it gives the judiciary too
much discretion. Courts are empowered to affix their interpretation of the character of law
and determine its validity.

Doctrine of Repugnancy

Article 254(1)

Article 254(1) stipulates that if a state law is repugnant, i.e., incompatible with a law that:

 the Parliament is competent to enact, or

 an existing law under the concurrent list.

Then, the central or existing law prevails over one made by the state. The state law is void
to the extent of such repugnancy. Which law was enacted earlier is not considered.

In the case of repugnancy, the repugnant provisions of the state law do not become ultra
vires. They simply eclipse. If the central law is repealed, they become operative again.
The doctrine of Pith and Substance is utilized to determine if the true nature falls to a
matter under the concurrent list. In case the repugnancy is to central law, it is considered if
the parliament intended to lay down an exhaustive code on the matter. If not, any
qualification or restriction can not be considered repugnant to the state law.

Article 254(2)

However, Article 254(2) can save a state law under the concurrent list if there arises any
repugnancy to a central law on the same matter. Presidential assent to the state act would
allow it to override any provisions of the central act. However, the inconsistent provisions
must be applied to the state only. Moreover, the laws must be on the same matter, not two
different fields. If there is no central law on the matter under the concurrent list, the state
law would stand.

While obtaining presidential assent, it needs to be specified that assent is sought for
repugnancy to a particular act. Failure would make the state law invalid. However, the
Parliament can not repeal any state law in the Concurrent list if it is not repugnant to the
central law on the same matter.

The Supreme court placed yet another limit on the state act. In Pt. Rishikesh v. Salma
Begum (1995), it held that if a state act has received the assent of the President and
subsequently, the centre enacts another law conflicting with the state act, the central law
would prevail.

Srinivasa Raghavachar v. State of Karnataka, 1987

The present case dealt with a state law restricting legal practitioners from appearing before
land tribunals. The state was held invalid on grounds of repugnancy to the Advocates Act,
1961.

Sukumar Mukherjee v. State of West Bengal, 1993

The West Bengal State Health Service Act, (1990) barred any member of the state health
service from carrying on private practices. This was disputed in Sukumar Mukherjee v. State
of West Bengal, (1993) on the grounds that it was repugnant to the Indian Medical Council
Act, 1956. Enacted by the centre under the concurrent list, the 1956 Act allowed any
practitioner on the Indian Medical Register to practice in any part of the country.

The Apex Court held that this case was different from the Srinivasa Raghavachar v. State of
Karnataka, (1987) case since legal practitioners did not, through a voluntary act of consent,
give up the rights to practice for joining the state service. In this case, they did. The state
law did not intend to regulate the medical profession in general, only its health service.
Thus, the state law was upheld.

Kumar Sharma v. State of Karnataka, 1990

The given case held that repugnancy must only concern a matter in the concurrent list.
Additionally, if the subject matters of the legislation were different, they would stand
together. However, the dissenting opinion claimed that the two provisions would “run on a
collision course”, and be irreconcilable. Thus, the state law must be struck down. The
doctrine of Pith and Substance does not need to be applied here.

Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of Tamil
Nadu, 1996

This case is one where repugnancy between a central and state statute is ambiguous. A
Tamil Nadu statute dealing with the affiliation of medical colleges was challenged on
grounds of repugnance against the Indian Medical Council Act. Both laws were enacted
under the concurrent list. However, the provisions of the state act did not collide with the
central one and it was possible to follow both.

However, the Court held that the parliament intended to lay down an exhaustive code on
the subject for the entire country. This made it repugnant to the state act, which was
consequently declared invalid.

Doctrine of Colourable Legislation

The doctrine of Colourable Legislation is based on the maxim ‘what cannot be done directly,
cannot be done indirectly’. It restricts legislatures from indirectly doing something which,
due to want of jurisdiction, they can not do directly. This encroachment may be direct or
indirect. In the case of the latter, the expression ‘colourable legislation’ is applied. In other
words, colourable legislation is a ‘fraud on the constitution’.

The court employs the doctrine of Pith and Substance to determine if the legislature is
competent to enact the disputed statute. The extent of encroachment is a relevant factor
while determining if the enactment is colourable legislation.

State of Bihar v. Kameshwar Singh, 1952

The current case was to dispute the constitutional validity of the Bihar Land Reforms Act,
1950. The law provided that rent for the landlord’s land, before the date of acquisition of
his holding, was to vest with the state. However, half of this was to be given to the landlord
as compensation.

The Supreme Court opined this was naked confiscation as taking of the whole and returning
a half means nothing other than taking half. While its purported object was to lay down
principles for compensation, the actual object was simply confiscation- a subject under the
concurrent list. The Bihar Land Reforms Act was thus a piece of colourable legislation and
hence, void.

Naga People’s Movement for Human Rights v. Union of India, 1997

In this case, the Supreme Court clarified that the doctrine of Colourable Legislation is
applicable only in cases where-

1. The real intention is camouflaged; and

2. With the motive to encroach into the domain of another legislature.

The purpose of legislation may be different from what it appears. However, it is not a case
of Colourable Legislation if it does not deal with the competency of the legislature to enact
it. The doctrine does not take into account if the law was enacted with bona fide or mala
fide motives. The only question that merits consideration is if the substance of a statute falls
under the enacting legislature’s domain or not.