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Question 1: Explain the literal rule of interpretation with
the help of decided cases.
Ans: Introduction: The term “interpretation” comes from the Latin word “interpretari,” which means “to explain” or “to comprehend.” Every law must be interpreted by the judge in the way that it was intended. The aim of interpretation is to determine what the statute stands for, what the flaw it seeks to correct, and what solution it seeks to promote. The fundamental rule in drafting laws is that the words must be read and interpreted in their literal context. The judges’ first rule is the Literal Rule. Some jurists refer to the literal rule as the grammatical rule. The plain meaning rule, also known as the literal rule, is one of three rules of statutory construction traditionally applied by English courts. The literal rule requires a judge to interpret what the law states “actually,” that is, in its plainest form. The meaning of the law-givers is said to be better expressed by the words themselves. The mechanism by which the courts attempt to determine the Legislature’s purpose through the medium of the authoritative form in which it is articulated is known as interpretation or construction. The law must be considered in its entirety under the literal rule of interpretation, and judges cannot go beyond “litera legis.” The literal meaning is a method of determining the statute’s “ratio legis.” Literal Rule Interpretation: The cardinal rule in interpreting statutes is to interpret them literally and grammatically, giving words their usual and natural meaning. The Plain Meaning Rule is another name for this rule. Examining the vocabulary and literal sense of the law is the first and most important step in the interpretation process. The words in the legislation have their very own natural influence, and the structure of an act is determined by how they are written. In the construction of laws and their interpretation, there should be no additions or substitutions of terms. The most important rule is to view words in their natural context. The definitions of the words should be clear in this rule, and only one interpretation can be deduced. Definition: Lord Atkinson: In the construction of statutes their words must be interpreted in their ordinary grammatical sense unless there is 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. Legislators also provide “definitions” sections within statutes to prevent ambiguity. These sections specifically describe the most relevant words used in the legislation. However, some laws do not have a definitions section at all, or (quite generally) fail to describe a phrase. The plain meaning rule is intended to direct courts when they are faced with a dispute over the meaning of a phrase not specified by the law or a word contained within a definition. The first and most basic rule of construction is that terms and phrases in technical legislation are assumed to be used in their technical context if they have one, and in their ordinary meaning otherwise, and the second is that phrases and sentences are to be construed according to grammar laws. A statute’s terms must be granted their ordinary sense prima facie. If the statute’s terms are precise and unambiguous in themselves, nothing more can be done than to explain them in their normal and ordinary context. It is a basic concept of statute creation that the definitions must be read literally. The courts are required to interpret the terms as the legislature intended them to be understood.
Conditions:
- A term’s special meaning can be given by statute, which is generally found in the interpretation section.
- If the law does not specify otherwise, technical terms are provided their ordinary technical definition.
- By implication, no words would be added.
- In the course of time, the sense of words changes.
- It’s important to note that the meaning of words is determined by their context. It was once observed by Lord Diplock “where the meaning of the statutory words is plain and unambiguous it is not then for the judges to invent the fancied ambiguities as an excuse for failing to give effect to its plain meaning because they consider the consequences for doing so would be inexpedient or even unjust or immoral.” Rules:
- Noscitur A Sociis: The meaning of the rule “noscitur a sociis” is defined by: Privy Council: “it is a legitimate rule of construction to construe words in an act of Parliament with reference to the words found in immediate connection with them.” Justice Gajendragadhkar: “This rule according to Maxwell means that when two or more words which are susceptible of analogous meaning are coupled together, they are understood to be used in their cognate sense. They take as it were their colour form each other i.e. the more general is restricted to a sense analogous to a less general.” ‘It’s important to remember that noscitur a sociis is merely a construction law, and it won’t apply in cases where it’s obvious that the broader terms were intentionally used to expand the meaning of the given term. The current rule of construction can be usefully extended only when the legislature’s purpose in associating broader terms with words of narrower meaning is questionable or otherwise unclear.
- Casus Omissus: This rule states that an error in law cannot be remedied by judicial construction and, in general, cannot be remedied by interpretation. The court’s only power is to correct factual errors in the statute’s terms and phrases, as well as the legislature’s meaning. The court tends to read the statute based on the language used rather than inserting a new phrase. It is an extension of the same principle that the court cannot provide for a matter that should have been provided for in a statute because doing so would be law rather than construction. However, no assumption exists that this rule exists, and the wording allowing the court to do so should be avoided.
- Ejusdem Generis: When general terms follow specific words that belong to the same class or group, the general words must be interpreted in light of the specific words. It denotes a similar nature or form. The terms of law must be interpreted in context, particularly when they are used in a summarizing or exhaustive manner, according to this concept. If there is some uncertainty, the term must be understood in light of the terms that came before it.
- Expressio Unius Est Excusio Alterius: Whenever a person or thing is specifically included, another one is explicitly excluded. There is no room for enforcing the rule in which the legislative terminology is explicit and the meaning is clear. If a term or expression has two possible meanings, mentioning one of them in a similar manner automatically eliminates the other. However it is not appropriate to treat this rule as an obligatory rule of law, it may be used to indicate the Legislature’s goal or purpose.
Question 2: Explain the Golden Rule w decided cases.
Ans: Introduction: Interpretation is the method by which the true sense or the meaning of the word is understood. The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. The purpose of the interpretation of the statute is to unlock the locks put by the legislature. For such unlocking, keys are to be found out. These keys may be termed as aids for interpretation and principles of interpretation. Definition: Gary: 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 words of a statute book, a meaning which he either believes to be that of the legislature, or which he proposes to attribute to it, is called ‘interpretation’. The conventional way of interpreting a statute is to seek the intention of its makers, facts of the case at hand. An interpretation of the statutory provision which defeats the intent and purpose for which the statute was enacted should be avoided. Badsha Mia v. Rajjab Ali: The primary object in interpreting a statute is always to discover the intention of the legislature and in England, the rules of interpretation, developed there, can be relied on to aid the discovery because those whose task is to put the intention of the legislature into language, fashion their language with those very rules in view. Since framers of statutes couch the enactments in accordance with the same rules as the judicial interpreter applies, application of those rules in the analysis of a statute naturally brings up the intended meaning to the surface. It is at least doubtful whether, in a case of framers of Indian statutes of the present times, especially of the provincial legislature, the same assumption can always be made. Interpretation is of two kinds – grammatical and logical. Grammatical interpretation 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. 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. ‘Proper construction’ is not satisfied by taking the words as if they were self-contained phrases. So considered, the words do not yield the meaning of a statute. According to Gray, grammatical interpretation is the application to a statute of the laws of speech; logical interpretation calls for the 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. It is the duty of the judicature to ascertain the true legal meaning of the words used by the legislature. Becke v. Smith: If the precise words used are plain and unambiguous, in our judgment, we are bound to construe them in their ordinary sense, even though it does lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure, but we assume the function of legislators when we depart from, the ordinary meaning of the precise words used merely because we see, or fancy we see, an absurdity or manifest injustice from adherence to their literal meaning. Rules of Interpretation: Golden Rule: The golden rule of interpretation is a modification of the literal rule of interpretation. Where the
literal rule lays emphasis on the literal meaning of the words used in legal language, the golden rule interprets the words in such a way that the absurdities and anomalies of literal interpretation are avoided. The golden rule modifies the language as well as the grammar of the words used in statutes and other documents of interpretation, thus providing the actual meaning of the words. It brings forth the context in which the words have been used in a particular stance. It must be kept in mind that the golden rule of interpretation can only be used when there is no correct grammatical construction possible. The legal language is sometimes composed of such words that do not provide a noticeable meaning, and to determine the latent meaning the golden rule is used. The judges of the courts must be aware of the consequences of interpreting the statutes using the golden rule, and it must only be used where it is absolutely necessary. New India Sugar Mills Ltd. v. Commissioner of Income Tax, Bihar: The Supreme Court held that the enactments within a statute must ordinarily be understood in a way that furthers the object of the statute as well as that of the legislature, and if two constructions of the same enactment exist, the court will adopt the one that advances remedy and suppresses any mischief. If the literal rule of interpretation were to be considered every time, it would result in irregularity and uncertainty because a word can have different meanings when put in different contexts. Also, what other words are used with that word also define or reduce its meaning variably. This would result in ambiguity, or multiple meanings of a single word. It can also result in absurdity, which means that the accurate meaning of the word as mentioned in the statute is completely opposite of what is being deduced from literal constructions. In such cases, the statute becomes questionable. Thus, these situations call for the application of the golden rule of interpretation. Interpretation Procedure: There are various methods suggested by experts in determining the meaning of statutes. According to Austin, the interpretive process consists of three steps: a. discovering the rule, b. ascertaining the intention of the legislature, and c. extending the statute to cover all those cases that fall within its scope. De Sloovere also stated three steps of interpretation, with the first being choosing the proper statutory expression, followed by interpretation of that expression in a technical way, and applying the so found interpretation, or meaning, to the case(s) given. It is well settled that if the words of a statute themselves deliver a clear and unambiguous meaning, there is no need to employ the golden rule of interpretation to modify the already existing correct meaning. It is also evident that where the words so used in a statute are not those which could give a precise meaning to the expression in question, it is important to apply the golden rule of interpretation, in such a way that the true intention of the words is not reversed or modified in any way. Application of Golden Rule: Nokes v. Doncaster Amalgamated Collieries Ltd: Observed that where two constructions are possible, the court will avoid the one that would prevent the object of the statute from being achieved, thus defeating the intent of the legislature. One should always adopt that meaning which gives a reasonably clear meaning to the expression. Nyadar Singh v. Union of India: Rule 11(IV) of the Central Services (Classification, Appeal and Control) Rules, 1965, imposed
Question 3: Explain the Mischief Rule of statutory
construction with decided cases
Ans: Introduction: Quite often interpretation and construction are assumed to have the same meaning, but there lies a thin line of distinction between the two. As established before, in the legal context, one may consider interpretation to be the process of determining the true sense underlying the statute. It is often confused with ‘construction’. Construction means drawing conclusions in relation to the case, that lie beyond the expression of the legal text. Interpretation helps resolving the ambiguity pertaining to the intention revolving around the enactment of the statute. Construction helps one in ascertaining the legal effect of a text. Meaning: Often referred to as Haydon’s Rule, the Mischief Rule of Interpretation is one of the most important rules of interpretation. In legal parlance, the word mischief is normally understood to be a kind of specific injury or damage resulting from another person’s action or inaction. But in relation to rules of interpretation, mischief means to prevent the misuse of provisions of a statute. It is widely known as the mischief rule primarily because it focuses on curing the mischief. As per the Mischief Rule of Interpretation, a statute must be construed in such a way as to suppress the Mischief. Mischief should not have a place in the statute. If an attempt is made to add Mischief in any statute, then it must be prevented by the Mischief Rule of interpretation. Smit v Huge: Revolved around the Street Offences Act, 1959. The statute was enacted to prohibit prostitutes from solicitating on roads to the passing public. Post the enactment of the said Act, the prostitutes began soliciting from their windows and balconies. Since, this defeated the intention of the legislation, some prostitutes were charged under Section 1(1) of the said Act which read as: “It shall be an offence for a person aged 18 or over (whether male or female) persistently to loiter or solicit in a street or public place for the purpose of prostitution.” In response to these charges, the prostitutes pleaded that they were not soliciting from “the streets”. Due to the misrepresentation of the meaning and intention of the said Act by the prostitutes, the court rejected their argument and applied the mischief rule of interpretation by stating that the inducement by them from the windows and balconies of their houses is also prohibited under the Act. The court justified this by stating that the purpose of the Act was to prevent prostitution. Hence, due to the application of the mischief rule, the court held that ‘the windows and balconies of their homes would count for an extension of the word and would come within the ambit of the word ‘street’. Sewantilal v. Income Tax Commissioner: The Supreme Court held that “it is a sound rule of interpretation that a statute should be so construed as to prevent the mischief and to advance the remedy according to the true intention of the makers of the statute.” Haydon’s Case: Mischief rule of interpretation can be traced back to Haydon’s Case It is considered to be a landmark judgment for the Mischief Rule of Interpretation because the Mischief Rule seemed to have evolved from this case. In the aforementioned case, it was held that there are four criterion which have to be met for the true interpretation of all the statutes in general. They are as follows: –
- What was the common law before the making of the Act/statute?
- What was the mischief for which the present statute was enacted?
- What remedy did the Parliament sought or had resolved and appointed to cure the disease of the commonwealth?
- The true reason of the remedy. The core purpose behind the rule is to suppress the mischief and advance the remedy. Therefore, there lies a duty upon the Courts of Law to construct the statute in a way such that it suppresses the mischief and promotes the remedy in accordance with the intention of the legislature. The Commissioner of Income Tax – Madhya Pradesh and Bhopal v. Sodra Devi: Justice Bhagwati stated that “It is clear that unless there is any such 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 gathered from the words which are used.” Therefore, it is evident that the rule established in Heydon’s case can be applied only when the words in question are ambiguous and are reasonably capable of having two or more meanings. Case Laws:
- Regional Provident Fund Commissioner v. Sri Krishna Manufacturing Company, 1962 AIR 1536 In this case, the factory listed as respondent comprised of 4 units for manufacturing. The 4 units operated as paddy mill, flour mill, saw mill and copper sheet units. The number of employees there were more than 50. By the application of the provisions of the Employees Provident Fund Act 1952, the Regional Provident Fund Commissioner directed the factory to furnish the employees with benefits. On the contrary, the respondent refused to comply on the ground that, separately, each of the 4 units comprised of less than 50 employees. Arguing on the aforesaid grounds, he stated that the provisions of the Act did not apply to him. Nonetheless, the court was of the opinion that the mischief rule needed to be applied in this case. Therefore, considering all the 4 units to be one industry.
- Pyarali K. Tejani v. Mahadeo Ramchandra Dange & Ors (1974 AIR 228): In this case, the accused was being prosecuted under The Prevention of Food Adulteration Act as he was selling supari that was sweetened with artificial sweetener. Although the accused argued that supari could not be considered as ‘food’ under the said Act, the Apex Court by emphasizing on the application of the mischief rule of interpretation, rejected this argument and held supari to be an ‘article of food’ under the Act. Hence, validating his prosecution under the provisions of the said Act.
- Kanwar Singh v. Delhi Administration [1965 SCR (1) 7] The Licensing Officer of the Delhi Corporation along with members of a raiding party, under the power vested in him in Section 418(1) of Delhi Municipal Corporation Act, 1957, took a few cattle belonging to the appellant into their custody. According to Section 418(1), the corporation or any other officer authorized by him could impound the abandoned cattle. The appellant contended that those cattle belonged to him, therefore, it they couldn’t be considered abandoned as the word abandoned means ‘the loss of ownership’. The court, by applying the mischief rule of interpretation in order to elucidate the meaning of the word abandoned in the Act, stated “It is the duty of the court in construing a statute to give effect to the intention of the legislature. Therefore, giving a literal meaning to a word used by the draftsman, particularly in a penal statute, would defeat the object of the legislature, which is to suppress a mischief, the court can depart from the dictionary meaning or even the popular
Question 4: “Statue must be read as a whole in its
context.” Elucidate.
Ans: Meaning: While interpretation of a legal provision is always dependent of the fact of any given case, the application of a statutory provision would always depend on the exact facts of a given case. As per 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 differs from Construction. The former is the art of finding out the true sense of any form of words, which also means the sense that the author intends to convey. It may also be understood as the process by which the courts determine the meaning of a statutory provision for the purpose of applying it to the situation before them. Construction on the other hand, is the drawing of conclusions, respects subjects that lie beyond the direct expression of the text from elements known from and given in the text. Intention of the legislature: A statute is an edict of the Legislature and the conventional way of interpreting or construing a statute is to seek the ‘intention’ of its maker. It is to be understood according to the intent of its maker, with the guidance furnished by the accepted principles of interpretation. South Asia Industries (Pvt.) Ltd. S. Sarup Singh, AIR 1966 SC 346 “The object of interpreting a statute is to ascertain the intention of the Legislature enacting it” Words in any language are not scientific symbols having any precise or definite meaning, and language is but an imperfect medium to convey one’s thought, to an audience consisting of persons of various shades of opinion. The function of courts too, is only to expound, and not to legislate. The problem of interpretation, is a problem of meaning of words and their effectiveness as a medium of expression to communicate a particular thought. Words and phrases are symbols that stimulate references to referents. But words of any language are capable of referring to different referents in different contexts or times. However, there always lies the difficulty of borderline cases within or outside the connotation of a word. Language, therefore, has high chances of misunderstanding. The law is a pragmatic instrument of social order and an interpretative effort must be imbued with the statutory purpose. A construction that would promote the purpose or object of an Act, even if not expressed, is to be preferred. Jane Straford Boyse v. John T. Rassborough “There is no possibility of mistaking midnight for noon; but at what precise moment twilight becomes darkness is hard to determine.” Thus, the courts, although conscious of such a dividing line,, do not attempt to draw it for reasons of practical impossibility; however, sometimes, attempts it after laying down a working line; howsoever pragmatic, it may or may not be. There is a marginal area in which the courts mould or creatively interpret legislation and thus finish or refine legislation which comes to them in a state requiring varying degrees of refinement. Since, interpretation always implies a degree of discretion and choice, creativity, a degree which is especially high in certain areas such as constitutional adjudication. Some judges proclaim that they perform creative functions even in interpretation, however, this may sometimes lead to conclusions which have a strong legislative flavor. Interpretation should
not be regarded as a search for the purpose of the Legislature or even for the purpose of the statute, but as one of ‘attribution of purpose’, in venturing to do justice. The first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. The question is not what may be supposed to have been intended but what has been said. The key to the opening of every law is the reason and spirit of the law. Each word, phrase or sentence, is to be construed in the light of the general purpose of the Act itself. Interpretation must depend on the text and the context, as they are the bases of interpretation. If the text is the texture, context gives the colour. Neither can be ignored. A particular clause or expression is construed by construing the whole instrument and any dominant purposes that it may express. The Legislative function cannot be usurped under the disguise of interpretation, and the danger of an priori determination of the meaning of a provision based on the preconceived notions of ideological structure or scheme should be avoided. Caution is all the more necessary. The correct interpretation is one that best harmonizes the words with the object of the statute. A right construction of the Act can only be attained if its whole scope and object together with an analysis of its wording and the circumstances in which it is enacted are taken into consideration. It s all about interpretation and not about interpolation. The rules of interpretation are not rules of law; they are guides and such of them which serve no useful purpose, can be rejected and new rules can be evolved in their place. They are aids to construction, presumptions or pointers. The shift towards use of plain language has attached with it, a lot of controversy. The language of our legislation cannot be reduced to baby talk for consumption of the masses, and the attainment of precision, and accuracy. A good draft contains a clear expression of intent, uses a consistent terminology throughout, avoids passive voice and aspirational statements The terms defined are either authoritatively defined in the draft or by judicial interpretation.Sentences are short. Simple words commonly used in ordinary speech are preferred. Convoluted sub-division is avoided and so is repetition. Difference between purposive and literal construction: The difference is in truth of one degree only. The real distinction lies in the balance to be struck in the particular case between literal meaning of the words on the one hand and the context and purpose of the measure in which they appear on the other. Statue must be read as a whole in its context: The statute as a whole, the previous state of the law, other statutes in pari materia, the general scope of the statute, and the mischief it is to remedy, is the basic context of any statute. The elementary rule states that the intention of the Legislature must be found by reading the statute as a whole. Every clause needs to be construed with reference to the context and other clauses of the Act, to make a consistent enactment of the whole statute or series of statutes relating to the subject- matter. It is the most natural and genuine exposition of a statute. The conclusion that the language is plain or ambiguous can only be truly arrived at by studying the statute as a whole. How far and to what extent each component influences the meaning of the other , would be different in each given case. Each word, must however, be allowed to play its role, however significant or insignificant it may be. in achieving the legislative intent. Each section must be construed as a whole, whether or not one of the parts is a saving clause or a proviso. They may be interdependent, each portion throwing light, if need be on the rest. A question of construction only arises when one side submits that a particular provision of an Act covers the facts of the case and the other submits that it does not or it may be agreed it applies, but the difference arises to its application.
Question 5: Explain the importance of the Doctrine of
Harmonious Construction.
Ans: Introduction: Law has a very important place as an agent for social evolution. In a democratic system of governance, there are numerous intersections among social evolution and legal order. The law has its source in legislation is called Statute law. It is quickly made, definite and does not have to wait for recognition by the courts. The courts recognize a statute because it is law, not law merely because the courts recognize it. The word ‘Law’ in the context of Article 300-A of the Constitution must mean an Act of Parliament or of a State Legislature, a rule, or a statutory order, having the force of law, that is positive or State-made law.i In the United Motors case, when the Supreme Court construed Article 286(1) of the Constitution, their interpretation was deemed to be the correct interpretation of that article from the day itself. The consequential effects flowing from the law so laid down should necessarily follow the subject of course to the law of limitation or special rules such as res judicata in civil cases or autre fois acquit or convict in criminal cases provided in the special statutes.ii Statutes are not always rational (change this word to direct/literal) and it may not be within the province of the court to import rationality in an enactment under the guise of interpretation. This is where interpretation becomes crucial. The enacted law must be seen as an attempt to reconcile, to harmonize, to adjust the overlapping and often conflicting claims and demands, so that the sacrifice of the conflicting provisions is seldom made. Now, one of the most important doctrines for the interpretation of statutes, which is also the topic for this article will be discussed in detail. Doctrine of Harmonious Construction: This rule is used to avoid any inconsistency and repugnancy within a section or between a section and other parts of a statute. 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 which is consistent with all the provisions and makes the enactment consistent shall prevail. The doctrine follows a settled rule that an interpretation that results in injustice, hardship, inconvenience, and anomaly should be avoided. The interpretation with the closest conformity to justice must be picked. The Supreme Court laid down 5 main principles of the ‘Doctrine of Harmonious Construction:
- The courts must avoid a ‘head of clash’ of contradictory provisions and they must construe the contradictory provisions so as to harmonize them.
- When it is not possible to completely reconcile the differences in contradictory provisions, the court must interpret them in such a way so as to give effect to both provisions as much as possible.
- Courts must keep in mind that the interpretation which reduces one provision to a useless standing is against the essence of ‘Harmonious Construction’.
- To harmonize the provisions is not to render them fruitless or destroy any statutory provision.
- The provision of one section cannot be used to render useless the other provision, unless the court, despite all its efforts, finds a way to reconcile the differences. The approach that is mostly used by the courts is to find out which provision is more general in nature so as to construe the more general provision and exclude the specific one. The maxims
Generalia Specialibus Non-Derogant, and Generalia Specialibus Derogant catches the essence of the doctrine. The former means that general things do not derogate from special things, and the latter means that special things derogate from general things. Further, this principle is also used to resolve conflicts between two separate acts and in the making of statutory orders and rules. But if a person has two remedies, one being general and the other being specific, they continue to hold good for the concerned person until he elects one of them. Landmark Decisions: M.S.M. Sharma v. Krishna Sinha: The doctrine was applied to resolve the conflict between Articles 19(1)(a) and Article 194(3) of the Constitution and it was held that the right to freedom of speech as guaranteed under Article 19(1) (a) is to be read as subjects of powers and privileges of the House of the Legislature which is similar to those of the House of Commons of the United Kingdom as declared under Article 194(3). But, after the above judgment, in Special Reference No. 1 of 1964 it was decided that Article 194(3) was subordinate to Articles 21, 32, 211, and 226. This conclusion was also reached through the recourse of Harmonious Construction. Venkataramana Devaru v. the State of Mysore: The Supreme Court applied the doctrine in resolving a conflict between Articles 25(2)(b) and 26(b) of the Constitution and it was held that the right of every religious denomination or any section thereof to manage its own affairs in matters of religion [Article 26(b)] is subject to provisions made by the State providing for social welfare and reform or opening of Hindu religious institutions of a public character to all classes and sections of Hindus [Article 25(2)(b)]. The principle of ‘Harmonious Construction’ is also applicable in the case of construction of provisions relating to subordinate legislation. Sirsilk Ltd. v. Govt. of Andhra Pradesh: A very important question was answered. Various disputes arose between the employer and the workmen and it was further referred to an industrial tribunal. After the adjudication was over, the government sent its award to the government for publication. However, before the publication of the award, the parties to the dispute came to a settlement, and wrote a letter to the government jointly, that the dispute has been settled and the award shall not be published. The government refused to withhold the publication and in turn, the parties further moved the High Court. The High Court rejected the writ petition. The parties further moved the Supreme Court through a special leave petition.The main premise of the appellants was that Section 17 of the Industrial Disputes Act, 1947 was directory in nature and not mandatory.Ordinarily, the words ‘shall’ and ‘must’ are mandatory, and the word ‘may’ is a directory, although using them interchangeably in legislation is common. Section 17(1) of the Act states, ‘‘Every award shall within a period of thirty days from the date of its receipt by the appropriate government be published in such manner as the appropriate government thinks fit.” The court read the Section 17 and 17A and declared that the duty cast on the government to publish the award is mandatory and not a directory. Thus, the contention of the appellants did not hold good. But on further observation by the court, Section 18 was scrutinized. Section 18 (1) provides that a settlement arrived at by agreement between the employer and the workmen otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement.
Question 7: Explain rules of interpretation of mandatory
and directory provisions.
Ans: Introduction: No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. Courts of justice must try to get the real intention of the Legislature by carefully understanding the intent of the statute. The Supreme Court of Indian has pointed out on many occasions that the question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained not only from the phraseology of the provision but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other. According to Crawford 3: “A statute, or one or more of its provisions, may be either mandatory or directory. While usually in order to ascertain whether a statute is mandatory or directory, one must apply the rules relating to the construction of statutes; yet it may be stated, as a general rule, that those whose provisions relate to the essence of the thing to be performed or to matters of substance, are mandatory, and those which do not relate to the essence and whose compliance is merely a matter of convenience rather than of substance, are directory”. DA Koregaonkar v State of Bombay: I t was held that one of the important tests that must always be employed in order to determine whether a provision is mandatory or directory in character is to consider whether the non- compliance of a particular provision causes inconvenience or injustice and, if it does, then the Court would say that, the provision must be complied with and that it is obligatory in its character. Differences Between Mandatory and Directory Provisions: Sutherland: “The difference between mandatory and directory statutes is one of effect only. The question generally arises in a case involving a determination of rights as affected by the violation of, or omission to adhere to, statutory directions. This determination involves a decision of whether or not the violation or omission is such as to render invalid Acts or proceedings pursuant to the statute, or rights, powers, privileges or immunities claimed there under. If the violation or omission is invalidating, the statute is mandatory; if not, it is directory”. Rules for Determination of Mandatory and Directory Provisions:
- Intention of Legislature: In determination of the question, whether a provision of law is directory or mandatory, the prime object must be to ascertain the legislative intent from a consideration of the entire statute, its nature, its object and the consequences that would result from construing it in one way or the other, or in connection that with other related statutes, and the determination does not depend on the form of the statute. Hari Vishnu Kamath v Ahmad Ishaque The Supreme Court observed that the various rules for determining when a statute might be construed as mandatory and when directory are only aids for ascertaining the true intention of the Legislature which is the determining factor, and that must ultimately depend upon the context. An enactment, mandatory in form, might in substance be directory. The use of word 'shall' does not conclude the matter.
- Purpose Behind Statue: Chandrika Prasad Yadav v State of Bihar: It was held that, the question as to whether a statute is directory or mandatory would not depend upon the phraseology used therein. The principle as regards the nature of the statute must be determined having regard to the purpose and object the statute seeks to achieve. Sutherland: "It can be stated as a general proposition that, as regards the question of mandatory and directory operation, the courts will apply that construction which best carries into effect the purpose of the statute under consideration. To this end, the Court may inquire into the purpose behind the enactment of the legislation, requiring construction as one of the first steps in treating the problem. The ordinary meaning of language may be overruled to effectuate the purpose of the statute". Lila Gupta v Laxmi Nariain: The Court was interpreting the proviso to section 15 of the Hindu Marriage Act 1955 (which was repealed in 1976). The expression read as follows- "Provided that it shall not be lawful for the respective parties to marry again unless at the date of such marriage at least one year has elapsed from the date of the decree in the court of the first instance". The Court observed that when a statute prohibits a certain thing being done, thereby making it unlawful without providing for the consequence of the breach, it was not legitimate to say that such a thing when done was void because that would be tantamount to saying that every unlawful act is void. On the basis of this reasoning, the Court held that a marriage in violation of the proviso would not be a nullity, irrespective of the use of the word 'shall' in the provision.
- Use of Prohibitory Words: State of Himachal Pradesh v MP Gupta: The Court was interpreting section 197 of the Code of Criminal Procedure 1973, which provided 'that no court shall take cognizance of any offence alleged to have been committed by a public servant, judge, magistrate, or member of the armed forces'. It was held that the use of the words 'no' and 'shall' make it abundantly clear that the bar on the exercise of power of the Court to take cognizance of any offence is absolute and complete. Mandatory and Permissive Words: Sidhu Ram v Secretary Railway Board: “Where the penalty of dismissal, removal from service, compulsory retirement, reduction in rank or withholding of increment has been imposed, the appellate authority may give the railway servant either at his discretion or if so, requested by the latter a personal hearing, before disposing of the appeal.” The Court has to consider whether the obligation to give a personal hearing was mandatory or directory. On plain reading of the Rule, the Court held that if the expression 'may' were to be read as 'must', it would impose a duty on the appellate authority to give a right of personal hearing in each case. In the opinion of the Court, if that was the intendment of the Legislature, it would have expressed it in much simpler and explicit terms. Hence, the Court held that the provision was directory and not mandatory. In arriving at this decision, the Court observed— "Ordinarily the words 'shall' and 'must' are mandatory and the word 'may' is directory although they are often used interchangeably. It is this use, without regard to the literal meaning, that generally makes it necessary for the Court to resort to construction in order to ascertain the real intention of the draftsman. Nevertheless, it is generally presumed that the words are intended to be used in their natural meaning. Law reports do show that when a statute deals with the right of the public, or where a third person has a claim in law to the exercise of the power, or something is directed to be done for the sake of justice of public good, or when it became necessary to sustain the constitutionality
practice or procedure will generally be read as a directory when disregard of it or the failure to follow it exactly will not materially prejudice a litigant's case or deprive him of a substantial right. Kasi Bishwanath Dev v Paramananda Routrai: The matter before the Court was whether, under 35B of Civil Procedure Code, the payment of costs would be a mandatory condition precedent to the proceedings of the suit. The relevant portion of the provision read as follows— "The Court may for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date and such order shall be condition precedent to the further prosecution of" The Court held that the cause of justice was paramount, and a procedural law could not be raised to the pedestal of a mandatory provision as would take away the Court's right in a given vase to exercise its discretion in the interest of justice. Hence, the language in which section 35B of the Civil Procedure Code had been expressed must be considered to be directory. Conclusion:
- When the Legislature used 'must' instead of 'shall' it uses a word which is most strongly imperative.
- In some cases the word 'must' or the word 'shall' may be substituted for the word 'may' but only for the purpose of giving effect to the clear intention of the Legislature.
- Normally, however, the word 'may' must be taken in it naturally, that is, permissive sense and not in its obligatory sense.
- In matters of procedure, mandatory words may be construed as directory.
- 'May and 'shall' are generally used in contradistinction to each other and normally should be given their natural meaning especially when they occur in the same section. But in phrases like, it "shall be lawful for the court', 'shall be liable to pay costs' and "shall be liable to be forfeited', the meaning is not mandatory. The first expression means the Court has discretion; the second expression gives a discretion to the Court to award costs or interest, and the third not that there should be an absolute forfeiture but a liability to forfeiture which might or might not be enforced.
- Similarly, it may happen that in an Act the word 'may' is used in such a way as to create a duty that must be performed.
Question 9: Discuss the consequences of a repeal of a
statue.
Ans: Introduction: In general, the term repeal stands for to cancel or to revoke. But in the context of law, it means to “abolish statutes”. Repeal of statutes means the abolition of the law, and once if any statute is abolished then it is considered void and possesses no effects. In addition, there is no basic difference between amendment and repeal. Both the term amendment and repeal is used for stating a similar expression that is the substitution or omission or addition. As per Halsbury’s Laws of England, the term repeal stands for revoking and abolishing an act and all its effects which cause it to cease to be a part of statutes of books or body of law. According to the Black’s law dictionary, the term repeal means a legislative act which abrogates or obliterates an existing statute. There exist two types of statutes temporary and perpetual. Temporary statutes tend to have effects for a specific period of time. They have no effects after the expiry of the specific period, however, the permanent or the perpetual statute is the one in which the statute remains effective until it is substituted or repealed by the legislative act. The power to repeal a statute is conferred to the legislature is similar to the powers it has for the enactment of a statute. For example, the Companies Act, 2013 repealed the Companies Act 1956, the Criminal Procedure Code, 1973 repealed the previous Criminal Procedure Code, etc. Such power of repealing a statute is similar and coextensive to the power of making or enacting a law. Both the union and the state legislature are empowered with such power however they are restricted to delegate the power of repealing. Objectives of Repealing Act: The primary object of this act is to bring necessary changes in the existing law for changing socio-economic and cultural conditions from time to time. The purpose of this Act is to remove the outdated or obsolete matter from the body of law. After the removal of obsolete matter, it is the court that decides whether the new provision meets its goal and has different intentions or not. This act is the editorial revision by abolishing obsolete and unnecessary matter of the statute and adding new and proper information in the books of the statute. Kinds of Repeal:
- Express Repeal: Express repeal is an expression which means the abolition of the previously enacted statute by the newly enacted provisions of a statute through expressed words embedded under the new statute enacted. The statute which has been repealed is called repealed statute and the one which replaces the earlier statute is called the repealing statute. In general, when an earlier statute or some of its provisions are repealed through express words embedded under the newly enacted statute stating that the provisions are now of no effect is called the express repeal. Essential Features of Express Repeal:
- The first and foremost feature is that there must be a repealing statute.
- The earlier statute must be repealed by the new enacting or repealing statute.
- The enacted statute must have clear intention showing the effect of the repeal. So it is understood that any earlier statute or provision of the statute can be removed or repealed by the enacted statute showing incompatibility with the previous one.
