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INTERPRETATION OF STATUTES
CA. Rajkumar S. Adukia B.Com (Hons.), FCA, ACS, ACWA, LL.B, DIPR, DLL & LP, MBA, IFRS(UK) 098200 61049/ email id: rajkumarradukia@caaa.in Website: www.caaa.in
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Index
Introduction Meaning and Classification of Statutes Latin language and its importance in Statutory Construction Interpreting the Statutes Presumptions in statutory interpretation Rules and Aids of Interpretation Rules of Interpretation Internal Aids to Interpretation External Aids to Interpretation
INTRODUCTION
“the essence of law lies in the spirit, not its letter, for the letter is significant only as being the external manifestation of the intention that underlies it” - Salmond
Interpretation means the art of finding out the true sense of an enactment by giving the words of the enactment their natural and ordinary meaning. It is the process of ascertaining the true meaning of the words used in a statute. The Court is not expected to interpret arbitrarily and therefore there have been certain principles which have evolved out of the continuous exercise by the Courts. These principles are sometimes called ‘rules of interpretation’.
The object of interpretation of statutes is to determine the intention of the legislature conveyed expressly or impliedly in the language used. As stated by SALMOND, "by interpretation or construction is meant, the process by which the courts seek to ascertain the meaning of the legislature through the medium of authoritative forms in which it is expressed."
Interpretation is as old as language. Elaborate rules of interpretation were evolved even at a very early stage of the Hindu civilization and culture. The importance of avoiding literal interpretation was also stressed in various ancient text books – “Merely following the texts of the law, decisions are not to be rendered, for, if such decisions are wanting in equity, a gross failure of Dharma is caused.”
Interpretation thus is a familiar process of considerable significance. In relation to statute law, interpretation is of importance because of the inherent nature of legislation as a source of law. The process of statute making and the process of interpretation of statutes are two distinct activities.
In the process of interpretation, several aids are used. They may be statutory or non- statutory. Statutory aids may be illustrated by the General Clauses Act, 1897 and by specific definitions contained in individuals Acts whereas non-statutory aids is illustrated by common law rules of interpretation (including certain presumptions relating to interpretation) and also by case-laws relating to the interpretation of statutes.
Lord Denning in Seaford Court Estates Ltd. Vs Asher, “English Knowledge is not an instrument of mathematical precision… It would certainly save the judges from the trouble if the acts of parliament were drafted with divine precision and perfect clarity. In the absence of it, when a defect appears, a judge cannot simply fold hand and blame the draftsman…”
It is not within the human powers to foresee the manifold permutations and combinations that may arise in the actual implementation of the act and also to provide for each one of them in terms free from all ambiguities. Hence interpretation of statutes becomes an ongoing exercise as newer facts and conditions continue to arise.
(ii) Temporary statutes - A statute is temporary when its duration is only for a specified time and it expires on the expiry of the specified time unless it is repealed earlier.
B. Classification with reference to Nature of Operation
(i) Prospective statutes – A statute which operates upon acts and transactions which have not occurred when the statutes takes effect, that is which regulates the future is a Prospective statute.
(ii) Retrospective statutes – Every statute takes away or impairs vested rights acquired under the existing laws or creates a new obligation into a new duty or attaches a new disability in respect of transactions or considerations already passed are deemed retrospective or retroactive statute.
(iii) Directory statutes – A directory statute is generally affirmative in its terms, recommends a certain act or omissions, but imposes no penalty on non-observance of its provisions.
(iv) Mandatory statutes – A Mandatory statute is one which compels performance of certain acts and directs that a certain thing must be done in a certain manner or form. A type of Mandatory Statute is the Imperative Statute. Imperative Statutes are often negative or prohibitory in its terms and makes certain acts or omissions absolutely necessary and subjects a contravention of its provision to a penalty.
When the statute is passed for the purposes of enabling something to be done and prescribes the formalities which are to attend its performance, those prescribed formalities which are essential to the validity of the things which are done are called imperative or absolute, but those which are not essential and may be disregarded without invalidating the things to be done are called directory statutes. Imperative Statutes must be strictly observed. Directory Statute may be substantially complied with.
C. Classification with reference to Objective
(i) Enabling statutes – These statutes are which enlarges the common law where it is too strict or narrow. It is a statute which makes it lawful to do something which would not otherwise be lawful.
(ii) Disabling statutes – These statutes restrict or cut down rights existing at common law.
(iii) Permissive statute – This type of statute allows certain acts to be done without commanding that they be performed.
(iv) Prohibitory statute – This type of statute which forbids the doing of certain things.
(v) Codifying Statute – It presents and orderly and authoritative statement of the leading rules of law on a given subject, whether those rules are to be found in statute law or common law.
(vi) Consolidating statute – The purpose of consolidating statute is to present the whole body of statutory law on a subject in complete form repeating the former statute.
(vii) Curative or validating Statute - It is passed to cure defects in the prior law and too validate legal proceedings, instruments or acts of public and private administrative powers which in the absence of such statute would be void for want of conformity with existing legal requirements but which would have been valid if the statute has so provided at the time of enacting.
(viii) Repealing Statute – A statute which either expressly or by necessary implication revokes or terminates another statute is a repealing statute.
(ix) Amending Statute – It is a Statute which makes and addition to or operates to change the original law so as to effect an improvement or more effectively carry out the purpose for which the original law was passed.
LATIN LANGUAGE AND ITS IMPORTANCE IN STATUTORY
CONSTRUCTION
Latin language (Lingua Latina) is an Italic language originally spoken in Latium (Rome). The Italic subfamily is a member of the Indo-European language family. The Indo-European languages are a family of several hundred related languages and dialects. This broad family includes most of the European languages spoken today. The Indo-European family includes several major branches: Latin and the modern Romance languages (French etc.); the Germanic languages (English,
write languages other than Latin. J is a variant of I. U is a variant of V. In Latin the /u/ sound was written with the letter v, e.g. IVLIVS (Julius). W was originally a doubled v (vv) and was first used by scribes writing Old English during the 7th century AD, however the Runic letter Wynn was more commonly used to write the /w/ sound. After the Norman Conquest the letter W became more popular and had replaced Wynn by 1300.
Some common Latin phrases used in statutory construction are:
- NOSCITUR A SOCIIS - Words must be construed in conjunction with the other words and phrases used in the text. Legislative intent must be ascertained from a consideration of the statute as a whole. The particular words, clauses and phrases should not be studied as detached and isolated expressions,
but the whole and every part of the statute must be considered in fixing the meaning of any of its parts and in order to produce a harmonious whole. Where a particular word or phrase in a statement is ambiguous in itself or is equally susceptible of various meanings, its true meaning may be clear and specific by considering the company in which it is found or with which it is associated.
- EJUSDEMGENERIS Where a statute describes things of particular class or kind accompanied by words of a generic character, the generic words will usually be limited to things of a kindred nature with those particularly enumerated, unless there be something in the context of the statute to repel such influence. Ejusdem generis could be expansive, however, because the list is not exclusive; it may be expanded if a juridical tie could be found with another item.
- EXPRESSIO UNIUS EST EXCLUSION ALTERIUS The express mention of one person, thing, or consequence implies the exclusion of all others.
Variation: Expressium facit cessare tacitum. What is expressed puts an end to what is implied. Where a statute is expressly limited to certain matters, it may not, by interpretation or construction, be extended to other matters. Canon of restrictive interpretation. Where a statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or construction, be extended to others. The rule proceeds from the premise that the legislature would not have made specified enumerations in a statute had the intention been not to restrict its meaning and to confine its terms to those expressly mentioned.
- DISSIMILUM DISSIMILISEST RATIO The courts may distinguish when there are
facts and circumstances showing that the legislature intended a distinction or qualification.
- CASUS OMISSUS Casus omissus pro omisso habendus est. A person, object, or thing omitted from an enumeration in a statute must be held to have been omitted intentionally. This needs two laws. In expressio unius, it is just the enumeration you are looking at, not another law.
- UBI LEX NON DISTINGUIT NEC NOS DISTINGUERE DEBEMOS Where the law makes no distinctions, one does not distinguish. Where the law does not distinguish, courts should not distinguish.
- REDEENDO SINGULAR SINGULIS Referring each to each; let each be put in its proper place, that is, the words should be taken distributively.
INTERPRETING THE STATUTES
Interpretation of something means ascertaining the meaning or significance of that thing or ascertaining an explanation of something that is not immediately obvious. Construction and Interpretation of a statute is an age-old process and as old as language.
Interpretation of statute is the process of ascertaining the true meaning of the words used in a statute. When the language of the statute is clear, there is no need for the rules of interpretation. But, in certain cases, more than one meaning may be derived from the same word or sentence. It is therefore necessary to interpret the statute to find out the real intention of the statute.
Interpretation of statutes has been an essential part of English law since Heydon's Case in 1854 and although it can seem complex, the main rules used in interpretation are easy to learn.
Elaborate rules of interpretation were evolved even at a very early stage of Hindu civilization and culture. The rules given by ‘Jaimini’, the author of Mimamsat Sutras, originally meant for srutis were employed for the interpretation of Smritis also. (Law Commission of India, 60th Report, Chapter 2, para 2.2).
The concept of interpretation of a Statute cannot be static one. Interpretation of statutes becomes an ongoing exercise as newer facts and conditions continue to arise.
- The process of construction combines both the literal and purposive approaches. The purposive construction rule highlights that you should shift from literal construction when it leads to absurdity.
PRESUMPTIONS IN STATUTORY INTERPRETATION
Unless the statute contains express words to the contrary it is assumed that the following presumptions of statutory interpretation apply, each of which may be rebutted by contrary evidence.
Presumptions represent the accepted judicial view of a range of circumstances that have been predetermined to be the way in which every manifestation of those circumstances will be viewed, until any evidence to the contrary is produced. These tend to arise from theoretical and practical principles of the law.
- A statute does not alter the existing common law. If a statute is capable of two interpretations, one involving alteration of the common law and the other one not, the latter interpretation is to be preferred.
- If a statute deprives a person of his property, say by nationalization, he is to be compensated for its value.
- A statute is not intended to deprive a person of his liberty. If it does so, clear words must be used. This is relevant in legislation covering, for example, mental health and immigration.
- A statute does not have retrospective effect to a date earlier than its becoming law.
- A statute generally has effect only in the country enacted. However a statute does not run counter to international law and should be interpreted so as to give effect to international obligations.
- A statute cannot impose criminal liability without proof of guilty intention. Many modern statutes rebut this presumption by imposing strict liability; for e.g. -dangerous driving.
- A statute does not repeal other statutes. Any point on which the statute leaves a gap or omission is outside the scope of the statute.
RULES AND AIDS OF INTERPRETATION
The interpretation of statutes is a complex area of law and also an essential one. In the complex area of Interpretation, recourse can be had to the Rules and Aids of Statutory Interpretation.
Rules of Interpretation
A Rule is a uniform or established course of things. It is that which is prescribed or laid down as a guide for conduct or action; a governing direction for a specific purpose; an authoritative enactment; a regulation; a prescription; a precept; as, the rules of various societies; the rules governing a school; a rule of etiquette or propriety etc.
It should be remembered that these Rules are Rules of Practice and not Rules of Law. Without these rules, it would soon become impossible to not only understand the law but even just to apply it, as new situations are always coming to light which Parliament and the courts could not have foreseen when the law was developed.
Do judges really use the rules of statutory interpretation? If yes, which rule do they use first? – Judges rarely if ever, volunteer the information that they are now applying a certain rule of interpretation. Often, judges look to see if there can be a literal meaning to the words used in the disputed statutory provision. However there is no rule that states that they must use the literal rule first.
No Legal Rules exist which state which rule of Interpretation can be used and the rules of interpretation that have been identified, are not themselves legal rules.
Aids of Interpretation
An Aid, on the other hand is a device that helps or assists. For the purpose of construction or interpretation, the court has to take recourse to various internal and external aids.
Internal aids mean those materials which are available in the statute itself, though they may not be part of enactment. These internal aids include, long title, preamble, headings, marginal notes, illustrations, punctuation, proviso, schedule, transitory provisions, etc. When internal aids are not adequate, court has to take recourse to External aids. External Aids may be parliamentary material, historical background, reports of a committee or a commission, official statement, dictionary meanings, foreign decisions, etc.
B. Prabhakar Rao and others v State of A.P. and others , AIR 1986 SC 120 O.Chennappa, Reddy J. has observed : “Where internal aids are not forthcoming, we can always have
Supreme Court held that literal interpretation must be made and hence rejected the application as invalid.
Lord Atkinson stated, ‘In the construction of statutes their words must be interpreted in their ordinary grammatical sense unless there be something in the context or in the object of the statute in which they occur or in the circumstances in which they are used, to show that they were used in a special sense different from their ordinary grammatical sense.’
Meaning
To avoid ambiguity, legislatures often include "definitions" sections within a statute, which explicitly define the most important terms used in that statute. But some statutes omit a definitions section entirely, or (more commonly) fail to define a particular term. The plain meaning rule attempts to guide courts faced with litigation that turns on the meaning of a term not defined by the statute, or on that of a word found within a definition itself.
According to Viscount Haldane, L.C., if the language used has a natural meaning we cannot depart from that meaning unless, reading the statute as a whole, the context directs us to do so.
According to the plain meaning rule, absent a contrary definition within the statute, words must be given their plain, ordinary and literal meaning. If the words are clear, they must be applied, even though the intention of the legislator may have been different or the result is harsh or undesirable. The literal rule is what the law says instead of what the law means.
“Some laws are meant for all citizens (e.g., criminal statutes) and some are meant only for specialists (e.g., some sections of the tax code). A text that means one thing in a legal context might mean something else if it were in a technical manual or a novel. So the plain meaning of a legal text is something like the meaning that would be understood by competent speakers of the natural language in which the text was written who are within the intended readership of the text and who understand that the text is a legal text of a certain type.” (Prof. Larry Solum's Legal Theory Lexicon).
A literal construction would not be denied only because the consequences to comply with the same may lead to a penalty. The courts should not be over zealous in searching for ambiguities or obscurities in words which are plain. (Tata Consultancy Services V. State of A.P. (2005) 1 SCC 308)
Understanding the literal rule
The literal rule may be understood subject to the following conditions –
i. Statute may itself provide a special meaning for a term, which is usually to be found in the interpretation section. ii. Technical words are given ordinary technical meaning if the statute has not specified any other. iii. Words will not be inserted by implication. iv. Words undergo shifts in meaning in course of time. v. It should always be remembered that words acquire significance from their context.
When it is said that words are to be understood first in their natural ordinary and popular sense, it is meant that words must be ascribed that natural, ordinary or popular meaning which they have in relation to the subject matter with reference to which and the context in which they have been used in the Statute. In the statement of the rule, the epithets ‘natural, “ordinary”, “literal”, “grammatical” and “popular” are employed almost interchangeably to convey the same idea.
For determination of the meaning of any word or phrase in a statute, the first question is what is the natural and ordinary meaning of that word or phrase in its context in the statute but when that natural or ordinary meaning indicates such result which cannot be opposed to have been the intention of the legislature, then to look for other meaning of the word or phrase which may then convey the true intention of the legislature. In the case of ‘Suthendran V. Immigration Appeal Tribunal, the question related to Section 14(1) of the Immigration Act, 1971, which provides that ‘a person who has a limited leave under this Act to enter or remain in the United Kingdom may appeal to an adjudication against any variation of the leave or against any refusal to vary it. The word ‘a person who has a limited leave’ were construed as person should not be included “who has had” such limited leave and it was held that the section applied only to a person who at the time of lodging of his complaint was lawfully in the United Kingdom, in whose case, leave had not expired at the time of lodgment of an appeal.
Another important point regarding the rule of literal construction is that exact meaning is preferred to loose meaning in an Act of Parliament. In the case of Pritipal Singh V. Union of India (AIR 1982 SC 1413, P. 1419(1982)), it was held that there is a presumption that the words are used in an Act of Parliament correctly and exactly and not loosely and inexactly.
Rationale for this Rule
the sign is obviously to prevent people from using the lifts only if there is currently a fire nearby.
The second use of the golden rule is in a wider sense, to avoid a result that is obnoxious to principles of public policy, even where words have only one meaning. Example: The facts of a case are; a son murdered his mother and committed suicide. The courts were required to rule on who then inherited the estate, the mother's family, or the son's descendants. There was never a question of the son profiting from his crime, but as the outcome would have been binding on lower courts in the future, the court found in favour of the mother's family.
- The Mischief Rule
The mischief rule is a rule of statutory interpretation that attempts to determine the legislator's intention. Originating from a 16th century case (Heydon’s case) in the United Kingdom, its main aim 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. When the material words are capable of bearing two or more constructions the most firmly established rule or construction of such words “of all statutes in general be they penal or beneficial, restrictive or enlarging of the common law is the rule of Heydon’s case. The rules laid down in this case are also known as Purposive Construction or Mischief Rule.
The mischief rule is a certain rule that judges can apply in statutory interpretation in order to discover Parliament's intention. It essentially asks the question: By creating an Act of Parliament what was the "mischief" that the previous law did not cover?
Heydon’s case
This was set out in Heydon's Case [1584] 3 CO REP 7a. where it was stated that there were four points to be taken into consideration when interpreting a statute:
- What was the common law before the making of the act?
- What was the "mischief and defect" for which the common law did not provide?
- What remedy the parliament hath resolved and appointed to cure the disease of the commonwealth?
- What is the true reason of the remedy?
The office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the
cure and remedy, according to the true intent of the makers of the Act, pro bono publico.
The application of this rule gives the judge more discretion than the literal and the golden rule as it allows him to effectively decide on Parliament's intent. It can be argued that this undermines Parliament's supremacy and is undemocratic as it takes law- making decisions away from the legislature.
Use of this Rule
This rule of construction is of narrower application than the golden rule or the plain meaning rule, in that it can only be used to interpret a statute and, strictly speaking, only when the statute was passed to remedy a defect in the common law. Legislative intent is determined by examining secondary sources, such as committee reports, treatises, law review articles and corresponding statutes. This rule has often been used to resolve ambiguities in cases in which the literal rule cannot be applied.
In the case of Thomson vs. Lord Clan Morris, Lord Lindley M.R. stated that in interpreting any statutory enactment regard must be had not only to the words used, but also to the history of the Act and the reasons which lead to its being passed.
In the case of CIT vs. Sundaradevi (1957) (32 ITR 615) (SC), it was held by the Apex Court that unless there is an ambiguity, it would not be open to the Court to depart from the normal rule of construction which is that the intention of the legislature should be primarily to gather from the words which are used. It is only when the words used are ambiguous that they would stand to be examined and considered on surrounding circumstances and constitutionally proposed practices.
The Supreme Court in Bengal Immunity Co. V. State of Bihar, (AIR 1995 SC 661) applied the mischief rule in construction of Article 286 of the Constitution of India. After referring to the state of law prevailing in the province prior to the constitution as also to the chaos and confusion that was brought about in inter-state trade and commerce by indiscriminate exercise of taxing powers by the different Provincial Legislatures founded on the theory of territorial nexus, Chief Justice S.R.Das, stated “It was to cure this mischief of multiple taxation and to preserve the free flow of interstate trade or commerce in the Union of India regarded as one economic unit without any provincial barrier that the constitution maker adopted Article 286 in the constitution”.
In various Supreme Court cases it has been held that, ‘legislation both statutory and constitutional is enacted, it is true, from experience of evils. But its general language should not, therefore, necessarily be confined to the form that evil had taken. Time works changes, brings into existence new conditions and purposes and new awareness
- Rule of 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 rule of harmonious construction is the thumb rule to interpretation of any statute. 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”, in the words of the Apex Court, between the different parts of an enactment and conflict between the various provisions should be sought to be harmonized. The normal presumption should be consistency and it should not be assumed that what is given with one hand by the legislature is sought to be taken away by the other. The rule of harmonious construction has been tersely explained by the Supreme Court thus, “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.
It is a settled rule that an interpretation which results in hardship, injustice, inconvenience or anomaly should be avoided and that which supports the sense of justice should be adopted. The Court leans in favour of an interpretation which conforms to justice and fair play and prevents injustice (Union of India vs. B.S. Aggarwal) (AIR 1998 S.C. 1537).
When there are two provisions in a statute, which are in apparent conflict with each other, they should be interpreted such that effect can be given to both and that construction which renders either of them inoperative and useless should not be adopted except in the last resort.
This principle is illustrated in the case of Raj Krishna vs Binod AIR 1954. In this case, two provisions of Representation of People Act, 1951, which were in apparent conflict, were brought forth. Section 33 (2) says that a Government Servant can nominate or second a person in election but section 123(8) says that a Government Servant cannot assist any candidate in election except by casting his vote. The Supreme Court observed that both these provisions should be harmoniously interpreted and held that a Government Servant was entitled to nominate or second a candidate seeking election in State Legislative assembly. This harmony can only be achieved if Section 123(8) is interpreted
as giving the govt. servant the right to vote as well as to nominate or second a candidate and forbidding him to assist the candidate in any other manner.
The important aspects of this principle are -
- The courts must avoid a head on clash of seemingly contradicting provisions and they must construe the contradictory provisions so as to harmonize them.
- 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.
- 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.
- Courts must also keep in mind that interpretation that reduces one provision to a useless number or a dead lumbar, is not harmonious construction.
- To harmonize is not to destroy any statutory provision or to render it loose.
- Rule of Beneficial Construction
When the literal meaning of the statute defeats the objective of the legislature, the court may depart from the dictionary and instead give it a meaning which will advance the remedy and suppress the mischief. This supports the initial and modern approach that is to effectuate the object and purpose of the act. The main objective by extending the meaning of the statute is to ensure that its initial purpose (public safety, maintenance of law and order) is justified. This rule looks into the reasons as per why the statute was initially enacted and promotes the remedial effects by suppressing the mischief. Though the rule almost covers the main grounds of the statute but cannot be applied to Fiscal statutes.
When a word is ambiguous i.e. if it has multiple meanings, which meaning should be understood by that word? This is the predicament that is resolved by the principle of Beneficial Construction. When a statute is meant for the benefit of a particular class, and if a word in the statute is capable of two meanings, one which would preserve the benefits and one which would not, then the meaning that preserves the benefit must be adopted. Omissions will not be supplied by the court, only when multiple meanings are possible, can the court pick the beneficial one. Thus, where the court has to choose between a wider mean that carries out the objective of the legislature better and a narrow meaning, then it usually chooses the former. Similarly, when the language used by the legislature fails to achieve the objective of a statute, an extended meaning could be given to it to achieve that objective, if the language is fairly susceptible to the extended meaning. This is evident in the case of B Shah vs. Presiding Officer, AIR 1978,
