Interpretation of Statutes

UNIT 1

Statute
• A statute is the formal expression in writing of the will of the legislature in a State. (NS Bindra)
• A statute is a formal written enactment of a legislative authority that governs a State. Typically,
statutes command or prohibit something, or declare policy.
• It is usually called an Act of the legislature.
• A statute is the highest constitutional formulation of law, the means by which the supreme
legislature, after the fullest deliberation, expresses its final will. (Allen, Law in the Making)
• Synonyms of Statute: law, regulation, enactment, act, bill, decree, edict, rule, command, order,
directive, pronouncement, proclamation, dictate, bylaw, ordinance etc.
• Difference between ‘Enactment’ and ‘Act’ – An Act means an Act of parliament, the whole Act,
whereas section or part of a section in any Act may be an ‘enactment.’ (NS Bindra)

Subjects of Interpretation
• In simple sense, the Court may interpret statutes, meaning law and legal documents, which is validly
creating rights, duties, and relationship among individuals or individuals and State.
• Most common subjects of interpretation by the Court:
– Constitution
– Legislation including Statutes/Act, Regulation, Ordinance, Orders or Subordinate legislation
– Agreements/Contracts – Any kinds of agreement if enforceable under law
– Other instruments and deeds including Will, gift instrument, dying declaration etc.
– Different Parts of A Statute
Different parts of a statute as included on ‘Maxwell on The Interpretation of Statutes’
• Title (Long title and Short title)
• Preamble
• Headings
• Marginal notes
• Schedules
• Punctuation
• Proviso

Title
Title is not part of enactment. So it cannot be legally used to restrict the plain meaning of the words in
an enactment.
• (i) Long title: The heading of the statute is the long title and the general purpose is described in
it. E.g. Authorisation of Emergency Powers to the Magistrate Act, 2008 B.S.; Control of Black
Marketing and Smuggling of Cotton Thread and Cotton Clothes Manufactured in the Mills Act,
2008 B.S; Human Trafficking and Transportation (Control) Act, 2064 (2007)
• (ii) Short Title: The short title of the Act is purely for reference only. The short title is merely
for convenience. E.g. Human Trafficking Act, 2064 for reference.
Preamble
 The Act Starts with a preamble and is generally small. The main objective and purpose of the
Act are found in the Preamble of the Statute. “Preamble is the Act in a nutshell. It is a
preparatory statement. It contains the recitals showing the reason for enactment of the Act. If the
language of the Act is clear the preamble must be ignored. The preamble is an intrinsic aid in the
interpretation of an ambiguous act.
 In many cases, the court held that even though the preamble cannot be used to defeat the
enacting clauses of a statute, it can be treated as a key for the interpretation of the statute.
Headings
• A group of Sections are given under a heading which act as their preamble.
• Headings are prefixed to sections. They are treated as preambles. If there is ambiguity in the
words of a statute, headings can be referred.

Marginal notes
Marginal notes are the notes that are printed at the side of the section in an Act and it summarizes the
effect of the section. They are not part of the statute. So they must not be considered. But if there is any
ambiguity they may be referred only as an internal aid to the construction.
Proviso
A proviso merely carves out something from the section itself. A proviso is a subsidiary to the main
section and has to be construed in the light of the section itself. Ordinarily, a proviso is intended to be
part of the section and not an addendum to the main provisions. A proviso should receive strict
construction. The court is not entitled to add words to a proviso with a view to enlarge the scope.
Schedule
Schedules form part of a statute. They are at the end and contain minute details for working out the
provisions of the express enactment. The expression in the schedule cannot override the provisions of
the express enactment.
Generally, Inconsistency between schedule and the Act, the Act prevails.
Punctuation
• Punctuation: The marks, such as period, comma, and parentheses, used in writing to separate
sentences and their elements and to clarify meaning.
• Prior to 1849, no punctuation normally appeared in the Acts on the Rolls of Parliament in
England. But since 1849 punctuation has been inserted.
• American experience, punctuation is minor and not a controlling, element in interpretation, and
the courts will disregard the punctuation of a statute or re-punctuate it, if need be, to give effect
to what otherwise appears to be its purpose and true meaning.
1.1. Introduction to Interpretation of
Statutes Introduction
• Theory of separation of power presented by Montesquieu is a modal of governance of the State
where the State is divided into three organs, namely, Executive, Legislature and Judiciary.
• Legislature is deliberative assembly with the authority to make laws for a political entity.
• Executive is the organ exercising authority in and holding responsibility for the governance of a
State. The executive executes, and enforces law.
• Judiciary is the system of courts that interprets and applies the law.

Meaning of Interpretation
• The term “interpretation” is derived from Latin word “interpretari” which means to explain, to
expound, to understand, or to translate. Hence, it is a process whereby a text (anything in written
form giving an idea) is to be explained, expounded, understood, or translated.
• The art or process of discovering and expounding the intended signification of the language used in a
statute, will, contract, or any other written document, that is, the meaning which the author designed
it to convey to others. [Black’s Law Dictionary]
• Interpretation is the method by which the true sense of the meaning of the word is understood.
[State of Jammu and Kashmir v Thankur Ganga Singh [1960] 2 SCR 346, p351 as cited by NS
Bindra’s Interpretation of Statutes]
• Maxwell defined a statute as “the will of the legislature”[…] A statute is an authentic expression of
the legislative will, the function of the court is to interpret that document “according to the intent of
them that made it.” [As cited by Interpretation of Statutes by Dr. A.B. Kafaltiya]
• Interpretation or construction is meant the process by which the courts seek to ascertain the
meaning of the legislature through the medium of authoritative forms in which it is expressed. [
Salmond]
• The process by which a judge (or indeed any person, lawyer or layman, who has occasion to search
for the meaning of a statute) constructs from the words of a statute book, a meaning which he either
believes to be that of the legislature, or which he proposes to attributes to it, is called
“interpretation”. [Gray]
• The operation of statute is not automatic, and can never be so. Like all legal rules, it has to operate
through application – in other words, through the interpretation of the courts. [Allen]
• ‘The art of interpretation is the ‘art of proliferating a purpose.’ ‘The interpretation of statutes is a
science by itself.’ Indian case laws

Objectives of Interpretation
• Keeton has observed:- The function of the judges, in interpreting statutes is twofold. In the first
place, they must decide upon the exact meaning of what the legislature has actually said, and, in the
second place, they must consider what the legislature intended to have said, or ought to the have
said, but did not, either because it never visualized such a set of circumstances arising as that before
the court, or because of some other reason.
1. Determination of meaning
2. Finding the intent of legislature
Needs for Interpretation
Language problem- Statutory interpretation is the process of interpreting and applying legislation to
decide cases. Interpretation is necessary when case involves suble or ambiguous aspects of a statute.
Generally, the words of a statute have a plain and straightforward meaning. But in some cases, there
may be ambiguity or vagueness in the words of the statute that must be resolved by the judge. The
reason for ambiguity or vagueness of a legislation is the fundamental nature of language. It is not always
possible to precisely transform the intention of the legislature into written words.
1. Indirect language
2. Ambiguity
- Lexical or semantic ambiguity caused by multiple lexical meanings of a word or phrase.
 - Lexical ambiguity in meaning
- Lexical ambiguity in sense
- Syntactical or grammatical or structural ambiguity caused by grammatical structure
of the sentence
- Referential ambiguity (when a word (particularly proper noun) is ambiguous due to
certain external facts
3. Vagueness (not precise or exact in meaning)

Example of Lexical or Semantic Ambiguity

Frigaliment Importing Co. v BNS International Sales Corporation 190 F. Supp. 116 (S.D.N.Y.
1960)
• Brief Fact Summary. Defendant B.N.S. International Sales Corp. (US wholesaler poulty)
contracted to sell chicken to Plaintiff, Frigaliment Importing Co. (Swiss company) Defendant sent
chicken complying with the weight requirements of the contract. Plaintiff argues that the chicken
sent did not comply with the terms of the contract because the term “chicken” means young chicken.
• Synopsis of Rule of Law. To interpret a disputed term in a contract, the court will consider (in order
of importance): (1) the language of the contract, (2) the preliminary negotiations, (3) trade usage, (4)
legal standard, (5) course of performance, and (6) maxims.
• Facts. Defendant contracted to sell chicken to Plaintiff. Both contract indicated that Defendant was
selling specified amounts of 21/2 – 3 lb. chickens and 1 1/2 – 2 lb. chickens. When the fist shipment
was sent, Plaintiff found that the heavier chickens were not young chickens suitable for broiling or
frying, but older stewing chicken. The parties disagree as to what the term “chicken” in the contract
means.
• Issue. Does the term “chicken” in the contract mean only younger chicken?

Plaintiff’s arguments
• First size (1 1/2 – 2 lb) was naturally younger chickens because older chickens do not come in that
size. Because smaller chicken had to be younger chickens. Plaintiff argues that larger chickens (2 1/2 –
3 lb) had also be young.
• Plaintiff also argues that trade usage of the term “chicken” is to indicate a young chicken. However,
there was conflicting evidence as to whether “chicken” only means a young chicken in the trade.

Defendant’s arguments
• The contract has specified the chickens in terms of weight but not age, therefore, as the order was
complied with the specified weights, the contract has been satisfactorily performed.
• Defendant alleges that to sell younger chicken to Plaintiff at the contract price would result in a loss
to the defendant. [One maxim is that a reasonable construction is preferred over an unreasonable
construction.]

Decision
• Judge Friendly, who heard the case, has accepted that the term chicken alone is ambiguous, hence,
both the meaning are possible. It was so because there were multiple meaning of the term ‘chicken’
in the dictionary that also includes the above said two meanings i.e. younger and older chickens.
• However, taking into consideration, other factors along with the provisions of the contract, he finally
decided the case against the plaintiff. He held that The term “chicken” in the contract did not mean
only younger chicken.
Kinds of Interpretation
1. Grammatical Interpretation
It is arrived at by reference to the laws of speech to the words used in the statute; in other words, it
regards only the verbal expression of the legislature.

2. Logical Interpretation
 Logical interpretation gives effect to the intention of the legislature by taking into account other
circumstances permissible according to the rules settled in this behalf.
• Grammatical interpretation is the application to a statute of the laws of speech; logical interpretation
calls for comparison of the statute with other statutes and with the whole system of law; and for the
consideration of the time and circumstances in which the statute was passed. [Gray]

Principle of Interpretation
• Primary rules
– Literal rule
– Mischief rule
– Golden rule
– Rule of harmonious construction
• Secondary rules
– Noscitur a sociis
– Ejusdem Generis
– Reddendo Singula Singulis
• Noscitur a sociis– When a word is ambiguous, its meaning may be determined by reference to the
rest of the statute.
• Ejusdem Generis– When a list of two or more specific descriptors are followed by more general
descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same
class, if any, of the specific words that precede them e.g. vehicles in “cars, motor bikes, motor
powered vehicles” would be interpreted in a limited sense and therefore cannot be interpreted as
including air planes.
• Reddendo Singula Singulis– When a list of words has a modifying phrase at the end, the phrase
refers only to the last word, e.g., firemen, policemen, and doctors in a hospital. Here,”in a hospital”
only applies to doctors and not to firemen or policemen.

Limitation on Interpretation/Courts
• Interpret, not legislate
• Discover, not invent
• Remove, not add

Examples
I will meet you in the bank.
Interpretation:
• I will meet you in the commercial bank.
• I will meet you in the sea bank.
• I will meet you in the restaurant name the bank.
• I will meet you in the blood bank.
The bill was killed in the house.
Interpretation:
• The bill ( bird) was murdered in the house (home).
• The bill ( bird) was murdered in the house (the House of Parliament).
• The bill (a man) was murdered in the house ( home).
• The bill ( a man) was murdered in the house ( the House of Parliament).
• The bill ( a document) was destroyed in the house ( someone's home).
• The bill ( a document) was destroyed in the house ( the House of Parliament).

Examples of words bearing more than one meaning:

“Arms”
Meaning
(i) weapons, e.g. Nobody knows who supplies arms to the enemies.
(ii) Upper limbs of the body, i.e. hands e.g. She was carrying the baby in her arms.

“Bar”
Meaning
(i) Detergent soap, e.g. I use dove bar.
(ii) A long piece of wood, e.g. He hit the dog by a wooden bar.
(iii) Room or counter where drinks are served, e.g. I got to the bar every night.
(iv) Association of lawyers/ group of lawyers, e.g. for practicing in the court, it is necessary to get the
registration from the Bar Council.
(v) Barrier e.g. Government has put a bar on promotion.

“Close”
Meaning
(i) Near in space e.g. Come close to the window to view the scene.
(ii) To shut e.g. You can’t see if you close your eyes.
(iii) Not open e.g. The market is closed today.
(iv) End e.g. At the close of the day, India scored 250 runs for 3 wickets.
(v) near and dear, e.g. You are my close friend.

Interpretation and Construction

• Interpretation is a process of discovering true meaning of language used in a statute.
• Interpretation is only limited to explore the written text or discern the meaning of the words through
dictionaries and other sources.
• Construction is the process of drawing conclusions with respect to subjects that are beyond the direct
expression of the text.
• In other words, when after drawing the meaning of the words used in a statute through interpretation
process, the court then draws certain conclusions from them. And construction is the application of
these conclusions on a particular set of facts pending before the court.
Interpretation and Construction – Distinct expressions?
• Salmond treats interpretation and construction interchangeably– “Interpretation or construction is
meant the process by which the courts seek to ascertain the meaning of the legislature through
the medium of authoritative forms in which it is expressed.”
• White, J observed that ‘in common usage interpretation and construction are usually understood as
having the same significance.’
• Cooley says, “Interpretation differs from construction in that the former is the art of finding out the
true sense of any form of words i.e. the sense which their author intended to convey and of enabling
others to derive form them the same idea which author intended to convey. Construction, on the
other hand, is the drawing of conclusion, respecting subject that lie beyond the direct expression of
the text from elements known from and given in the text conclusions which are in the spirit through
not within the letter of the law.’
• Crawford – distinction has been largely relegated to the realm of academic discussion.
• Sutherland terms the distinction as “erroneous”.
• Dias says that distinctions are so hard to disentangle.
• Maxwell sees construction as general principles of interpretation.

Example
• Let suppose, a statute is prohibiting the entrance of certain people in “the vicinity of a building”. B
while flying in a parachute lands on the top floor of the building. Has B committed a wrong?
• Interpretation – Meaning of ambiguous and vague word “vicinity” through dictionaries which may
be neighborhood, area, locality etc. Therefore, intention of legislature to be discovered. If the
building is very sensitive accommodating secrecies of the State – Legislature’s intention may mean
all surrounding areas of the building (land, underground and air). The process of discerning
meaning of the word “vicinity” is called interpretation.
• Construction – Next step is drawing conclusion whether ‘B landing on the top floor of the said
building through parachute has committed wrong or not.’ If B’s landing on the building was only
for a short moment, and the same was due to technical fault in B’s parachute. It was not possible for
B to obtain any secret information , the court may exclude B’s action from the purview of the said
statute and declare B’s action was not covered by it. This process of drawing conclusion and
applying these conclusions on a particular set of facts pending before the court is called construction.
• Case: Sheshnatha Prasad Karmi vs. Makbool Ahmed, NKP 2044, Issue 2, Decision No. 2986
Case: Sheshnatha Prasad Karmi vs. Makbool Ahmed, NKP 2044, Issue 2, Decision No. 2986
• Interpretation – Meaning of “Putra (chhora) (son)” and “Babu (father)”
• Construction: Does the word “chhora(son)” include adopted son in provisions of Land Reform Act
2021, Section 26(1)? Does Mohiyani hak (tenancy right) get transferred to adopted son?
Discussion

Discussion

Discussion
• Is this interpretation-construction distinction really necessary? What work does it do? Does the
distinction reflect a real and fundamental difference between different modes of legal practice?

UNIT 2
Rules of Interpretation
General Principles of Interpretation according to Maxwell
 1. The Primary Rule: Literal Construction
2. The Other Main Principles of Interpretation
a. The Mischief Rule
b. The Golden Rule
c. Construction ut res magis valeat quam pereat (It is better for a thing to have effect than to
be made void.)
d. A statute is to be read as a whole.
Rules of Interpretation
• General Rules
1. Literal Rule
2. Mischief Rule
3. Golden Rule
4. Construction ut res magis valeat quam pereat
5. Beneficiary Rule
• Subsidiary Rules
1. Ejusdem Generis
2. Noscitur a sociis
3. Reddendo Singula Singulis
4. Expression Unius
5. Contemporanea expositio
6. Construction of words in bonam partem

Literal Rule
• Also known as “Plain Meaning Rule” - one of three rules of statutory interpretation traditionally
applied by English courts, other two – Golden Rule and Mischief Rule
• When Literal Rule is applied, the words in a statute are given their ordinary, plain, and dictionary
meaning.
• When the grammatical construction is clear and manifest and without doubt, that construction ought
to prevail unless there be some strong and obvious reason to the contrary. – NS Bindra, p.432
• When there is no ambiguity in the words, there is no room for further interpretation.
• The first and most elementary rule of construction is that it is to be assumed that the words and
phrases of technical legislation are used in their technical meaning if they have acquired one, and
otherwise in their ordinary meaning; and the second is that the phrases and sentences are to be
construed according to the rules of grammer. – Maxwell, p.28
• Only applicable when there is no ambiguity or vagueness
• Ordinary and/or natural meaning to be adhered to in the first instance.
– No resort to the position of law in the society or country
– No resort to legislative history
– Even when language used inadvertently (without intention or accidently)
• Omissions not to be inferred
– Nothing to be added to or taken from a statute
• Every word in a statute to be given a meaning

Examples of Literal Rule

• Fisher v Bell [1961] 1 QB394
Fact
A shopkeeper displayed a flick knife in the window of his shop bearing the words "Ejector knife – 4s.”
Under the Restriction of Offensive Weapons Act 1959, section 1(1), it was illegal to manufacture, sell,
hire, or offer for sale or hire, or lend to any other person, amongst other things, any knife "which
has a blade which opens automatically by hand pressure applied to a button, spring or other
device in or attached to the handle of the knife". On 14 December 1959, the Claimant, a chief
inspector of police force, brought forward information against the Defendant alleging the Defendant has
contravened section 1(1) by offering the flick knife for sale..

Decision
The judges at first instance (High Court) found that displaying the knife was merely an invitation to
treat, not an offer, and thus no liability arose. The prosecutor appealed the judge’s decision.
The Court of Appeal held that the general law of the country clearly established that merely displaying
an item constituted an invitation to treat. The lack of the words exposing for sale in the Restriction of
Offensive Weapons Act 1959 suggested that only a true offer would be prohibited by the Act. The
court dismissed the appeal. Goods displayed in a shop are merely an invitation to treat or invitation to
trade.
• R v Harris (1836) 7 C & P
446 Fact:
Harris bit of her friend’s nose in a fight, and then the policeman’s finger. According to a provision of a
statute, it was made an offence to ‘stab, cut or wound’ another person.
Decision:
Under the literal rule, the act of biting did not come within the meaning of stab, cut or wound as these
words implied an instrument/weapon had to be used. Harris was not found guilty as teeth were not
included in category of instrument/weapon to which the statute indicated to apply.
• Whitely v Chappel (1868) LR 4 QB 147
A statute made it an offence 'to impersonate any person entitled to vote.' The defendant used the vote of
a dead man. The statute relating to voting rights required a person to be living in order to be entitled to
vote.
The literal rule was applied and the defendant was thus acquitted.
Advantages of Literal Rules
• It results in a quick decision because meaning can be found in a dictionary or other sources.
• Judges apply the words of legislature that restricts the role of judges and provides no scope for
judges to use their own opinion and prejudices.

Disadvantages of Literal Rules

• It can produce absurd outcomes, create injustice and result in outcomes that do not match
parliamentary intention.
• It may create awkward precedents which require other effort to correct.
• It may fail to recognize complexities and limitations of languages.
• There can be disagreement to what amounts to the ordinary or natural meaning.

Golden Rule
• Golden Rule is really a modification of the literal rule. – Maxwell, p.43
• Golden Rule is the elaboration or extension of the Literal Rule.
• It may be applied where an application of the literal rule would lead to an absurdity.
• The golden rule allows a judge to depart from a word's normal meaning in order to avoid an absurd
result.
• It can be applied in the following ways
– Narrow approach - When a word has multiple meanings, judge selects one meaning that fits
the situation and does not lead to absurdity. Eg. R v Allen Case (1872)
– Wide approach- When a meaning of a word result in a ridiculous or repugnant outcome, the
golden rule allows to modify a word that has only one meaning in order to avoid an absurd
outcome. Eg. Re Sigsworth [1935]

Examples of Golden Rules

• For example, imagine there may be a sign saying "Do not use lifts in case of fire.”
– Literal Interpretation – People must never use the lifts, in case there is a fire.
– Golden Rule – This would be an absurd result, as the intention of the person who made the
sign is obviously to prevent people from using the lifts only if there is currently a fire nearby.

R v Allen Case (1872)

The defendant was charged with the offence of bigamy under Section 57 of the Offences Against the
Person Act 1861. The statute states 'whosoever being married shall marry any other person during the
lifetime of the former husband or wife is guilty of an offence'. Under a literal interpretation of this
section the offence would be impossible to commit since civil law will not recognise a second marriage
any attempt to marry in such circumstances would not be recognised as a valid marriage.
The court applied the golden rule and held that the word 'marry' should be interpreted as 'to go through a
marriage ceremony'. The defendant's conviction was upheld.
• ReSigsworth, Bedford v Bedford [1935]
A son murdered his mother. She had not made a will. Under the statute setting the law on intestacy he
was her sole issue and stood to inherit her entire estate.
Under Section 46 of the Administrative of Estate Act 1925, a person could not inherit the estate of the
decease if they had murdered that other person, otherwise the murderer would benefit from his/her
crime.
The court applied the Golden rule holding that an application of the literal rule would lead to a
repugnant result. The court held that under Section 46 of the Administrative of Estate Act 1924, a son
who had murdered his mother could not benefit from that crime even though there was only one literal
meaning of the word ‘issue’ (i.e. blood offspring) in the Act.

Advantages of Golden Rule

• Errors in drafting can be corrected immediately. Eg. R v Allen case
• Decision made are considered to be more in line with legislature’s intention.
• Applying this rule closes loopholes
• Application of this rule often brings more just results and bring common sense to the law.

Disadvantages of Golden Rule

• Judges are able to add or change the meaning of statutes and thereby become Law makers, infringing
the separation of powers.
• Judges have no power to intervene for pure injustice where there is no absurdity.
 Mischief Rule
The main aim of the rule is to determine the "mischief and defect" that the statute in question has set out to
remedy, and what ruling would effectively implement this remedy.
• The courts use this rule to decide what loophole(mischief and defect) the statute was intended to
correct or close and in doing so the courts go beyond the words of the statute to ascertain what
loophole the statute was set out to remedy.
• This rule was used in Heydon’s Case (1958). This is also known as Heydon’s rule.

Mischief Rule
In applying this rule the court will consider four principles (according to Lord Coke):
• What was the common law before the rule was passed?
• What solution was offered by parliament?
• What is the true reason for the Solution?
• What was the mischief the law did not solve?

Examples of Mischief Rule

 Heydon’s case [1584]

Ottery College, a religious college, gave a tenancy in a manor also called Ottery to a man (Ware) and his
son (also referred as Ware). The tenancy was established by Copyhold, an ancient device for giving a
parcel of a manor to a tenant, usually in return for agricultural services, something like a long running
lease. Later, the college then leased the same parcel to another man, named Heydon, for a period of eight
years in return for rents equal to the traditional rent for the components of the parcel. Less than a year
after the parcel had been leased to Heydon, Parliament enacted the Suppression of Religious Houses Act
1535 (Act of Dissolution). The statute had the effect of dissolving many religious colleges, including
Ottery College, which lost its lands and rents to Henry VIII. However, a provision in the Act kept in
force, for a term of life, any grants that had been made more than a year before the enactment of the
statute.
The Court of Exchequer found that the grant to the Wares was protected by the relevant provision of the
Act of Dissolution, but that the lease to Heydon was void.
• Elliot v Grey [1960]
The defendant's car was parked on the road. It was jacked up and had its battery removed. He was
charged with an offence under the Road Traffic Act 1930 of using an uninsured vehicle on the road. The
defendant argued he was not 'using' the car on the road as clearly it was not driveable.
The court applied the mischief rule and held that the car was being used on the road as it represented a
hazard and therefore insurance would be required in the event of an incident. The statute was aimed at
ensuring people were compensated when injured due to the hazards created by others.

• Corkery v Carpenter [1951]

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

Advantages of Mischief Rule

• Closes loopholes. Helps to remove absurdity and injustice

• Allows laws to develop and adapt to changing needs.
• Flexible

Disadvantages of Mischief Rule

• Judges can bring their own views, sense of morality and prejudices.
• Gives judges a law-making power role infringing the separation of power

Construction ut res magis valeat quam pereat

• Latin Maxim, meaning “It is better for a thing to have effect than to be made void.”
• A legal concept that stands for trying to construe a law in a way to make sense, rather than void it.
The law should be given effect rather than be destroyed.
• The Courts strongly lean against a construction which reduces the statute to a futility. A statute or
any enacting provision therein must be so construed as to make it effective and operative.
• In accordance with this principle, the courts should avoid interpretations which would leave any part
of the law to be interpreted without effect. The courts will not narrow down the enactments but it
may give a wide sense to the words in the statute.
• “If the choice is between two interpretations, the narrower of which would fail to achieve the
manifest purpose of the legislation, we should avoid a construction which would reduce the
legislation to futility and should rather accept the bolder construction based on the view that
Parliament would legislate only the purpose of bringing about an effective result.” – Maxwell, p. 45
• Where alternative constructions are equally open, that alternative is to be chosen which will be
consistent with the smooth working of the system which the statute purports to be regulating; and
that alternative is to be rejected which will introduce uncertainty, friction or confusion into the
working of the system.” Maxwell, p.45
• Re. P. & J. Macrea Ltd [1961], Maxwell p. 46
– Case relating to interpretation of Section 346(1) and 346(2) of the Companies Act 1948
– Section 346(1) of the Companies Act 1948: “The Court may, as to all matter relating to the
winding up of a company, have regard to the wishes of the creditors or contributors of the
company , as proved to it by any sufficient evidences.”
– Section 346(2): “In the case of creditors, regard shall be had to the value of each creditor’s
share.”
– The Court of Appeal has refused to adopt an interpretation of section 346(2), which would
have the effect of diminishing the very wide discretion conferred upon it by the earlier
provision.
• R v Ewens [1967] 1 QB 322
– Section 1(1) (a) of the Drugs (Prevention of Misuse) Act 1964, it is a defense for an accused
person to show that he was in possession of a scheduled substance by virtue of a prescription
issued by a medical practitioner for its administration to him by way of treatment.
– It was held that the onus of bringing himself within this exception was on the accused, and
that the Crown was not bound in the first place to adduce any prima facie evidence that he
fell outside the exception.
– “It is tolerably plain that there must be many statutory prohibitions which would become
incapable of enforcement if the prosecution had to embark upon inquiries necessary to
exclude the possibility of a defendant falling with in a class of persons excepted by the
section when the defendant himself knows perfectly whether he falls within the class.” –
Melford Stevenson J
Beneficiary Rule
• A beneficial statute is a class of statute which seeks to confer benefit on individuals or class of
persons by relieving them of onerous obligation under contracts entered into by them or which tend
to protect persons against oppressive act from individuals with whom they stand in certain relations.
The established principle in the construction of such statutes is there should not be any narrow
interpretation
• Beneficent construction involves giving the widest meaning possible to the statutes. When there are
two or more possible ways of interpreting a section or a word, the meaning which gives relief and
protects the benefits which are purported to be given by the legislation, should be chosen.

Examples of Beneficiary Rule

• The words “soldier being in actual military service” and “mariner or seaman being at sea” in section
11 of the Wills Act 1837 have been interpreted, for instance, to include a territorial officer who have
received orders to join his units and a female typist employed on an ocean going liner. – Maxwell,
p.92
• David v. Harris [1900] 1 QB 729: Where a statue protected “bedding” from seizure on distress, it
was held to include the bedstead.

Subsidiary Rules
Rules of language have developed to help in the interpretation of statutes.
They allow judges to look at other words in the Act in order to make the meaning clear.
1. Ejusdem Generis
2. Noscitur a sociis
3. Reddendo Singula Singulis
4. Expression Unius
5. Contemporanea expositio
6. Construction of words in bonam partem

Ejusdem Generis
• It means “of the same type”.
• For example, if a law refers to automobiles, trucks, tractors, motorcycle, etc, “vehicles” would not
include airplane since the list was of land based transportation.
• This rule was used in Powell v Kempton Park Racecourse (1889). The defendant had been operating
an outside betting place. The Act stated 'house, office, room or other place of betting'. The court
therefore had to define if 'other place' would cover the defendant's situation. As the terms in the list
all referred to indoor places, it was decided that 'other place' also referred to an indoor place.
• In Devendra Surti v State of Gujarat, under section 2(4) of the Bombay shops and Establishment Act
1948, term commercial establishment means “an establishment which carries any trade, business or
profession”. Here the word profession is associated to business or trade and hence, private doctor’s
clinic cannot be included in above definition as under the rule of Ejusedm Generis.

Noscitur a sociis
• This means “known by the company it keeps”. That is to say that a word derives meaning from
surrounding words.
• When a word is ambiguous, its meaning may be determined by reference to the rest of the statute.
• In Pengelly v. Bell Punch Co. Ltd [1964] 1 WLR 1055 the court had to decide whether a floor used
for storage came under the Factories Act 1961, whereby 'floors, steps, stairs, passageways and
gangways' had to be kept free from obstruction. The court held that as all the other words were used
to indicate passage, a floor used exclusively for storage did not fall within the Act.

Reddendo Singula Singuli

• When a list of words has a modifying phrase at the end, the phrase refers only to the last word, e.g.,
firemen, policemen, and doctors in a hospital. Here,”in a hospital” only applies to doctors and not to
firemen or policemen.

Expression Unius
• Expressio unius est exclusion alterius - it means “to express one is to exclude others”. Therefore
mention of one or more specific things may be taken to exclude others of the same type.
• An example can be seen in Tempest v Kilner (1846). This considered the Statute of Frauds Act
1677, which noted that a contract for the sale of 'goods, wares and merchandise of £10 or more'
needed to be evidenced in writing. This case concerned stocks and shares and, because they were not
expressly mentioned in the list, they were excluded.

Contemporanea expositio
• hat the meaning of words in a document are to be understood in the sense which they bore at the
time of the document. This rule does not, however, apply to modern statute.
• According to Coke, the maxim contemporanea expositio was applied to construing ancient statutes,
but not to interpreting Acts which are comparatively modern.
• "It is said that the best exposition of a statute or any other document is that which it has received
from contemporary authority. Where this has been given by enactment of judicial decision it is a
course to be accepted as conclusive". – Maxwell
• Example – This rule is applicable in case of interpretation of provisions of Muluki Ain, 1910.

Construction of words in bonam partem

• The maxim cannotes that words must be taken in a lawful and rightful sense. The word "lawful"
cannotes any thing sanctioned or recognised by law. When, therefore in execution of a decree or
order of the court some properties are attached, it has to be seen that the seizure is lawful and that the
property belongs to the debtor. Further, the act must be rightfully done, done in a lawful manner.
• Example: A statutory authority to abate nuisances would not justify an order to abate one when it
could not be obeyed without committing a trespass.

UNIT 3: Construction of Constitutions

Constitution
• It is used to describe the whole system of government of a country, the collection of rules which
establish and regulate or govern government. These rules are partly legal, in the sense that courts of
law will recognize and apply them, and partly, non-legal or extra-legal taking the form of usages,
understandings, customs, or conventions which courts do not recognize as law but which are not less
effective in regulating the government than the rules of law strictly so called.
• It is used to describe not the whole collection of rules, legal, and non legal, but rather a selection of
them which has usually been embodied in one document or in a few closely related document.
– Modern Constitutions, Wheare and Strong, pp. 1-2.
Few points
• The Constitution is a living document.
• The Constitution is the fundamental/supreme law of the land.
• The Constitution is not merely concerned with the present and the past; but also built for the future.
• The Constitution is the direct mandate of the people themselves, the legislature is an expression of
the will of the legislature only, though the legislature is also the representative of the people. A
Constitution is but a higher form of statutory law. – Bindra, p.1261

Constitutional Construction
• Constitutional interpretation, or constitutional construction is the process by which meanings are
assigned to words in a Constitution, to enable legal decision to be made that are justified by it.
• Constitutional Construction argues that the Constitution has a dual nature i.e. legal and political
nature. In some cases, ambiguities in the constitutional text and changes in the political situation
encourage political actors to construct their own constitutional understandings which may or may
not be same as the court’s interpretation.

Constitutional Interpretation
• Applicability of rules of statutory interpretation/construction?
– The Constitution being essentially in the nature of a statute, the general rules governing the
construction of statutes in the main apply to the construction of the Constitution as well. The
fundamental rule of interpretation is same […] And where two constructions are possible, but
one should be adopted which would ensure a smooth and harmonious working of the
Constitution and eschew that would lead to absurdity or give rise to practical inconvenience
or make well-established provisions of existing law nugatory. Bindra, p. 1263
• "The whole aim of construction, as applied to a provision of the Constitution," said Justice
Sutherland in 1934, "is to discover the meaning, to ascertain and give effect to the intent, of its
framers and the people who adopted it.” Every clause of the Constitution must be construed so as to
"express the intention of its framers," said Justice Strong speaking for the Supreme Court in 1874.'
Justice Goldberg, writing in 1964, said: "Our sworn duty to construe the Constitution requires... that
we read it to effectuate the intent and purposes of the Framers."

Key consideration for Constitutional Construction

a. Same rules irrespective of form of government
b. Ascertainment of intention
c. Harmonious construction
d. Constitution to be examined with reference to its own language
e. Noscitur a Sociis
f. Analogues provision of other Constitution
g. Where wording of other Constitution exactly same
h. Constitution to be considered as a whole
i. Constitution to be read in the light of circumstance in which made
j. Substance
k. Maxim “Expressio Unius Est Exclusio Alterus” applied
l. Not to be construed with reference to motives or public policy or political wisdom
m. Not to be construed with reference to something which would commend itself to court’s mind
Principles of Constitutional Construction
• Harmonious Construction
• Presumption of Validity – Ut res magis valeat quam pereat
• Liberal interpretation
• Progressive interpretation
• Constitutional Construction and influencing factors
– Interpretation of provisions e.g. self executing and non self executing constitutional
provisions; mandatory and directory provisions
– ‘Stare decisis’ applicable in constitutional matter
– Doctrine of ultra-vires
– Doctrine of implied powers
– Doctrine of implied prohibition
– Doctrine of colourable legislation
– Doctrine of eclipse

Doctrine of ultra-vires
• If an act requires legal authority and it is done with such authority, it is characterised in law as intra
vires ("within the powers"). If it is done without such authority, it is ultra vires. Acts that are intra
vires may equivalently be termed "valid" and those that are ultra vires "invalid".

Doctrine of implied powers

• In the case of the United States government, implied powers are the powers exercised by Congress
which are not explicitly given by the Constitution itself but necessary and proper to execute the
powers.

Doctrine of implied prohibition

• Opposite of doctrine of implied prohition

Doctrine of colourable legislation

• Doctrine of Colorable Legislation is built upon the founding stones of the Doctrine of Separation of
Power. Separation of Power mandates that a balance of power is to be struck between the different
components of the State i.e. between the Legislature, the Executive and the Judiciary. The Primary
Function of the legislature is to make laws. Whenever, Legislature tries to shift this balance of power
towards itself then the Doctrine of Colorable Legislation is attracted to take care of Legislative
Accountability.

Doctrine of eclipse
• The Doctrine of Eclipse says that any law inconsistent with Fundamental Rights is not invalid. It is
not dead totally but overshadowed by the fundamental right. The inconsistency (conflict) can be
removed by constitutional amendment to the relevant fundamental right so that eclipse vanishes and
the entire law becomes valid.

UNIT 4 Construction
Construction
• Liberal Construction
• Beneficial Construction
• Restrictive/Strict Construction
• Harmonious Construction
• Construction to avoid collision with other provision
• Exceptional Construction

Liberal vs. Strict - US Constitution

Liberal Strict
Hamilton Thomas Jefferson
Energetic Government Limited Government
Expressed rights and implied rights – the Expressed rights and implied rights – implied
government to win implied powers powers that are necessary to carry

Liberal Construction
• A form of construction which allows a judge to consider other factors when deciding the meaning of
a phrase or document.
• For example, faced with an ambiguous article in a statute, a liberal construction would allow a judge
to consider the purpose and object of a statute before deciding what the legal provision actually
means.
• Liberal construction does not mean that words should be forced out of their natural meaning, but
simply that the words should receive a fair and reasonable interpretation so as to attain the objects
for which the instrument is designed and the purpose to which it is applied.
• Liberal construction would suggest being a more flexible and adaptable to situations or
circumstances.
• Example: Fundamental Rights of the Constitution; Rules of Court to be liberally construed in order
to promote their objective of securing a just, speedy and inexpensive disposition of every action and
proceeding

Beneficial Construction
• A beneficial statute is a class of statute which seeks to confer benefit on individuals or class of
persons by relieving them of onerous obligation under contracts entered into by them or which tend
to protect persons against oppressive act from individuals with whom they stand in certain relations.
The established principle in the construction of such statutes is there should not be any narrow
interpretation
• Beneficent construction involves giving the widest meaning possible to the statutes. When there are
two or more possible ways of interpreting a section or a word, the meaning which gives relief and
protects the benefits which are purported to be given by the legislation, should be chosen.
• The words “soldier being in actual military service” and “mariner or seaman being at sea” in section
11 of the Wills Act 1837 have been interpreted, for instance, to include a territorial officer who have
received orders to join his units and a female typist employed on an ocean going liner. – Maxwell,
p.92
• In the case of Sant Ram v Rajinderlal, the Supreme Court said that welfare legislation must be
interpreted in a Third World perspective favouring the weaker and poor section. It has also been laid
down in the case of labour legislation that courts should not stick to grammatical constructions but
also have regard to ‘teleological purpose and protective intendment’ of the legislation. Interpretation
 of labour legislation should be done by the courts with more concern with the colour, the context and
the content of the statute rather than its literal import.
• To suppress mischief and advance the remedy
• Statutory provisions requiring something to be done for example sending notice.
• Extension to new things
• Do minimis not curat lex (about minimal things) - a legal doctrine by which a court refuses to
consider trifling matters. For instance – “To break from prison” would not apply to a prisoner who
broke out of prison while it was on fire to save his life.

Restrictive Construction
• Restrictive Construction is a narrow and precise construction of the meaning of a law or legal
document. It is the opposite of a liberal interpretation.
• If a statute should be strictly construed, nothing should be included within the scope that does not
come clearly within the meaning of the language used.

Examples of Restrictive Construction

• Penal Statutes : Penal laws are to be construed strictly against the state and in favor of the accused.
Hence, in the interpretation of a penal statute, the tendency is to subject it to careful scrutiny and to
construe it with such strictness as to safeguard the right of the accused. If the statute is ambiguous
and admits of two reasonable but contradictory constructions, that which operates in favor of a party
accused under its provisions is to be preferred.
• Tax Laws: Taxation is a destructive power which interferes with the personal and property rights of
the people and takes from them a portion of their property for the support of the government.
Accordingly, in case of doubt, tax statutes must be construed strictly against the government and
liberally in favor of the taxpayer, for taxes, being burdens, are not to be presumed beyond what the
applicable statute expressly and clearly declares. Any claim for exemption from a tax statute is
strictly construed against the taxpayer and liberally in favor of the state.
• Naturalisation law: Naturalization laws should be rigidly enforced and strictly construed in favor of
the government and against the applicant.

Restrictive Construction
• Some points
– Construction with reference to consequence
– Restrictive provisions of the Statutes (Restriction of operation; restriction to specific objects)
– Mens rea

Sweet v. Parsley Case [1970]

• An English legal case where the defendant was found guilty of allowing her property to be used for
smoking cannabis. Even though she had no knowledge of the offence, it was on her property so she
was liable without fault. This conviction was later quashed by the House of Lords on the grounds
that knowledge of the use of the premises was essential to the offence. Since she had no such
knowledge, she did not commit the offence.
• It is significant in English criminal law as it sets out a new set of guidelines for determining strict
liability. Lord Reid laid down the following guidelines for all cases where the offence is criminal as
opposed to quasi-criminal:
 – Wherever a section is silent as to mens rea there is a presumption that, in order to give effect
to the will of Parliament, words importing mens rea must be read into the provision.
– It is a universal principle that if a penal provision is reasonably capable of two
interpretations, that interpretation which is most favourable to the accused must be adopted.
– The fact that other sections of the Act expressly require mens rea is not in itself sufficient to
justify a decision that a section which is silent as to mens rea creates an absolute offence. It is
necessary to go outside the Act and examine all relevant circumstances in order to establish
that this must have been the intention of Parliament.

Warner V Metropolitan Police Commissioner [1968]

• The appellant had been convicted of an offence contrary to section 1 of the 1964 Act, of having been
found in possession of drugs.
• Held: (Reid dissenting) The prosecution had only to prove that the accused knew of the existence of
the thing and that it was in general not a defence for him to say that he believed the thing to be
something else such as scent and not drugs. Lord Pearce said: ‘I think that the term ‘possession’ is
satisfied by a knowledge only of the existence of the thing itself and not its qualities and that
ignorance or mistake as to its qualities is not an excuse. This would comply with the general
understanding of the word ‘possess.”
– Lord Reid said: ‘The rule is firmly established that we may not look at Hansard . . ‘
– Lord Wilberforce said: ‘Ideally, a possessor of a thing has complete physical control over it,
he has knowledge of its existence, its situation and its qualities: he has received it from a
person who intends to confer possession of it and he has himself the intention to possess it
exclusively of others. But these elements are seldom all present in situation with which the
court have to deal, and where one or more of them is lacking, or incompletely present, it has
to be decided whether the given approximation is such that possession may be held
sufficiently established to satisfy the relevant rule of law. As it is put by Pollock and Wright,
possession: is defined by modes of events in which it commences or ceases and by legal
incidents attached to it’.

Harmonious Construction
• When there is a conflict between two or more statues or two or more parts of a statute then the rule
of harmonious construction needs to be adopted. The rule follows a very simple premise that every
statute has a purpose and intent as per law and should be read as a whole. The interpretation
consistent of all the provisions of the statute should be adopted. In the case in which it shall be
impossible to harmonize both the provisions, the court’s decision regarding the provision shall
prevail.
• The Doctrine of Harmonious Construction states that, a provision of the statue should not be
interpreted or construed in isolation but as a whole, so as to remove any inconsistency or
repugnancy.
• An interpretation which makes the enactment a consistent whole, should be the aim of the Courts
and a construction which avoids inconsistency or repugnancy between the various sections or parts
of the statute should be adopted. The Courts should avoid “a head on clash” between the different
parts of an enactment and conflict between the various provisions should be sought to be
harmonized.
• In words of Indian Supreme Court, “When there are, in an enactment two provisions which cannot
be reconciled with each other, they should be so interpreted, that if possible, effect should be given
 to both”. A construction which makes one portion of the enactment a dead letter should be avoided
since harmonization is not equivalent to destruction.

Five Key Points of Harmonious Construction

1) The courts must avoid a head on clash of seemingly contradicting provisions and they must
construe the contradictory provisions so as to harmonize them.
2) The provision of one section cannot be used to defeat the provision contained in another unless
the court, despite all its effort, is unable to find a way to reconcile their differences.
3) When it is impossible to completely reconcile the differences in contradictory provisions, the
courts must interpret them in such as way so that effect is given to both the provisions as much
as possible.
4) Courts must also keep in mind that interpretation that reduces one provision to a useless number
or dead is not harmonious construction.
5) To harmonize is not to destroy any statutory provision or to render it fruitless.

Construction to avoid collision with other provision

• Repugnancy to be avoided
• Construction of provisos
• Repeal by implication not favoured
• Generalia specialibus non derogant (the provisions of a general statute must yield to those of a
special one)

Repugnancy to be avoided
• If two sections of an Act cannot be reconciled, as they may be absolute contradiction, it is often said
that the last must prevail. But this should be accepted only in the last resort.
• It is not doubt true that if two sections of an Act of Parliament are in truth irreconcilable, then prima
facie the latter will be preferred. But these are the arguments of the last resort. The first duty of the
court must be, if the result is fairly possible, to give effect to the whole expression of the
parliamentary intention.
• Sometimes it is difficult to decide whether provisions of the same enactment are overlapping or
mutually exclusive.

Bourne v. Stanbridge [1965]

The provision in Order 47 of the County Court Rules 1936 that “the scale of costs in an action for
recovery of a sum of money only shall be determined … as regards the costs of the plaintiff, by amount
recovered” was not construed as peremptory, for this would have brought it out of harmony of earlier
provision in the same Order that “the costs of preceedings in a County Court shall be in the discretion of
the Court.”

Dent v. Dent [1962]

Rule 63 of Matrimonial Causes Rules 1957 (“an application for attachment or committal shall be made
to a judge”) simply made inapplicable in appropriate cases that part of an earlier rule which provided
that application in a matrimonial cause or matter should be made to a registrar and by summons.

Construction of provisos
• Important Point: Provisos have no existence, separate and apart from the provision which it is
designed to limit. If it was not intended to restrain the general clause, it was nullity.
• General rule – inconsistencies can be avoided by applying the general rule that the words of a
proviso are not to be taken “absolutely in their strict literal sense”, but that a proviso is “of necessity
… limited in its operation to the ambit o the section which it qualifies.”
• Proviso receives restricted construction.

Dormer v. Newcastle-upon-Tyne Corporation [1940]

Section 65 of the Newcastle-upon-Tyne Improvement Act 1865 contained a proviso that “nothing in this
Act shall authorise the corporation … to do … any act … amounting to a nuisance.” This was held to be
limited in its operation to the group of sections (dealing with sewers and sanitary arrangements) of
which section 65 formed part and not to qualify the powers of the corporation under an earlier section of
the Act to maintain posts, pillars, and rails in any street. s

Repeal by implication not favoured

• A later statute may repeal an earlier one either expressly or by implication. But repeal by implication
is not favoured by the courts. For instance, Coke said, “as Acts of Parliments are established with
such gravity, wisdom and universal consent of the whole realm, for the advancement of the
commonwealth, they ought not by any constrained construction out of the general and ambiguous
words of a subsequent Act, to be abrogated.
• The doctrine of implied repeal ( a concept in constitutional theory that where an Act of Parliament
conflicts with an earlier one, the later Act takes precedence and the conflicting parts of the earlier
Act becomes legally inoperable) – Latin “leges posteriores priores contrarias abrogant” is a
disfavoured doctrine.
• If earlier and later statutes can reasonably be construed in such a way that both can be given effect
to, this must be done.

Hill v. Hall [1863]

A local Act, in directing that the chimneys of buildings should be of such materials as the corporation
approved, did not affect the requirement of section 6 of the earlier and general Chimneys Act 1840 that
chimneys should be built of stone or brick.

Bury v. Cherryholm [1876]

A by-law made under the Elementary Education Act 1870, requiring children to attend school so long as
it was open for instruction for children of the same sex, age and class, was held not to be contrary to
section 14 of the Workshop Regulation Act 1867, which required that children under thirteen employed
in a workshop should be sent to school for at least ten hours weekly.

Examples of repeal by implication

• The provisions of later enactment are so inconsistent with or repugnant to the provisions of an earlier
one that the two cannot stand together, the earlier is abrogated by the later.

Read v. Storey [1861]

Where one general Act exempted from licensing regulations the sale of certain kind of beer (that sold for
not more than 1n1/2 a quart) and subsequent one enacted that no person should sell “any beer” without a
license, it was clearly impossible to save the former from the repeal implicit in the latter.

Generalia specialibus non derogant

• Generalia specialibus non derogant (the provisions of a general statute must yield to those of a
special one) - If two provisions are in conflict, the more specific one will prevail of the more general
one.
• A general statutory provision does not repeal a specific one. The rule may apply either to two
separate statutes , or to provisions within the same Act.
• However, if the two provisions deal with different topics when the maxim can not be applied.
• Cf. Hawkins v. Gathercole [1855] - “Where there are general words in a later Act capable of
reasonable and sensible application without extending them to subjects specially dealt with by earlier
legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or
derogated from merely by force of such general words, without any indication of a particular
intention to do so.”

Seward v. The Vera Cruz [1884]

Section 7 of the Admiralty Court Act 1861, which gave jurisdiction to that court “over any claim for
damage done by any ship” was held not relate to an action for damages for loss of life under the Fatal
Accidents Act 1846, actions under that Act being in respect of a special class of claims involving
numerous and important consideration which the legislature could not be supposed to have had in mind
in using a words of so general a character.

Exceptional Construction
1. Modification of the language to meet the intention
2. Equitable Construction
3. Strict Construction of Penal laws
4. Statutes encroaching on rights or imposing burdens
• The rule of exceptional construction stands for the elimination of statutes and words in a statute
which defeat the real objective of the statute or make no sense. It also stands for construction of
words ‘and’, ‘or’, ‘may’, ‘shall’ & ‘must’.
• While ‘and’ is normally considered conjunctive so that both provisions of a statute can be satisfied,
‘or’ is used of satisfying the clauses or either of the provisions in a statute. ‘shall’ is considered to
have a mandatory force and is used in cases of statutes providing specific penalty. ‘Must’ on the
other hand had a directory force and is used for statutes against the government or using a mandatory
force may result in absurd results. While this rule seems simple, the draftsmanship lies in deciding
whether the statute should use a mandatory for or a directory force.

Modification of the language to meet the intention

• Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a
manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or
absurdity which can hardly have been intended, a construction may be put upon it which modifies
the meaning of the words and even the structure of the sentence. This may be done by departing
from the rules of grammer, by giving an unusal meaning to particular words, or by rejecting them
altogether, on the ground that the legislature could not possibly have intended what its words signify,
and that the modifications made are mere corrections of careless language and really give the true
meaning.
• Where main object and intention of a statute are clear, it must not be reduced to a nullity by the
draftsman’s unskillfulness or ignorance of the law.
• The cannons of construction are not so rigid as to prevent a realistic solution. (Maxwell, p 228)
• Obvious oversights
– The Beta (1869): Section 374 of the Merchant Shipping Act 1854, which enacted that no
licence granted by Trinity House to pilots “shall continue in force beyond the 31st of
January” after its date, but that “the same may …. Be renewed on such 31 st day of January in
every year, or any subsequent day,” was construed as meaning, not that the renewed licences
must be actually issued on or after that day, but that they should take effect from 31st
January. This departure from the strict letter was justified by the great inconvenience which
would have resulted from a rigid adherence to it, since it would have left a whole district for
days or even weeks without qualified pilots.
• Substitution of words: Where the sense of the statute demands it or where there has been an obvious
mistake in drafting, a court will be prepared to substitute another word or phrase for that which
actually appears in the text of the Act.

Eton College v. Minister of Agriculture, Fisheries and Food [1964]

The Ecclesiastical Leases Act 1571 refers to lease made by colleges, deans and chapters, masters or
guardians of hospitals, and any “parson, vicar, or any other having any spiritual or ecclesiastical living,
or any houses, lands, tithes, tenements, or other hereditaments.” Wilberforce J. said that it was quite
clear that the word italicised was a mistake for “of,” and proceeded to apply the Act on that assumption.
• “and” and “or”
– Example: The Disabled Soldiers Act 1601, for example, in speaking of property to be
employed for the maintenance of “sick and maimed soldiers,” referred to soldiers who were
either sick or maimed and not only to those who were both.
– R. v. Newbould [1962]: The expression “local and public authorities” in section 4(2) of the
Prevention of Corruption Act 1916 has been held by Winn J. not to “mean authorities which
are both local and public … [but] authorities which are either local or public.”
• “May” and “Must”
In ordinary usage, “may” is permissive and “must” is imperative, and, in accordance with such usage,
the word “may” in a statute will not generally be held to be mandatory. In some case, however, it has
been held that expressions such as “may”, or “shall have power” or “shall be lawful” have to say the
least a compulsory force, and so their meaning has been modified by judicial exposition.
• R v. Roberts [1901]: Section 31 of the Weights and Measures Act 1889, which provided that an
inspector “may take in respect of the verification and stamping of weights, measures and weighing
instruments the fees specified,” was held to be obligatory and to impose on the inspector a duty to
take the fees in all cases.
• Baron Inchyra v. Jennings (Inspector of Taxes) [1966]
Section 134(1) of the Income Tax Act 1952: “Subject to the provisions of this section, all income in
respect of which a person is chargeable under Case IV of Schedule D or under Case V of Schedule D
may respectively be assessed and charged in one sum.” It was held that in subsection 1, the word
‘may’ should be read as mandatory. The effect of these provisions is that income in respect of all
foreign possessions is lumped together and comprised in a single assessment……”

Equitable Construction
• By “equitable construction,” the judges have sometimes meant nothing more than construction in
accordance with the intention of the legislature. ‘Within the equity means’ the same things as ‘within
the mischief of the statute.’
• Experience shows us that no lawmakers can foresee all things which may happen, and therefore, it is
fit that if there be any defect in the law, it should be reformed by equity.
• Platt v. Sheriffs of London [1550]: The prisoners for Debt Act 1377, forbidding the warden of the
Fleet to suffer his prisoners for judgment debts to go at large until they had satisfied their debt, was
held to include all gaolers.
• The Statute of Gloucester, in speaking of London, was considered as intending to include all cities
and boroughs and the statute of writ Circumspecte Agatis (an English statute issued in 1285 by King
Edward I), which directed the judges not to interfere with the Bishop of Norwich or his clergy in
spiritual suits, was construed as protecting all other prelates, the Bishop of Norwich being put but for
an example.

Strict Construction of Penal laws

• The rule that statutes imposing criminal or other penalties should be construed narrowly[..] more
rigorously applied in former times when the number of capital offences were still very large e.g.
when it was still punishable with death to cut down a cherry tree in an orchard or to be seen for a
month in the company of gipsies. – Maxwell, p.238
– Express language necessary for creation of criminal offences
– Strict construction of words setting out the elements of an offence
– Punishment
– Jurisdiction and procedure
– Wide sense given to words

Express language necessary for creation of criminal offences

• No act is to be deemed criminal unless it is clearly made so by the words of the statute concerned.
• A mere declaration that “all lotteries are unlawful” does not create any offence on which a
prosecution can be based.
• An act or omission may constitute an offence without any particular penalty being specified in the
statute concerned.

Strict construction of words setting out the elements of an offence

• If there is any ambiguity in the words which set out the elements of an act or omission declared to be
an offence, the ambiguity will be resolved in favour of the person charged.

Strict construction of elements of an offence

• R v. Child [1830]
The Riot Act 1714 which made it a felony for rioters to remain assembled for more than an hour
after the reading of the proclamation, was held fail to have effect in the proclamation was not made
precisely as it stood in the Act […]

Strict construction of words setting out the elements of an offence

• Nagy v. Weston [1965]
Section 121(1) of the Highways Act 1959: “If a person, without lawful authority or excuse, in any
way willfully obstructs the free passage along a highway he shall be guilty of an offence.” For a
charge under this provision to succeed, it has been held essentially that there be proof that the
obstruction was an unreasonable one.
• Smaje v. Balmer [1965] – question whether ‘stone’ falls under the scope of “any dangerous or
offensive weapon or instrument” in section 28(1) of the Larceny Act 1916

Punishment
• Punishment can be imposed only if the circumstances of the case fall clearly within the words of the
enactment.
• R. V. Williams [1962]
The disqualification from holding a driving license could not be imposed under the Road Traffic Act
1930, Section 6(1) on a person convicted of stealing a car who was not also convicted of taking and
driving away (for the latter offence, but not the former, was in the relevant Schedule), even though
he asked for other offences, including that of taking and driving away, to be taken into consideration.
• Can be applied Discretion of the judge if allowed by the wording of the Statutes, considering
age, circumstances, maturity etc.

Jurisdiction and procedure

• Jurisdiction and procedure relating to penal laws are, if they relate to the infliction of penalties,
strictly construed. If there is any ambiguity or doubt, it will as usual, be resolved in accused’s
favour.
• R v. Norham and Islandshire Justices [1961] – question relating to procedure of pleading guilty by
letter

Wide sense given to words

• Where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the
canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and
against the legislature which has failed to explain itself. If there is no ambiguity or doubt, and the act
or omission in question falls clearly within the mischief of the statute, construction of penal statute
differs little.
• Bowers v. Gloucester Corporation [1963]
-Bowers was a licensed hackney carriage proprietor, and under the Town Police Clause Act 1847 the
Corporation had power to revoke his license if he were convicted for “the second time … for any
office” under the Act or by-laws. The Recorder of Gloucester held that a possible construction of the
Act was that it applied only to a conviction for the second time of the same offence, that the Act was
ambiguous, and that, having regard to such ambiguity, it should be construed in favour of Bowers.
The Divisional Court allowed the Corporation’s appeal.

-Interpretation of “any offence” – (i) their ordinary or literal meaning was clear; (ii) it was confirmed
by the mischief aimed at, which was “clearly that a strict control should be kept on taxicab drivers or
proprietors”; and also by (iii) “the complete absurdity which arises … if a man can show himself to
be utterly unfitted to be a … driver or proprietor by committing 30, 40 or 50 offences, and yet not
have his license revoked because he has always committed a different offence.
-In this case, words of penal statutes were given a wide construction.

English cases including R v. Boyle [1954]

The “breaking” required to constitute burglary includes acts which would not be so regarded in popular
language, such as lifting the flap of a cellar, or raising a latch, or coming down a chimney. Indeed, the
burglary “breaks” into a house if he gains admittance by inducing the householder to open the door by
trick, as by pretending to be an employee of the British Broadcasting Corporation investigating
interference on the radio.

R v. Jepson [1767], R. v. Lloyd [1767], R. v. Williams [1843] and R. v. Grimwade [1844]

A threatening letter is “sent” when it is dropped in the way of the person for whom it is destined, so that
he may pick it up, or is affixed in some place where he would be likely to see it, or is dropped on a
public road near his house so that it may, however indirectly, reach him, which it eventually does after
passing through several hands, although in none of these cases would the paper colloquially be said to
have been “sent.”

Statutes encroaching on rights or imposing burdens

• Statutes encroaching on rights
• Statutes imposing burdens

Statutes encroaching on rights

• Statutes which encroach on the rights of the subject, whether as regards person or property, are
subject to a strict construction in same way as penal acts. It is a recognized rule that they should be
interpreted, if possible, so as to respect such rights, and if there is any ambiguity the construction
which is in favour of the freedom of the individual should be adopted. One aspect of this approach to
legislation is the presumption that a statute does not retrospectively abrogate vested rights; another is
the presumption that proprietary rights are not taken away without provision being made for
compensation.
• If there is any ambiguity about the extent of derogation, the principle is clear that it is to be resolved
in favour of maintaining common law rights unless they are clearly taken away. The well-established
presumption is that the legislature does not intend to limit vested rights further than clearly appears
from the enactment.

R. v. Waterfield [1964]
By Section 223 of the Road Traffic Act 1960: “A person driving a motor vehicle on a road … shall stop
the same on being so required by a police constable in uniform.” Did this authorize a policeman to
detain a car parked in a market place, which had been involved in an accident earlier in the day? The
Court of Criminal Appeal held that it did not. The judge said, “It is to be observed that this section is
merely giving a power as opposed to laying down a duty. It seems to the court that it would be an invalid
exercise of the power given by this section if, as here, the object of its exercise was to do something …
which … the constable had in the circumstance no right to do.

Harrod v. Worship [1861]

A local Harbour Act, which imposed a penalty on “any person who placed articles “on any quay, wharf,
or landing-place, within ten feet of the quay-head, or on any space of ground immediately adjoining to
the said haven, and within the space of ten feet from high-water mark” so as to obstruct the free passage
over it was held to apply only to ground over which there was already a public right way but not to
private property not subject to any such right […]

Case relating to Partnership Act 1865

Provisions of the Partnership Act 1865 to the effect that, when a loan to a trader bore interest varying
with the profits of the trade, the lender should not, if the trader became bankrupt, “recover any portion of
his principle” until the claims of the other creditors were satisfied, did not deprive the creditor of any
rights acquired by mortgage. Though he could not recover, he was still entitled to retain.

Statutes imposing burdens

• Statutes which impose pecuniary burdens are subject to the same rule of strict construction.
• It is well established rule of law that all charges upon the subject must be imposed by clear and
unambiguous language, because in some degree they operate as penalties: the subject is not taxed
unless the language of the statute clearly imposes the obligation and language must not be stained in
order to tax a transaction which, had the legislature thought of it, would have been covered by
appropriate words.
• Example: Tax laws
– There is no room for any intendment.
– There is no equity about a tax.
– There is no presumption as to a tax.
– Nothing is to be read in, nothing is to be implied.
– Strictness of interpretation may not always ensure to the subject’s benefit for “if the person
sought to be taxed comes within the letter of the law he must be taxed, however great the
hardship may appear to the judicial mind to be.

Statutes Imposing Powers

• Where a statute confers a power, and particularly one which may be used to deprive the subject of
proprietary rights, the courts will confine those exercising the power to the strict letter of the statute.

Pocklington v. Melksham [1964]

Section 21 of Housing Act 1957 provides that “a demolition order ... Shall require (a) that the premises
shall be vacated within a period to be specified in the order, not being less than twenty eight days from
the ate on which the order becomes operative, and (b) that the premises shall be demolished within six
weeks after” the expiration of that period or such longer period as the local authority should deem
reasonable. This was held not to authorize a country court judge to order that the premises be
demolished within seven years: “to make such an order is to fly in the face of the Act.”

Private Acts
• Private Acts – namely personal and local laws
• Most strictly construed statutes are private statutes or Acts because by their very nature, they create
exceptions to the general law of the realm.

Unit V: Presumptions
Presumptions
• Presumption means assuming something to be true. Therefore, the expression “presumption in
interpretation” would mean that while construing a statute or any provision thereof, the courts must
deem certain things to be true and correct. In other words, the courts must proceed to interpret with
the conception of correctness of certain things.
– Presumption against the common law
– Presumption of constitutionality of a statute
– Presumption regarding jurisdiction
– Presumption against retrospective legislation
 – Presumption against violation of international law
– Presumption against intending injustice or absurdity
– Presumption against impairing obligation or permitting advantages from one’s wrong
– Presumption against intending what is inconvenient or unreasonable
Presumption against the common law
• It is presumed that the legislature does not intend to make changes in the existing law beyond that
which is expressly stated in, or follows by necessary implication from, the language of the Statute in
question. – Maxwell, p.116
• If the arguments on a question of interpretation are “fairly evenly balanced, that interpretation should
be chosen which involves the least alteration of the existing law.” – Maxwell, p.116
• In the case of a consolidating Act there is a particularly strong presumption that it does not alter the
law contained in the statutes which it replaces. The reason is that “it is the invariable practice of
Parliament to require from those who have prepared a consolidation Bill on assurance that it will
make no substantial change in the law and to have that checked by a committee.” -– Maxwell, p.116
• Leach v. R [1912]: Section 4(1) of the Criminal Evidence Act 1898 provides that the spouse of a
person charged with an offence under any enactment mentioned in the schedule to the Act may be
called as a witness either for the prosecution or for the defense. This was held by the House of Lords
in Leach v. R only to make a wife a competent witness against her husband, and not to have what the
Earl of Halsbury called “perfectly monstrous” result of making her compellable. “The principle”,
said Lord Atkinson, “that a wife is not compelled to give evidence against her husband is deep
seated in the common law of this country, and I think if it is to be overturned it must be overturned
by a clear, definite and positive enactment, not by an ambiguous one such as the section relied upon
in this case.”
• Re Makein (deceased) [1955]: Reference to personal relationships in an Act are presumed to connote
those relationships as they are understood at common law. Thus, an illegitimate infant son could not
claim as a dependent under the Inheritance (Family Provision) Act 1938.
• Sowa v. Sowa [1961]: the Court of Appeal held that the phrase “married woman” in the
Matrimonial Causes Acts and the Summary Jurisdiction Acts relating to matrimonial matters
referred only to wives of monogamous marriages.
• Statutes plainly and unambiguously altering the common law – But where the words of a statute are
plain and unambiguous, and an intention to alter the common law is evident from the words of Act,
there is no place for the application for the presumption which the foregoing cases illustrate.

Presumption of constitutionality of a statute

• Every statute enacted by the Legislature is considered to be valid. There is a strong presumption in
favor of the validity of an enactment. It is presumed that every law is able to pass the test of
constitutionality.
• The Constitution is the supreme authority and every law is subordinate to it. Therefore, a law which
is inconsistent with or ultra vires to the Constitution cannot survive and the court should not hesitate
to strike down such a law. However, the court should not hastily infer that a law is ultra vires the
Constitution.
• While interpreting a statute or a provision, the courts have to proceed with the presumption that a
particular law is intra vires and does not confront the Constitution. Therefore, the court shall not
invalidate a law on the ground of unconstitutionality unless strong reasons exist to do so.
• A presumption of constitutionality shifts the burden of proof from the government to the citizen,
requiring them to prove that a statute is unconstitutional.
• In Federalist 78, Alexander Hamilton wrote that courts should only be able strike down a statute as
unconstitutional if there is an "irreconcilable variance" between the statute and the Constitution.
Otherwise, a statute should be upheld.
• C.S.T., M.P. v. Radhakrishnan [1979]: It was held by Supreme Court that in considering the validity
of a statute, presumption is in favour of its constitutionality and the burden to prove it ultra vires is
on one who so claims.

Presumption regarding jurisdiction

• In simple terms, “jurisdiction” means the power of a court to hear, try and determine a case and to
adjudicate upon it.
• When parties appear before a Court in connection with a dispute, the first and foremost question is
whether that court is competent to exercise the judicial power or jurisdiction. A judgment
pronounced by a Court without jurisdiction is void.
• The well-known rule that a statute should not be construed as taking away the jurisdiction of the
courts in the absence of clear and unambiguous language of that effect. – Maxwell, p. 153
• When the jurisdiction of a court is challenged, the burden to prove that the court does not have
jurisdiction shall lie on the party questioning it. The court is competent to determine the question of
its own jurisdiction. The court may, after necessary hearing decide that it has or does not have
jurisdiction to deal with the matter pending before it.
• There is a strong presumption against ouster or restriction of jurisdiction of a court. It is only the
Legislature which can take away the jurisdiction of a court but unless such intention is clear, the
court cannot be deprived of its jurisdiction. However, ouster (removal) of jurisdiction of a court
should not be readily accepted. The presumption is that the court has jurisdiction unless otherwise
proved beyond doubt.
• The jurisdiction of court cannot be taken away by putting a particular construction upon an Act of
the Legislature. When the language is doubtful, the courts will lean against such construction which
would lead to ouster of the jurisdiction of the court.
• It is also presumed that a statute does not create new jurisdiction or enlarge existing ones, and
express language is required if an Act is to be interpreted as having this effect.
• Smith v. Brown [1871]: A statue (Section 7 of Admiralty Court Act 1861) which conferred on a
court jurisdiction over “any claim for damage done by any ship” was held not to confer on it
jurisdiction over actions for personal injuries sustained in collisions at sea. Sir Alexander Cockburn
C.J. said that it was “impossible to suppose that the legislature can have intended, under a general
enactment… as it were by a side-wind, to effect so material a change in the rights and relative
positions of parties concerned in such an action.
• In the case of The Vera Cruz, the house of Lords held that the same enactment did not transfer to the
court of Admiralty jurisdiction over actions under the Fatal Accidents Act 1846.

Presumption against retrospective legislation

• Upon the presumption that the legislature does not intend what is unjust rests the leaning against
giving certain statutes a retrospective operation. They are construed as operating only in cases or on
facts which come into existence after the statutes were passed unless a retrospective effect is clearly
intended. – Maxwell, p. 215
• It is a fundamental rule of English law that no statute shall be construed to have a retrospective
operation unless such a construction appears very clearly in terms of the Act, or arises by necessary
and distinct implication. – Maxwell, p. 215
• R.S. Wright J in Re Athlumney [1898]: “Perhaps no rule of construction is more firmly established
than this – that a retrospective operation is not to be given to a statute so as to impair an existing
right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be
avoided without doing violence to the language of the enactment. If the enactment is expressed in a
language which is fairly capable of either interpretation, it ought to be construed as prospective
only.” – Maxwell, p. 216

Presumption against retrospective legislation

• Key points
– Generally, the presumption against retrospective operation is applied and also in case of
pending actions
– Procedural Acts – The presumption against retrospective construction has no application to
enactments which affect only the procedure and practice of the courts.
– Retrospective statutes if plainly expressed

Presumption against violation of international law

• According to settled rules of interpretation of statutes, it is presumed that the legislature does not to
enact anything contrary to international law or the common law of the realm. All enactments are
presumed to be in tune with the international law. It is presumed that the statutes do not violate rules
of international law.
• But if a statute is clearly inconsistent with international law or the comity of nations, it must be so
construed, whatever the effect of such a construction may be.

Presumption against violation of international law

• It should be noted that as between two possible constructions, that which is comfortable to
international law as declared is to be preferred to that which would involve infringement of the right
of other communities. – Bindra, p. 204
• PUCL v. Union of India case [2005] : The Supreme Court was required to interpret 3(2) of the
Protection of Human Rights Act 1993 which stipulates that the Commission shall consist of two
members to be appointed from amongst persons having ‘knowledge of, or practical experience in,
matters relating to human rights.’
• The question before the Court was whether a police officer would fall in the category stipulated
under this provision and was the appointment of such person consistent with the language of the
section and the true intendment of the Act.
• ‘Paris Principles’ on the establishment of human rights institutions adopted by the UN in 1991
encouraged human rights institutions to have as little governmental interference as possible.
Therefore, ‘Paris Principles’ must not be derogated from and consequently the appointment should
not be allowed.
• Indian cases relating to the relevant date for determining the age of the accused (Umesh Chandra v.
State of Rajasthan[1982] and recent cases): The constitutional bench ruled that the relevant date is
the date of occurrence of the offence and not the date of production before the court. In arriving at
this conclusion the court took note of the fact that the Juvenile Justice Act 2000 specially refers to
international law. The relevant provisions of the United Nations Standard Minimum Rules for
 Administration of Juvenile Justice 1985 were incorporated therein. Although international treaties,
covenants and conventions may not be part of Indian Municipal law insofar as India was a party to
the said treaties the same could be referred to and followed by the courts. The Constitution of India
and other ongoing statutes have been read consistently with the rules of international law.

• Bindra points out that legislation of a state, even in contravention of generally acknowledged
principles of international law, is binding upon and must be enforced by the courts of the state. If the
language of a legislative enactment unambiguously and without reasonably admitting of any other
meaning is in conflict with any principle of international law, the court must obey and administer it
as it stands whatever may be the responsibility incurred by the nation to foreign powers in executing
such a law, for the courts cannot question the authorities of parliament or assign any limits to its
power.
• Note: Legislature presumed not to enact contrary to international law but municipal courts are bound
by enacted law.

Presumption against intending injustice or absurdity

• A sense of the possible injustice of an interpretation ought not to induce judges to do violence to
well-settled rules of construction, but it may properly lead to the selection of one rather than the
other of two reasonable interpretations.
• Whenever the language of the legislature admits of two constructions and, if construed in one way,
would lead to obvious injustice, the courts act upon the view that such a result could not have been
intended, unless the intention to bring it about has been manifested in plain words.
• If the court is to avoid a statutory result that flouts common sense and justice it must do so not by
disregarding the statute or overriding it, but by interpreting it in accordance with the judicially
presumed parliamentary concern for common sense and justice.
• The possibility of injustice which leads the court to adopt a particular construction must be real one,
should not be purely hypothetical.
• The same general rule applies where the result of one of two interpretations would be to lead to an
absurdity.
• Whenever the language of the legislature admits of two constructions and, if construed in one way,
would lead to obvious absurdity, the courts act upon the view that such a result could not have been
intended, unless the intention to bring it about has been manifested in plain words.
• R. v. Morris [1867]: A statute which enacts that a person who has been convicted by justices of an
assault and has suffered the punishment awarded for it shall be released from all other proceedings
“for the same cause” would not be construed as exempting him from prosecution for manslaughter if
the party assaulted afterwards died from the effects of the assault, as this would defeat the ends of
justice.
• I.R.C. v. R. Woolf (Rubber) Ltd. [1962]
In a case on the meaning of the word ‘member’ of a company as defined in section 255(2) of the
Income Tax Act 1952 – “any person having a share or interest in the capital or profits or income of
the company”
Question – Can certain debenture stockholders be members?
 The Court of Appeal refused to accept a construction on the ground of absurdities to which the
contention would lead.

Presumption against impairing obligation or permitting advantages from one’s wrong

• On the general principle of avoiding injustice and absurdity, any construction will, if possible, be
rejected if it would enable a person by his own act to impair an obligation which he has undertaken,
or otherwise to profit by his own wrong.
• A man may not take advantage of his own wrong. He may not plead in his own interest a self-created
necessity.
• London School Board v. Wood [1885]: A parent who sent his child to the board school without
also sending the school fees did not “cause the child to attend the school” within the meaning of
section 74 of the Elementary Education Act 1870.”
• ReSigsworth, Bedford v Bedford [1935]- A son murdered his mother. She had not made a will.
Under the statute setting the law on intestacy he was her sole issue and stood to inherit her entire
estate.
Under Section 46 of the Administrative of Estate Act 1925, a person could not inherit the estate of
the decease if they had murdered that other person, otherwise the murderer would benefit from
his/her crime.
The court applied the Golden rule holding that an application of the literal rule would lead to a
repugnant result. The court held that under Section 46 of the Administrative of Estate Act 1924, a
son who had murdered his mother could not benefit from that crime even though there was only one
literal meaning of the word ‘issue’ (i.e. blood offspring) in the Act.

Presumption against intending what is inconvenient or unreasonable

• In determining either the general object of the legislature, or the meaning of its language in any
particular passage, it is obvious that the intention which appears to be most in accord with
convenience, reason, justice and legal principle should, in all cases of doubtful significance, be
presumed to be the true one.
• An intention to produce an unreasonable result is not to be imputed to a statute if there is some other
construction available.
• The question of inconvenience or unreasonableness must be looked at in the light of the state of
affairs at the date of the passing of the statute, not in the light of subsequent events.
• Duncan v. Dowding [1897]- A statute which authorized a constable to enter licensed premises at all
times to prevent or detect violations of the licensing laws was held not to entitle him to demand
admission unless he had some reasonable ground for suspecting a breach of the law.
• Thompson v. Thompson [1965]- Section 16(2) of the Matrimonial Causes Act 1950, now Section
14(3) of the Matrimonial Causes Act 1965 in proceedings for a decree of presumption of death and
dissolution of marriage, “the fact that for a period of seven years or upwards the other party to the
marriage has been continually absent from the petitioner, and the living within that time, shall be
evidence that he or she is dead until the contrary is proved.” It was held that “reason to believe”
could only be derived from matters supervening during the seven year period and that the start of the
period was not postponed until such time as, on the common law rules of evidence, the spouse could
be presumed to be dead. The latter construction would “produce inconvenience and hardship to a
petitioner contrary to the apparent intentions of the legislature…”
• Marshall v. Ericsson Telephones [1964]- By Section 28(1) of the Factories Act 1961, all passages
and gangways, so far as is reasonably practicable, to be “kept free from any obstruction.” This
 section is “to be applied in a practical manner, dealing with conditions in a factory where ordinary
work is going on” and is not to be “construed as treating anything that happens to stop for a moment
in the place defined for movement and transit as being an obstruction.” Therefore, the section was
not infringed where a trolley was placed in a passageway for uploading in the normal course of
working.

Presumption against intending what is inconvenient or unreasonable

Key points:
• Unreasonable and inconvenient are to be avoided.
• Artificiality and anomaly to be avoided
• The more reasonable construction to be adopted.