unit – iii m k u - kamkus college of lawkamkus.org/coursematerial/unit - iii- interpretation...

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Strictly for Internal Circulation - KCL

UNIT – III

MAXIMS OF STATUTORY INTERPRETATION

1. Contemporanea expositio est optima et fortissima in lege (Cntemporaneous exposition is

the best and strongest in law): According to Maxwell, "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".

Words of a Statute will generally be understood in the sense which they bore when it was passed.

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.

2. "Construction 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.

A statutory authority to abate nuisances would not justify an order to abate one when it could not be

obeyed without committing a -trespass.

3. Casus Omissus: The term means cases of omission. This maxim provides that omissions in a

statute cannot, as a general rule, be supplied by construction. The omissions of Legislature cannot

be rectified by the courts. A matter which should have been provided in a statute, cannot be supplied

by courts. No canon of construction permits the courts to supply a lacuna in a statute left by the

Legislature by inadvertence, because such an attempt amounts to making of law, which is beyond

the powers of judiciary. It should be kept in mind that the authority to enact, modify, amend or repeal

any law rests with legislature alone.

This rule has been effectively explained in following cases:

S.P. Gupta V. President of India (AIR 1982 SC 149)

State of Jharkhand V. Govind Singh, (2005) 10 SCC 437

4. "Expressio Unius Personae Vel Rei, Est Exclusio Alterius": The maxim cannotes that the

express mention of one person or thing is the exclusion of another. This rule may be employed to

denote intention of the legislature, although it would not be safe to regard it as an obligatory rule of

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law. In the words of Lopes, L.J., the maxim is "a valuable servant but a dangerous master".

Expressurn Facit Cessary Taciturn": Analogous to the just preceding maxim it cannotes that

when there is express mention of certain things, then any thing not mentioned is excluded. In other

words, the maxim lays down that express words put an end to implication.

The maxim expressio unius est exclusio alterius is a maxim for ascertaining the intention of the

legislature. Where the statutory language is plain and the meaning clear there is no scope for

applying the rule. (Parbhani Transport Co-operative Society V. The Regional Transport Authority

AIR 1960 SC 801).

5. Ut Res Magis Valeat Quam Pereat: This maxim lays down that it is better for a thing to have effect

than to be made void.

According to Maxwell "the general rule is that the full effect must be given to every word, yet if no

sensible meaning can be given to a word or phrase, or if it would defeat the real object of the

enactment, it may, or rather it should, be eliminated.

The words of a statute must be construed so as to give a sensible meaning to them if possible. The

second consequence of this maxim is that a statute may not be extended to meet a case for which

provision has clearly and undoubtedly not been made.

6. Stare decisis: The doctrine of stare decisis (to stand by past decisions) only means that where a

rule has become settled law, it is to be followed although some possible inconvenience may grow

from a strict observance of it. Thus, where a certain translation of texts of Hindu Law has been

accepted as correct and on which questions of title of property have been decided, the principle of

stare decisis would apply to prevent a reopening of the whole question involved on the ground that

such translation is wrong.

The full form of the maxim, stare decisis at non quieta movere, which means "to stand by decisions

and not to disturb what is settled".

PRESUMPTIONS IN STATUTORY INTERPRETATION

An Act made by the legislature represents the will of the people and that cannot be lightly interfered with. In

India the approach of the courts while examining an enactment is to start with the presumption of

constitutionality. The courts try to sustain the validity of a statute to the extent possible and they strike that

down only when it is not possible to sustain the same.

The court. should not approach the enactment with a view to pick holes or to search for defects of drafting,

much less in exactitude of the language employed. Indeed any such defects of drafting should be ironed out

as pan: of the attempt to sustain the constitutional validity of the enactment. The unconstitutionality must be

plainly and clearly established before an enactment is declared as void. The same approach holds good

while ascertaining the intent and purpose of an enactment or its scope and application. The court must

recognize the fundamental nature and importance of legislative process and accord due regard and

deference to it, just as the legislature and executive are expected to show due regard and deference to

judiciary.

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It is a cardinal principle of construction that the statute and the rule or the regulation must be held to be

constitutionally valid unless and until it is established that they violate any specific provision of the

constitution. Further, it is the duty of the court to harmoniously construe different provisions of any Act or

Rule or regulation, if possible, and to sustain the same rather than strike down the provisions outright.

We can discuss the topic of presumptions of statutes under the following heads :

1. Statutes are presumed to be valid:

a) Constitutional Meaning to be preferred: There is a presumption in favour of the validity of a statute.

Courts of law have to presume that the particular law is intravires and not ultravires. It is well-settled

that if certain provisions of law construed in one way would make them consistent with the

constitution, and another in perpetration would render them unconstitutional, the court would lean in

favour of the former construction. The construction which leads to unconstitutionality; or a'

construction that results in invalidity rather than validity must be avoided. Where two reasonable

constructions are possible, one which does not infringe fundamental rights, or the one which would

make the law intra vires, or is consistent with constitutionality, or the one which validates the statute

and shortens litigation, or which sustains the validity of the provision of law should be preferred.

If certain provisions of law construed in one way will be consistent with the Constitution and if

another interpretation would render them unconstitutional, the court would lean in favour of the

former construction, and would construe if necessary to keep it within powers of legislature; in a

more limited sense, the generality of the language of the Act, which, if read literally, will apply to

matters beyond relevant legislative powers.

b) Presumption holds good for all Legislatures: There is always a presumption that a legislature,

be it central or provincial, never intended to exceed its legislative ambit so as to conflict with the

jurisdiction of another legislature. It is a sound principle of construction that Acts of a Sovereign

legislature, and indeed of subordinate legislatures, such as a municipal authority, should, receive

such an interpretation as will make them operative and not inoperative. It would be presumed that

the legislature did not intend to enact anything beyond its competent territorial limits.

c) Presumption for all Manner of Laws: The presumption is not confined to the legislations of the

Union. A state Act should also be construed so as to make it consistent with the constitution. The

rule is equally applicable to by-laws:

d) Statute in Infringement of Fundamental Rights: Where the validity of a statute is impugned on

the ground that its provisions contravene fundamental rights guaranteed by the constitution and two

constructions are possible as to the meaning and intention of the legislature, the court should adopt

that construction which upholds the validity.

In the case of Khyerabari Tea Co. v. State of Assam1 it was held by Justice Gajendragadhkar that

once a citizen shows that the impugned statute invades either his individual fundamental right, or

the right of freedom of trade, the presumption has worked itself out and the onus shifts to the state to

show that the invasion amounts to a restriction or it is in the interest of the general public.

e) Rules when language Ambiguous: Courts must find out the literal meaning of the expression in

the task of construction. In doing so, if the expressions are ambiguous, then the construction that

fulfills the object of the legislation must provide the key to the meaning. However, there is a

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presumption that the legislative does not leave any lacuna. When it is equally possible to take the

view which would be conducive to the conclusion that there is no lacuna in the legislation, it would

be unreasonable to take the view that the legislature has left a lacuna, either by negligence or by

lack of foresight or because it did no know its job. If the language of an enactment is ambiguous, and

on one construction, it would be within the powers of the legislature, the courts will construe

ambiguous expression in such a manner as to maintain the validity of the statute if the language will

reasonably bear such interpretation.

f) Intention of Legislature does not confer validity: The validity of an Act depends on the

legislative competency irrespective of the intention which leads to its enactments. The intention

with which a provision of law is made is, however, not relevant for the purpose of deciding if it is void,

as infringing any provision in Constitution. If it does infringe, then whatever the intention may be, it is

void.

g) Severability: In determining whether the valid parts of a statute are separable from the invalid

parts, it is the intention of the legislature that is the determining factor. One test is whether the

legislature would have enacted the valid part if it had known that the rest of the statute was invalid.

The second test is that if the valid and invalid parts of a statute are independent and do not form part

of a scheme but what is left after omitting the invalid portion is so thin as to be in substance different

from what it was when it emerged out of the legislature, then also it will be rejected in its entirety.

h) Presumption of Constitutionality Burden on One who Attacks it: The presumption is in favour

of the constitutionality of an enactment and the burden is upon him who attacks to show that there

has been a transgression of constitutional principle. Charnjit al v. UOI (1951 SC 41). The court, it is

accepted, must presume that the legislature understands and correctly appreciates the needs of its

own people, that its laws are directed to problems made manifest by experience and that its

discriminations are based on adequate grounds.

In many cases the Hon'ble Supreme Court allowed affidavits to show the reasons for the enactment

of law, the circumstances, in which it was concerned and the evils it was to cure. The construction

has to be preferred which would make the provisions in an Act introvert the legislature which passed

it.

2. Statutes are territorial in operation: The ordinary principle of construction is that legislature is

dealing with the subject matter situated within its own territorial jurisdiction. Now, prima facie, the

legislation of a country is territorial. Its acts are intended to apply to matters occurring within its realm

and not beyond it, and this principle applies to Acts that are penal in their character.

Law of a nation applies to all its subjects and to all things and Acts within its territories, including in this

expression not only its ports and waters, but its ships, of its subjects on the. high seas in foreign tidal

waters. They apply also to all foreigners within its territories (not privileged like sovereigns, and

ambassadors) or regards criminal, police and all other matters except some questions of personal

statutes or capacity. The presumption is, that the legislature does not design its statutes to operate on

them beyond the territorial limits of the state.

a) Extra-territorial Jurisdiction of Sovereign Legislatures: Sovereign legislatures have powers of

enacting extraterritorial laws, at least so far as recognition by their own courts is concerned. Ordinarily,

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extra-territorial operation would be making legislation for their benefit only.

India, prior to the coming into force of the constitution, the position was that sub - S.21 0 S. 9,

government of India Act 1935, empowered the federal legislature to make laws for the whole or a y part

of British India and the topics on which it could legislate were specified in lists I and III of.... ch. VII. Sub S

(2) of the Sec. laid down that without prejudice to the generality of the powers inferred by the preceding

sub-sec, no federal law shall, on the ground that it would have extra-territorial operation, be deemed to

be invalid.

The Indian Parliament being a sovereign legislature, CI(2) of Art. 245 of the Constitution lays own that

no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-

territorial operation.

while the Union Parliament has power to make laws for the whole or any part of the territory of dia, the

state legislature can make laws only for the state or any part thereof. The legislative power of the state is

confined under Art. 245(1) to the territory of the state. The state legislatures have no extra territorial

legislative powers.

2I the case of Bengal Immunity v. State of Bihar, Venkatarama Ayyar J.held that where there as sufficient

territorial connection between the person who is sought to be charged or proceeded against under the

law, and the country which enacts the law, the law is not, strictly speaking, extra-territorial and it is not

ultra-vires on the ground that the person is not residing within the s ate which enacts the law.

I Abdul Kadar v. Union of India it was held that a law passed by the legislature having plenary powers is

not involved on the ground that it has extra territorial operation. In that case, warrants for detention were

issued under COFAPOSA Act after the alleged smugglers had fled the country. When proclamation

under S. 7(1) (a) of the Act read with S. 82(1) Criminal Procedure Code 1973 was issued, the same

were challenged as illegal and ultra-vires.

It was observed: The words 'extra-territorial' are normally used in two different senses, as connoting

firstly, laws in respect of acts, and events which take place inside-the state but have operation outside

and secondly, laws with reference to nationals of a state in respect of their acts outside. In its former

sense, the laws are strictly speaking intra territorial, though loosely termed as extra-territorial under Act.

241 (1). Therefore,. merely because the law passed by the Parliament has extra-territorial

consequences, it cannot be invalidated as set out in - Art. 245(2) of the Constitution.

3. Statues are Presumed to be in Conformity with International Law: Under the general

presumption that the legislature does not intend to exceed its jurisdiction, every statute is to be so

interpreted and applied, as far as its language admits, as not to be inconsistent with the established

rules of international law. There is indeed a presumption against any intention to frame a statute so as to

contravene a rule of international law.

According to recognized rules of construction of statutes, the legislature is presumed not to enact any

thing contrary to international law or the common law. Unless, therefore, the intention to do so is clearly

expressed in the enactment, the courts would be inclined to favour an interpretation which would bring

the enactment into consonance with those principles rather than accept a grammatical interpretation.

As between two possible constructions, that which is conformable to international law is to be preferred

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to that which would involve infringement of the right of other communities. The judges may not

pronounce an Act ultra vires as contravening international law, but in case of ambiguity, from a

construction which would involve a breach of the ascertained and accepted rules of international law a

sovereign power is always presumed to respect the subject and the rights of all other sovereign powers

outside its territory.

4In PUCL v. Union of India the Supreme Court was required to interpret S. 3(2)(d) 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 a person consistent with the language of the section and

the true intendment of the Act. To this end, the reference was made to the 'Paris Principles' on the

establishment of human rights institutions adopted by the United Nations in 1991. These principles

encouraged human rights institutions to have as little governmental interference as possible.

In the wake of this reliance, the judges made the following different observations on the applicability of

international norms, as given below:

Sabharwal J. was of the opinion that the 'Paris Principle' must not be derogated from and consequently

the appointment should not be allowed. He observed that international treaties have influenced

interpretation of Indian law in several ways. The Supreme Court has relied upon statutory

Interpretation. Where the terms of any legislation are not clear or are reasonably capable of more than

one meaning, in such cases, the courts have relied upon the meaning which is in consonance with the

treaties, for there is a prima-facie presumption that parliament did not intend to act in breach of

international law, including treaty obligations. In this view, S, 3 (2) (d) of the Act has to be read keeping in

view 'Paris Principles'.

Dharmadhikari J. on the other hand observed that the court needed to take aid of international law and

guidelines in interpreting the domestic law only if it found some gap to be filled in such law or if the

provisions of domestic law were not clear and did not wholly carry the meaning and effect of the

international law which it intends to implement. The 'Paris Principles, he opined, were at best guidelines

to be followed by countries which were parties to the resolutions taken at the international conferences

on human rights. Such acceptance did not create an obligation to incorporate the Principles word by

word in statutory law. In his opinion, the impugned provision of the Human Rights Act was clear and

unambiguous and therefore there was no need to place reliance on principles of international law.

5The Supreme Court in Umesh Chandra v. State of Rajasthan held that the relevant date for

determining the age of the accused who claims to be a child is the date of occurrence and not the date of

trial.

6But in Amrit Das v. State of Bihar Supreme Court laid down that the relevant date for the said

purpose would not be the date of occurrence but the date of production of accused before the court.

Since there was a conflict of opinion the matter was referred to the constitution bench. 7In the case of Pratap Singh v. State of Jharkhand 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 Hon'ble court took note of the fact that the Juvenile Justice Act 2000 specially refers to

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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 a part of our 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 to develop new

rights in the context of the constitution. Constitution is a source of, and not an exercise of legislative

power. Ordinarily, the principles of international law are implied into every statutory effort. The instant

case made for a stronger obligation as the legislature explicitly bound itself to the principles of

international law.

In rejecting the state's argument that the relevant date for the determination of age would be the date of

production, the court observed that Act was not just a beneficial legislation, but a remedial one. The Act

aims to grant care, protection and rehabilitation of juvenile vis-a-vis the adult criminals in accordance

with the United Nations Standard Minimum Rules for the Administration of Juvenile Justice.

On the recent decisions Supreme Court demonstrated that there was a difference of opinion on the

weight to be accorded on the matter of presumption of the statutes in conformity with the international

law.

8In the case of ADM Jabalpur Vs. S.K. Shukla it was observed by Justice Khanna in his dissenting

judgment that if a statutory provision of India is open to two valid constructions, the court should prefer

the one that may be in harmony with international law.

4. Legislature does not commit a mistake: It is not competent for the court to proceed on the

assumption that the legislature knows not what it says, or that it has made a mistake.

It may be presumed as a rule that exact and correct words are used in the statute.

There is a sort of assumption that the legislature is an ideal person which does not make mistakes, but

assumption sometimes has its own limitations. -It is too much to expect that legislation was drawn up in

haste to bring about changes in law in a large part of the territory of India in a short time. The legislative

authorities had devoted the same care and attention in drafting such enactments as would have been

necessary and desirable. It would not be proper to construct such emergency legislation with the same

amount of strictness as in construing the statutes which have come out after considerable thought and

attention on the part of the legislature.

Mistakes may creep into legislation due to various circumstances and causes. They may be caused by

the printer making an incorrect reproduction of the drafts of manuscript, or they may be due to the

draftman's unskilfullness. They may also creep into a Bill during its passage through the legislature.

a) Presumption Against Mistake: We cannot assume a mistake in an Act of parliament. If we think

so, we should under many Acts as certain by putting different constructions on them according to an

individual connections. The draftsman of the Act may have made a mistake. If so, the remedy is for

the legislature to amend it.

The legislature is presumed not to have made a mistake even if there is some defect in the language

used by the legislature. It is not for the court to add to or amend the language, or by construction make

up deficiencies which are left in the Act. Even where there is a casus omissus,9 the remedy lies not with

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court, but with the legislature. It is not given to a court of law to construe a section on the footing that the

legislature has committed and error.

10In an English case of commissioner for Special Purposes of Income Tax v. Pemse Lord Halsbury

opined, "In fact, the language of an Act of Parliament may be founded on some mistake and that words

may be clumsily used, I do not deny. But I do not think it is competent to any count to proceed upon the

assumption that the legislature has made a mistake. Whatever the real fact may be, I think a court of law

is bound to proceed upon the assumption that the legislature is an ideal person that does not make

mistakes. It must be assumed that it had intended what it has said, and I think any other view of the

mode in which one must approach the interpretation of a statute, would give authority for an

interpretation of the language of an Act of parliament which would be attached with the most serious

consequence."

5. Legislature does not Waste its Words: The legislature is deemed not to waste its words or to say

anything in vain. It will be presumed that words in statute are used precisely and exactly, not loosely or

inexactly. The presumption is always against superfluity in a statute. An Act should be construed as to

avoid redundancy or surplus age. It is no doubt true that as a general rule legislatures may be presumed

not to make a superfluous provision. But this presumption is not a strong presumption and it is not

uncommon to find the legislature inserting superfluous provision under the influence of what may be

abundant caution. It is well-settled principle of construction that no part of a statute shall be so

construed as to convict the legislature of having engrafted a statutory clause which would be of no

purpose or avail to anyone.

Where the law provides a remedy to a person, the provision has to be so construed in case of ambiguity

as to make the availing of the remedy practical and the exercise of the power conferred on the authority

meaningful and effective. A construction which would render the provision negatory ought to be

avoided. Thus, when the court was required to pronounce upon commencement of limitation period for

filing a review petition under the Advocates Act 1961, it held that the expression 'the date of that order'

as occurring in S. 48-AA of the Act has to be construed as meaning the date of communication or

knowledge of the order to the review petitioner (D. Saibaba v. V. Bar Council of India (2003) 6 SCC 186,

Para 9).

Every part of a statute should be given as far as possible its full meaning and effect and no word or

clause should ordinarily be rejected as superfluous. An interpretation which makes a provision of law

completely nugatory cannot be correct. Effect should be given to every part of the section in an

enactment. It should not be assumed that the legislature used language without any purpose. Thus, the

clear language of S. 27 of the Indian Evidence Act, 1872 clearly indicates that statement in order to fall

under the section must contain all the qualifications laid down therein. When the person giving the

information leading to the discovery of certain facts relating to crime under investigation does not

happen to be an accused at the time he offers the said information, his statement cannot be used as

evidence as it does not come within the meaning of S. 27.

As far as possible, full meaning must be given to every word of a statute. No word should be regarded as

superfluous unless it is not possible to give a proper interpretation to the enactment, or the meaning

given is absurd or inequitable. No word is superfluous, redundant or surplus. A construction which

makes a provision superfluous must be avoided. A construction that makes any provision of a statute a

'dead letter' must be rejected. In using words or expressions, the legislature must always be presumed

not to be redundant. Law should be interpreted so as not to make any word redundant, if it is possible to

interpret it so as to utilise the meanings of all words used in the legislation. The cardinal rule of

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interpretation is that every section of the code is to be given a proper interpretation. It is not permissible

in interpreting a statute to omit words as redundant unless reading them in the statute would lead to

absurdity. The court cannot supply a clear and obvious lacuna in a statute, but it is incumbent on it to

avoid a construction which would render a part of the statute devoid of any meaning or application. The

rule of harmonious construction requires that no provision of the Act should be rendered totally

ineffective as a result of interpretation.

11In one case of National Insurance Co. Ltd. v. Swaran Singh Supreme Court observed that it is now

well-settled principle of law that rules validly framed become part of the statute. Such rules are,

therefore, required to be read as a part of the main enactment. An attempt must be made to give effect to

all the provisions under a rule for the interpretation of a statute. No provision should be considered as

surplus age.

6. Words Interpreted in ordinary sense unless Technical: The first and most elementary rule of

construction is that it is to be assumed that words and phrases of technical legislation are used in their

technical meaning if they have acquired one, and otherwise in their ordinary meaning.

It is to be presumed that the legislature has used the words in their known and ordinary signification,

particularly when they are themselves precise and unambiguous.

a) Plain and Natural Meaning not Interchangeable with Popular Meaning: The rule is that words

used by the legislature should be given their plain and natural meaning. By plain and natural

meaning is meant the literal and popular as opposed to a figurative or technical meaning.

In one case Kerala High Court said that the expression 'water cooler' and 'refrigerator' are popular

words well understood as meaning different things. They should not be interpreted according to any

technical or scientific meaning.

12But in one case of Kanwar Singh v. Delhi Municipality Supreme Court said that the rule does not

imply that the court is not entitled to depart from the ordinary meaning of words under all

circumstances. The court may depart from the ordinary meaning of words under all circumstances.

The court may depart from the ordinary dictionary meaning in some situations, and give it a

meaning which will advance the remedy and suppress the mischief according to the true intention of

the statute.

b) Ordinary Meaning subject to context and other factors: A word which is not defined, but which is

a word of every day, use must be construed in its popular sense. In Puma Ayurvedic Herbal (P) Ltd. 13

v. CCE Nagpur the point of dispute was whether the products made by the appellant, a

manufacture of ayurvedic products, should be categorized as medicament or cosmetics.

Differentiating between a cosmetic and a medicament the court ruled that cosmetic products are

meant to enhance beauty whereas a medicinal product or medicament is meant to treat some

medical condition. It may happen that while treating a particular medical problem, after the problem

is cured the appearance of the person concern may improve. However, what is to be seen is the

primary use of the product, the extent or quantity of medicament used in a particular product is also

not a relevant factor. The fact that use of medicinal element in a product was minimal does not

detract from its being classified as a medicament.

The rule is not a law but a subsidiary rule of construction which may often be usefully applied in

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considering the intention of the legislature. However, it is the duty of the court not to confine itself to

the mere verbal or literary effect of the provisions, as if applied to an abstract subject.

c) Technical Words have Technical Meaning: In ascertaining the meaning of an expression used in

a statute, certain norms are adopted. If the legislature has used an expression as used ordinarily in

the context of a particular branch of law, it must be assumed that because of its constant use the

legislature must be deemed to have used such expression in a particular sense as it is understood

when used in a similar context.. If an expression has acquired a special connotation in law,

dictionary or general meaning ceases to be helpful in interpreting such a word. Such an expression

must be given its legal sense and no other. Where a word used by the legislature has a fixed

technical meaning, it is to be taken in that sense, unless the context or other evidence of meaning

indicates a contrary legislative intent. The technical words and phrases of the law are presumed to

have been used in their proper technical signification when used in statutes, unless it plainly

appears that a different meaning was intended by the legislature. The first and most elementary

principle 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.

The general rule with respect to terms used in trade or commerce, is that in the absence of evidence

of a contrary legislative intent, words of commerce or trade, when used in a statute relating to those

subjects, are presumed to have been used by the legislafure in their trade or commercial meaning.

14In the case of Delhi cloth Mills v. State of Rajasthan it was held that words and expression, in. a

sales tax law should be construed as understood in the trade by the dealer and the consumer. The

sense in which they understand them is the 'definitive index of the legislative intention'.

Particular words used by the legislature in the denomination of articles should be understood

according to the common commercial understanding of the term used, and not in their scientific or

technical sense for the legislature does not suppose our merchants to be naturalists, or geologists

or botanists.

In another case, the question as to whether salted peanuts and cashew nuts fell within the category

of 'fruits' or 'vegetable' for the purpose of the Excise Act, came up for consideration, and the

question was answered in the negative in spite of the evidence of botanists that both peanuts and

cashew nuts are vegetables in the wider meaning of that. word, that each is a 'fruit' and that neither

is a 'nut'. On these principles, it has been held that under the Travancore General Sales Tax Act

1924, horticultural produce grown by the owner in the circumstances specified is exempt from tax,

but tea, though an agricultural produce grown by the owner in the circumstances specified, shall not

have the benefit of that exemption. Tea' in the context in which it occurs cannot but mean the leaf

gathered from the tea bush, whether it has or has not been subjected to the processes which

prepare it for the market, and hence, the green leaves just like processed leaves are liable to sales

tax. 'Cooked food' in the context does not include 'biscuits', for purposes of taxation under the Uttar

Pradesh Sales Tax Act 1948, and hence not liable for lower rates of sales tax.

7. Legislature presumed to know the Rules and Grammar: Crawford in statutory construction, 15says since one may assume that the legislature knew and understood the rules of grammar, such

rules should be considered by the court in their efforts to ascertain the meaning of a statutory enactment

on the theory that they will reveal or tend to reveal the correct sense or meaning thereof.

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8. Legislature Presumed to know the law, Judicial Decisions and General Principles of Law : 16

According to Sutherland , the legislative language will be interpreted on the assumption that the

legislature was aware of existing statutes, the rules of statutory construction, and the judicial decisions

and that if a change occurs in legislative language a change was intended in legislative result. It is well-

settled rule of construction that when a statute is repealed and re-enacted, and words in the repealed

statute are reproduced in the new statute, they should be interpreted in the sense which had been

judicially put on them in the repealed Act, because the legislature is presumed to be acquainted with the

construction which the courts have put upon the words, and when they repeat the same words, they

must be taken to have accepted the interpretation put on them by the court as correctly reflecting the

legislative mind.

17In Ahmedabad Private Primary Teachers Association v. Administrative Officer the question

before the court was whether teachers would fall within the category of 'employees' as defined in the

Payment of Gratuity Act, 1972. The court observed that by virtue of the doctrine of Pari Materia,

reference to other statutes dealing with the same subject or forming part of the same system is a

permissible aid to the construction of provisions in a statute. The court referred to the definition of

'employee' in a number of labour legislations, in order to determine whether teachers came within the

meaning of 'employee' as defined under the payment of Gratuity Act 1972 and decided in negative.

The court observed that the legislature was aware of the various definitions of 'employee' under other

labour legislations, and in particular, as enumerated in the Employees Provident Fund Act 1952. Being

so aware, the legislature would have defined 'employee' in a wider sense, as done in the EPF Act, if it

intended to include teachers within the definition. The legislature is presumed to know the law.

9. Presumption subject to anything showing a contrary intention: If the legislature uses forms of

words which have received judicial construction, the presumption is that the parliament in subsequent

statutes did so use them unless there is any thing in the Acts showing that the legislature did not mean to

use the words in the sense attributed to them by the courts.

The presumption in such cases is that the legislature did not intend to depart from the meaning given by

the court.

Thus, the legislature knowing fully well the judicial interpretation put on the word 'discharge' occurring in

S. 437 of the old Cr. PC 1908, has also in the new Cr. PC 1973, used the word 'discharge' in S. 398. This

word should, therefore be interpreted in the sense which has been judicially put under the old repealed

code.

10. Legislature is Fair: Where there are two constructions, the one of which will do great and

unnecessary injustice, and the other which will avoid that injustice, and will keep exactly within the

purpose for which the statute was passed, it is the bounden duty of the court to adopt the second and

not adopt the first of those constructions.

In Maikoo Lalv. Santoo, full Bench of the Allahabad High Court agreed with the principle of Maxwell: 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 principles should, in all cases of doubtful significance, be presumed to be the true one.

The underlying purpose of all legislation is to promote justice among men. The object and effect of the

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statute should be primary concern in the interpretation of statutes. The court should avoid a

construction which will render the statute unjust and oppressive or unreasonable or contrary to public

interest.

A construction which permits one to take advantage of one's own wrong or to impair one's obligations

under a current statute should be discarded.

The construction of the provision should be as far as possible beneficial, to suppress the mischief and

advance the remedy, if this can be done without violence to the language of the section.

A construction which would make the statute effective and productive of the most good of the people

should be accepted. A construction that produces an effect at variance with commonly recognized

concept of what is just, right and ethical should be avoided. Moreover, in a fast changing society, the law

has to be liberal and flexible to serve the modern concept of social purpose.

11. Vested Rights are Preserved Top of Form

a. Vested rights are not presumed to be abrogated ': There is a presumption against the taking away of

a vested right by any fresh legislation, and a construction which involves the taking away of vested

rights ought not to be adopted if the words of the enactment are open to any other construction.

b. No Retrospective Operation: 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 the effect cannot be avoided without doing

violence to the language of the enactment. If the enactment is expressed in language which is fairly

capable of either interpretation, it ought to be construed as prospective only.

A law is said to be not retrospective when right or liability arising out of jural relation constituted

before the new law came into force or created by a jural fact or even taking place before the new law,

or any relief or remedy in respect of that right or liability remains unaffected by the new law.

Where vested right are concerned, an amendment has no retrospective effect unless it is so stated

expressly in the Act. The repealing enactment cannot be given retrospective operation so as to

impose an impossible condition of forfeiture of a vested right.

c. What are Vested Rights: Every statute which prima-facie takes away or impairs vested rights

acquired under existing law or creates new obligations, or imposes a new duty, or attaches a new

disability in respect of transactions or considerations already past, must be presumed to be

intended not to have a retrospective operation.

The presumption applied not only to a substantive right but also to a right of suit, and a right of

appeal, both of which are vested rights.

12. Jurisdiction of Court: Jurisdiction may be defined as a power of a court to hear and determine a

cause, to adjudicate and exercise any judicial power in relation to it. In other words, by Jurisdiction is

meant the authority by which a court has to decide matters that are litigated before it or to take

cognizance of matters prescribed in a formal way for its decision. In short Jurisdiction means the power

to hear and determine issue of law and fact; the authority by which the judicial officers take cognizance

of and decide causes; the authority to hear and decide a legal controversy; the power to hear and

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determine the subject-matter in controversy between parties to a suit and to adjudicate or exercise any

judicial power over them; the power to hear, determine and pronounce judgment on the issues before

the court; the power or authority which is conferred upon a court by the legislature to hear and

determine causes between parties and to carry the judgments into effects. The power to inquire into the

facts, to apply the law to pronounce the judgment and to carry it into execution.

The jurisdiction of the court may be qualified or restricted by a variety of circumstances. Thus, the

jurisdiction may have to be considered with reference to place, value and nature of the subject matter.

a. Jurisdiction Conferred and Taken Away Only by law : It is only by virtue of statutes that

jurisdiction is conferred on courts, or taken away from them. In the absence of clear provisions,

the ordinary rule of interpretation that a statute does not create new jurisdiction or enlarge

existing ones, applies. It cannot be impliedly affected by a statute which has nothing to do with

jurisdiction.

b. Exclusion of jurisdiction must be in express terms or by use of such terms as must lead to

interence of such exclusion. Court will not favour an interpretation which has the effect of taking

away the jurisdiction of the competent authority, unless the same is expressly provided for in

law.

c. Consent cannot give Jurisdiction: The parties can, by mutual consent no more take away

a jurisdiction vested by law in any court than they can confer on it when it is not so vested by law

When a judge has no inherent jurisdiction over the subject matter of a suit the parties cannot

confer jurisdiction on him by mutual consent.

d. Statutory Jurisdiction to be Exercised Subject to Specified Limitations: Where the

jurisdiction of a court in certain matters is statutory, the court, however admirable its intentions,

is not entitled to go outside those provisions, and in effect to legislate for itself. A statute

conferring jurisdiction under certain particular conditions cannot be taken to confer jurisdiction

also in cases which do not fall within the ambit of the conditions laid down merely on the basis of

analogy. But where an Act confers jurisdiction on a tribunal, it must be taken to have impliedly

granted the power of doing all such acts or employing such means as are essentially necessary

to its exercise or execution.

e. Jurisdiction of Superior Courts: The exercise of jurisdiction by the Supreme Court in

India, is dependent upon and governed by the specific provisions of the constitution. It cannot

claim to exercise a jurisdiction not vested in it under the provisions of the constitution.

f. No implied authority to deprive Superior Courts of their Jurisdiction: It is a well known

rule of interpretation of provisions barring the jurisdiction of civil courts that they must be strictly

construed for the exclusion of the jurisdiction of a civil court and least of all the Supreme Court,

and it is not to be lightly inferred. This is not to be presumed without express words an authority

to deprive the Supreme Court of a jurisdiction which it had previously exercised or to extend the

privative jurisdiction of the Supreme Court to the inferior courts. The general presumption is

against construing a statute as ousting or restricting the jurisdiction of the Superior Court.

g. Jurisdiction of Civil Courts: Sec. 9, Civil procedure Code 1908, lays down that the courts

shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is

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either expressly or impliedly barred. One general rule of law is that when a legal right and an

infringement thereof are alleged, a course of action is disclosed and unless there is a bar to the

entertainment of a suit, the ordinary civil courts are bound to entertain the claim. Sec. 9 CPC

lays down a general rule in favour of the jurisdiction of the civil court and the burden of proof is on

the party who pleads an exception to the general rule. The exclusion of the jurisdiction of civil

courts is not to be readily inferred, but such exclusion must either be explicitly expressed or

clearly implied. Interpretation in favour of the jurisdiction of a civil court should be preferred to

the one for its absence.

COMMENCEMENT, OPERATION OF STATUTES

Parliament is the maker of law. The birth of a law, its life span and the date on which it would come to an end

is determined by the legislature alone.

Commencement of Statute: Commencement means coming into .operation of the statute on the day on

which the Actor statute comes into force. Sec. 3 (13) of the General clause Act, 1897 defines

commencement. It says 'commencement' used with reference to an Act or Regulation, shall mean the day

on which the Act or Regulation comes into force. The legislature may expressly appoint a particular future

date on which a law shall come into force.

In that case the date of its enactment or date of its receiving Presidential assent is irrelevant. The law shall

come into force from immediately after zero hours on the particular date on which its coming into force is

expressly intended. For example, the code of Criminal Procedure received the assent of the President of

India on 25.1.1974 but it is categorically provided in section 1 (3) that it shall come into force on the first day

of April 1974. As such, the code came in force with effect from 1.4.1974 only. However, where no such day

of operating of a statute is appointed, the law comes into force from the date on which President of India

accorded his assent to it. Sec. 5 of General Clauses Act, 1897 provides (1) where any Central Act is not

expressed to come into operation on a particular day, then it shall come into operation on the day on which it

receives assent - (a) in case of a Central Act ma e before e commencement of the constitution, of the

Governor-General and (b) in case of an Act of Parliament, of the President (2) Unless contrary is

expressed, a Central Act or regulation shall be construed as coming into operation immediately on the

expiration of the day preceding its commencement.

It is quite often that the Commencement of an Act is postponed to some specified future date or to such date

as the appropriate Government may, by notification in the Official Gazette, appoint. Provision is also at

times made for appointment of different dates for coming into force of different parts of the same Act.

An Act cannot be said to commence or to be in force unless it is brought into operation by legislative

enactment or by the exercise of authority by a delegate empowered to bring it into operation (state of Orissa

v. Chandra Shekhar Singh, AIR 1970 SC 398). When enforcement of a statute or a provision therein is left to

the discretion of the Government without laying down any objective standards, no writ of mandamus can be

issued to the Government to enforce the statute or the provision. (AX. Roy v. Union of India, AIR 1982 SC

710) But if considerable time has elapsed since passing of the statute a writ can be issued directing the

Government to consider the question whether the statute or the provision should be brought into force.

(Altmesh Rein v. Union of India, AIR 1988 SC 1768).

In Hariya v. State of Rajasthan (AIR 1988 SC 1768) the Supreme Court observed that in the absence of

specified date mentioned by the statute of its commencement, it will come into force from the day of assent

of the President of India or Governor of the State is received.

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On the basis of life we can classify statutes into two parts:

1) Temporary statutes,

2) Perpetual statutes;

1) Temporary Statutes: The statute for which life period is fixed, is called "Temporary statute". Life

period means the period for which statute shall be in force. Temporary statute has its duration for

specified time and it expires on the lapse of that specified time. The legislature may extend the duration

of a temporary statute. Legislature is also empowered to obliterate a temporary statute prior to

completion of its life. If the temporary statute is not so obliterated, it comes to an end automatically upon

completion of its term. This is called "expiry of temporary statute". After expiry, the law no more survives.

It loses its effect and operation. It does not have any force.

However, some statutes contain some special provision on the contrary. According to those provisions,

the statute continues to have effect even after its expiry. For example, sub-section (3) of Sec. 1 of the

Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA) provides otherwise.

This subsection reads "it shall come into force on such date as the Central Govt. may by notification in

Official Gazette, appoint and shall remain in force for a period of two years from the date of its

commencement but its expiry under the operation of this sub-section shall not affect:

a) The previous operation of or anything duly done or suffered under this Act or any rule made

thereunder or any order made under any such rule, or

b) Any right, privilege, obligation or liability acquired, accrued or incurred under this Act or any rule

made thereunder or any order made under any such rule, or

c) Any penalty, forfeiture or punishment incurred in respect of any offence under this Act or any

contravention of any rule made under this Act or of any order made under any such rule, or

d) Any investigation, legal proceeding or remedy in respect of any such right, privilege,

obligation, liability, penalty, forfeiture or punishment as aforesaid,

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced

and any such penalty, forfeiture, or punishment may be impo.sed as if this Act had not expired.

The expiry of temporary statute takes place automatically. No legal procedure is required to be

observed. The date of expiry of a temporary statute is, in fact, known since the date of its enactment.

The Legislature is also competent to further increase the life span of a temporary statute by

enacting a fresh statute or by exercise of powers conferred under original statute.

Effect of Expiry of Temporary Statutes: When a statute expires by efflux of time, the following are its

effects:

1) As to effect and operation of the statute: After expiry, the law comes to an end and no more

remains in force. It becomes inoperative and loses its effect.

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2) As to institution of fresh proceeding under the Act: As a general rule, after expiry of a temporary Act,

no proceedings can be taken upon it unless contrary is provided in the statute itself. A person cannot

be prosecuted and convicted for an offence against the Act after its expiration in absence of saving

provision. If life of temporary Act expires, consequences of the same also get extinguished with the

date of expiry.

3) As to pending proceedings: If prosecution has not ended before the date of expiry of the Act and

the legal proceedings remain pending under expired statute, such proceedings cannot be

continued against a person since they terminate as soon as statute expires. The proceedings will

automatically terminate as a result of termination of Act. However, where saving clause is provided

in the statute, there will be no effect of expiry of statute on the proceedings pending under it.

4) As to Notification, Orders, Rules and Regulations made under the statute: When a temporary

Act completes its contemplated life and expires by efflux of time, any appointment, notification,

order, scheme, form, bye law, rule made or issued under that Act also comes to an end.

5) Expiry does not make statute dead for all purposes: Even if there is no saving clause in the

temporary statute, it does not become a dead letter after its expiry for all purposes. Where a person

has violated the provisions of a temporary Act for which he has been prosecuted and sentenced

during the continuance of that temporary statute, such person cannot be released prior to suffering

full term of sentence just because the statute has expired during the span of his sentence.

To explain it further, take for example that a person has committed an offence under a temporary

statute. He has been prosecuted, convicted and sentenced to imprisonment for a term of two years.

One year after the commencement of his sentence, the temporary statute under which he was

punished, expires. Can such person be released before suffering the full term? The answer is "No".

Perpetual Statutes: The meaning of the term "Perpetual" is continuing or enduring forever. Therefore,

“Perpetual” statutes are those which remain operative forever. They have no fixed life time. Since the ration

of a statute, if any, is specified in the statute itself, it can be said that the statutes which do not provide for

their life period, are perpetual. Unlike temporary statutes, there is no pre-decided date of termination of

perpetual statutes. They do not come to an end automatically due to efflux of time. They do not lapse after a

certain period. There is no expiry of these 9tatutes. They survive indefinitely. They come to an end only

when they are abolished by legislature itself by way of enacting another statute he process of abrogation of

perpetual statute is called "repeal".

REPEAL OF STATUTES

Right to Repeal - Power of a legislative body to r9peal a law is co-extensive with its power to enact such a

law. Just as the legislature has the power to enact laws, similarly it has the power to repeal them nobody has

a vested right in a statute. An Act may be very beneficial to a particular person, or its repeal ay affect him

injuriously yet the right of the legislature to abrogate an Act by repealing it is absolute. No statute can make

itself secure against repeal. There is nothing to prevent any parliament from enacting at a particular statute

shall never in any circumstances be altered or abrogated, and at certain troubled periods of history this

seems to have been the intention of the legislators.

The main object of repealing and amending Acts is only to strike out the unnecessary Acts and excise dead

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matter from the statute book in order to lighten the burden of ever increasing spate of legislation and to

remove confusion from the public mind.

If there is a repugnancy between the two pieces of legislation, to such an extent that both cannot stand

together and operate simultaneously, the latter will have the effect of impliedly repealing the former.

a. Express Repeal: Express repeal of a statute is usually made by stating that the earlier statute or a

particular provision therein is thereby repealed. Usually enactments repealed are mentioned in a

schedule attached to the repealing statute.

Sometimes the expression used in the later statute for such purpose or repealing of statute runs: 'all

provisions inconsistent with the Act are repealed', or 'all Acts and parts of Act in conflict with the

provisions of this Act are hereby repealed', or 'all laws and parts of law in conflict herewith are expressly

repealed. Provisions of this character leave the question open as to what laws are inconsistent and are

intended to be so repealed.

In a case of repeal by implication, the question arises regarding the extent and scope of the repeal. If the

repealing clause is by its terms confined to a particular Act, quoted by title, it will not be extended to an

act upon a different subject. And a general Act repealing all Acts inconsistent therewith will usually apply

to general Acts and not to special or local laws. The reason behind this rule is that the special Act is not

repealed because it is not named, or because there is no absolute inconsistency between the general

Act and the special act. Consequently, if the repealing Act was named the special or if the two were

irreconcilably inconsistent, the special Act would also be terminated.

If the subordinate legislation is to survive the repeal of its parent statute, the repealing statute must say

so in so many words and by mentioning the title of the subordinate legislation.

b. Implied Repeal: Where there is direct reference in the repealing clause to a particular Act, it is a

case of express repeal. But where there is no direct reference, the matter will have to be determined by

taking into account the exact meaning and scope of the general words contained in the repealing clause

and the principles of law which govern the interpretation of the same. It is well settled that implied repeal

is not readily inferred and the mere provision of an additional remedy by a new Act does not take away

an existing remedy.

There is a presumption against a repeal by implication. The reason for the presumption is that the

legislature while enacting a law has a complete knowledge of the existing laws on the subject matter

and therefore, when it does not provide a repealing provision, it gives out an intention not to repeal the

existing legislation. The burden to show that there has been a repeal by implication lies on the party

asserting it. If by any fair interpretation both the statutes can stand together, there will be no implied

repeal. If possible implied repeal shall be avoided. One of the important tests to determine the issue of

implied repeal would be whether the two provisions are so irreconcilably inconsistent that they cannot

stand together or the intention of legislature was only to supplement the provisions of the earlier Act.

This intention is to be ascertained from the provisions of the latter Act.

An implied repeal of an earlier law can be inferred only where there is the enactment of a later law which

had the power to override the earlier law and is totally inconsistent with the earlier law that is where the

two laws - the earlier law and the later law - cannot stand together. This is a logical necessity because

the two inconsistent laws cannot both be valid without contravening the principle of contradiction. The

later law abrogate earlier contrary laws. This principle is however subject to the condition that the later

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law must be effective. If the later law is not capable of taking the place of the earlier law, and for some

reason cannot be implemented, the earlier law would continue to operate. To such a case, the rule of

implied repeal may result in a vacuum which the law-making authority may not have intended.

A repeal by implication is only effected when the provisions for a later enactment are so inconsistent

with or repugnant to the provisions of an earlier one that the two cannot stand together. When an

affirmative statute contains no expression of a purpose to repeal a prior law, it does not repeal it unless

the two acts are in irreconcilable conflict or unless the later statute covers the whole ground occupied by

the earlier and is clearly intended as a substitute for it and the intention of the legislature to repeal must

be clear and manifest.

Therefore, no repeal can be implied unless the two acts cannot stand together. But where there are

orders under two different Acts each inconsistent with the other and each Act providing that any order

made thereunder shall have effect notwithstanding anything inconsistent therewith in any other

enactment or instrument having effect by virtue of any other enactment, the doctrine of repeal by

repugnancy does not apply and both orders remain in force in spite of their repugnancy. It is a maxim of

law that implied repeals are not to be favored, and where two statutes are entirely affirmatively and

identical, no question of inconsistency could arise where the operative terms of two enactments are

identical and the enactments, so to speak, seem parallel to implied repeal and that would be particularly

in case where the earlier enactment is one of temporary duration while the later is a permanent

enactment.

Implied repeal is a question of fact. No vested rights exist in a citizen to as 0 a a statutory provision has 18been impliedly repealed.

Where there is a 'clear and direct' inconsistency between two Acts and it is 'absolutely irreconcilable'

bringing the two Act into 'direct collision', then only one of these may be regarded as impliedly . repealed

by the other.

Repeal by implication is never to be favored, it is no doubt the necessary consequence of inconsistent

legislature unless absolutely necessary.

An enactment or a rule having the force of law cannot be held to be repealed by implication by a later

enactment or statutory rules unless the provisions of the earlier enactment or rule are plainly repugnant

to those of the subsequent enactment or rule and the entire subject matter of the first is taken away by

the second.

Law does not favour repeal by implication and it is only in the last resort that courts hold that one

enactment is repealed by another even without express words.

In the above said circumstances we may conclude that a statute is repealed by implication in the

following cases, namely:

i) If its provisions are plainly repugnant to the subsequent statute.

ii) If the two standing together would lead to wholly absurd consequences.

iii) If the entire subject matter of the first is taken away by the second.

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Test of Implied Repeal: The test as to whether there has been a repeal by implication by subsequent

legislation is this: are the provisions of a later Act so inconsistent with or repugnant to the provisions of an

earlier Act that the two cannot stand together.

In the case of Ishwar Chandra Chitalangial v. State (81 CWN 690) lordships of Calcutta High Court laid

down the following three tests:

a. Where there is a direct conflict between the two provisions.

b. Where parliament intended to lay down an exhaustive code in respect of the subject matter

replacing the Act of the state legislature.

c. Whether the law made by parliament, and the law made by state legislature occupy the

same field.

Where Right and Procedure Both Affected: If the rights and procedure are both altered by an amending

or repealing statute, then if the rights occurred under the previous enactment are saved, it would seem to be

consequential that the old procedure is saved as well unless the new Act makes the new procedure

applicable to old right.

Repeal of By Laws: If the statute under which by laws are made is repealed, those by laws are impliedly

repealed and cease to have any validity unless the repealing statute contains some provision preserving

the validity of the by law notwithstanding the repeal. When an Act of Parliament is repealed it must be

considered as if it had never existed.

Implied Repeal of a notification by Amending Act: Notification issued by the delegated authority in

exercise of the power conferred under the statute stands impliedly repealed or rendered is effective when

ever the legislature intervenes and amends the Act relating to the same subject by making an amendment

in the main Act.

Effect of Amendment: The Principle that parties are governed by law in force at the date when a suit is

instituted and any subsequent amendment or alteration of the law cannot affect pending proceedings, must

always be read subject to the corollary that a legislature could always expressly provide the pending

proceedings be affected by an amendment of the law.

Though sometimes distinction is made between 'repeal' and an 'amendment' in essence there is no real

distinction. Amendment is, in fact, a wider term and it includes abrogation or deletion of a provision in an

existing statute. If the amendment of the existing law is small, the Act professes to amend; if it is extensive, it

repeals the law and re-enacts it.

Amendment is, in fact, a wider term and it includes abrogation or deletion of a provision in an existing

statute. If the amendment of an existing law is small, the Act professes to amend, if it is extensive, it repeals

a law and re-enacts it. An amendment of substantive law is not retrospective unless expressly laid down or

by necessary implication inferred.

Repeal and Void Act: There is difference between a repealed Act and void Act. An Act is repealed by

legislation while an Act or its provisions are declared void by judicial expression or declaration.

Effect of Repeal: Section 6 of the General Clause Act, 1897, lays down the effect of repeal of an enactment

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as under:

"Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any

enactment unless a different intention appears, the repeal shall not :

a) Revive anything not in force or existing at the time at which the repeal takes effect, or

b) Affect the previous operation of any enactment so repealed or anything duly done or suffered

thereunder, or

c) Affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment

so repealed; or

d) Affect any penalty, forfeiture or punishment incurred in respect of an offence committed against any

enactment so repealed, or

e) Affect any investigation, legal proceeding or remedy in respect of any such right, privilege,

obligation, penalty, forfeiture or punishment as aforesaid and any such investigation, legal

proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or

punishment may be imposed as if the repealing Act or regulation had not been passed.

Whenever there is repeal of an enactment, the consequences laid down in Sec. 6 of the General Clauses

Act will follow unless as the section itself says a different intention appears.

Doctrine of Desuetude: Desuetude is a process by which an Act of Parliament may lose its force without

express repeal. The Supreme Court has held in the Case of Municipal Corporation for the City of Pune and

Another v. Bharat Forge Co. Ltd. and others (JT 1995 (3) SC 312) that there was no objection in principle to

apply the doctrine to Indian statutes as well. It would advance the cause of justice to accept this doctrine.

Persons in free India must be protected from being prosecuted and punished for violation of the law which

has become dead. .

Repugnancy and Repeal: A subsequent statute may expressly repeal the inconsistent provisions of an

earlier Act. Where, however, the later Act does not expressly contain words to that effect but the two sets of

provisions contained in the two enactments are destructive of each other, the provisions in the later Act shall

prevail and the court would treat the earlier provisions as repealed by implication. The law does not favour

repeal by implication and the courts construe the provisions of the Act strictly in this respect. The cardinal

principle is that the enacting and saving clause and the proviso should be construed together so as to find

out the real intention of the Legislature. However, if the provisions of the two enactments are repugnant to

each other, the rule is that the last must prevail. The earlier Act stands impliedly repealed by the later. As

already stated, the courts are averse to declaring an earlier provision in the Act as impliedly repealed unless

the two Acts are so patently repugnant to each other that effect cannot be given to both at the same time. A

statute should be so construed, wherever possible, as to avoid repugnancy or conflict with other statute.

Kinds of Repeal

a) The legislature may enact a distinct repealing enactment to declare that an earlier Act has been

abolished. It is called "Express Repeal".

b) Implied Repeal: The legislature may enact an enactment which is so inconsistent with the earlier

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Act that no harmony between the two is possible or it covers the entire subject matter of the earlier

statute. This is called "Implied Repeal", of the earlier Act.

Essentials of Express Repeal: The essential ingredients of an express repeal are mentioned below:

a) There must be a subsequent repealing Act.

b) Such subsequent Act must seek to repeal an earlier Act.

c) Specific words must be used in the subsequent repealing Act, showing clear intendment to effect

repeal of an earlier Act.

d) Usually anyone of the following forms are employed to intend the express repeal -

“……..is hereby repealed"

“……..shall cease to have effect"

“……..shall be inoperative"

“……..shall be invalid"

““……..all provisions inconsistent with this Act are hereby repealed".

Meaning of Operation of Statute: Normally, a Central Law comes into force from the date, on which -

receives president's assent. Similarly a State Law comes into force on the date on which the Governor

records his assent. The Parliament in respect of Central Law and the State Legislature in respect of the Law

may appoint a future date from which effectuation of the law is intended.

Such a date is expressly mentioned in the Act itself. Giving effect to an enactment is called "operation of

statute" and the day from which the statute becomes operative is called "commencement of statute". Thus,

where specific date is provided in the statute itself, it commences from that date. But in the absence of any

such date, a law commences from the date of receiving assent of President or Governor, as the case may

be. If a Central Act receives President's assent on 26-03-2005, it comes into operation on the midnight

between 25th and 26th March' 2005. The law sets into motion only after the date of its commencement.

Prior to this date, the law has no force.

Prospective Operation: "Prospective" means "in future". Therefore "prospective operation" means the

operation from a future date. A Central law passed by Parliament commences either from the date it

receives Presidential assent or from a future date as specified in the statute. In both cases the law applies

only to those proceedings which have been instituted after its commencement. Prior to commencement, a

law has no force, As such, a person doing an act prior to commencement of the law which declares that act

as offence cannot be prosecuted for the same. But if after commencement of that law, a person commits

same act, he shall be an offender and shall have to suffer with punishment. To explain it further, take for

example that act 'has been declared as punishable offence under the statute 'B'. The statute 'B' is brought

into, operation from date 'X'. Prior to date 'X', a person doing act 'A' cannot be held liable but if the same Act

'A' is committed after date 'X', it would attract penal consequences. Similarly, where the punishment for an

offence has been enhanced by a later law, a person already suffering with punishment for that offence

under a previous law cannot be directed to undergo the enhanced term as per subsequent law. In the same

manner, a law shall have no application in case of the proceedings which are pending before the court as on

the date on which it has been brought into operation.

In Keshavan v. State of Bombay, (AIR 1951 SC128) it was held that it is a cardinal principle of construction

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that every statute is prima facie prospective unless expressly or by necessary implication made

retrospective.

Retrospective Operation: "Retrospective" means "from past date", Therefore "retrospective operation"

means the operation from a past date. Generally every enactment is operated from a future date. But the

legislature is competent to give effect to a law from back date that is, retrospectively. The result of

retrospective operation is that the retrospective law is legitimately applied to pending proceeding also.

If the legislature intends to give retrospective effect to an enactment, such intendment has to be expressly

declared. In the absence of such declaration, the law is deemed to be prospective.

In the case of Zile Singh v. State of Haryana [(2004) 8 SCC 1], it was observed that it is cardinal principle of

construction that every statute is prima facie prospective unless it is expressly or by necessary implication

made to have retrospective operation. But the rule in general is applicable where the object of the statute is

to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in

the statute sufficient to show the intention of legislature to affect existing rights, it is deemed to be

prospective only.

Where the legislature intends to enact a retrospective law, it should express the same in unequivocal terms.

If no such declaration is made in the statute, the law shall be presumed to be prospective in operation. A law

is not deemed to be retrospectively operated unless clearly provided.

Operation of various kinds of Statutes: A law which impairs the vested rights, creates new obligations,

imposes new duty or attaches new disability is presumed not to have retrospective operation. If Legislature

intends to give retrospective effect to any such statute, the intention thereof must be declared in clear and

specific terms. The retrospective operation of various kinds of law is discussed below:

a. Statutes providing substantive rights presumed to be prospective: The statutes providing

substantive rights are not to be presumed retrospective. An enactment which seeks to take away any

vested right cannot be given retrospective operative unless it is expressly intended.

b. Statutes dealing with procedure are presumed to be retrospective: Those statutes which

modify the existing procedures or provide for new procedures are given retrospective effect. If new Act

affects the matter of procedure only, then it applies to all actions pending as well as future.

According to Maxwell no person has a vested right in any course of procedure. He has only the right to.

prosecution or defense in the manner prescribed. If the procedure is altered, he has no other right than

to proceed according to altered mode.

In the matter of New India Assurance Co. Ltd. v. Shanti Misra (AIR 1976 SC 237) it was held by Hon'ble

SC that if new Act requires certain type of original proceedings to be instituted before a special Tribunal

to exclusion of civil court, all proceeding of that type whether based on old or new cause of action will

have to be instituted before that Tribunal.

The statutes dealing with substantive rights are presumed to be prospective and the statutes dealing

with procedures are presumed to be retrospective operation. Merely because a statute is procedural, it

cannot be operated retrospectively. What is to be seen is the effect of application of the statute. If

application of a procedural law like statute of limitation on past causes of action leads to revival or

extinguishment of a right of suit, it cannot be operated retrospectively.

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c. Statutes Governing Succession are not retrospectively operated: Statutes regulating

succession are not applicable to successions which had already opened.

In one case of Eramma v. Veerupana (AIR 1966 SC 1879) it was held that the provisions contained in

Sec. 8 of the Hindu Succession Act, 1956, which lays down that the property of a male Hindu dying

intestate shall devolve according to provisions of the Act, is inapplicable to a case where successions

opened before the Act.

d. Statutes regulating transfers and contracts are not retrospectively operated: Where a statute is

enacted prescribing new formalities for effecting a transfer, any transfer after commencement of such

statute shall have to be made in accordance with the provisions of the Act and any contravention thereto

would render the transfer invalid. But the transfers made prior to coming into force of such statute

remain unaffected. They are not declared void even though the new formalities prescribed were not

observed. The reason is that the formalities have been prescribed by an Act which was effectuated after

completion of transfer. If the transfer was made in contravention of the law in force at the relevant time,

then transfer is illegal in accordance to that law. However, the transfer cannot be invalidated for non-

observance of new formalities prescribed in later enactment. Therefore, the law regulating transfer is

not applied to past cases.

Where a statute contained certain formalities to be observed for a lawful transfer and those formalities

are dispensed by a later enactment, then an invalid transfer under previous law does not get validated.

One cannot take a plea that though the transfer was not legal under the previous law due to non-

observance of formalities, prescribed therein, but now after removal of those formalities by subsequent

law, it is no more necessary to observe them and as such the transfer becomes legal.

A transfer made in accordance with the existing laws is a valid transfer. If a subsequent enactment

prohibits the transfer of the same nature, the effect is that no such transfer can take place after

commencement of prohibitory statute. But the earlier valid transfer cannot be invalidated by

subsequent prohibition.

e. Statutes-prescribed limitations are prospective but may have retrospective operation for

certain matters: Certain statutes prescribe period of limitation for initiating legal action. Such statutes

do not create any right. The object is to prescribe period of limitation. After expiry of period of limitation,

the right to sue comes to an end. A subsequent limitation Act which provides a longer period of limitation

cannot be applied to the cases which are time barred. Once a particular action becomes banned under

earlier Limitation Act, recourse to later Act cannot be taken to revive the extinguished right. The larger

period of limitation provided by later Act is of no help.

On the other hand, if limitation period provided by the earlier law is reduced by a later Act and the right to

sue subsists under previous law but stands extinguished ~s per later Act, the matter will be governed by

earlier law only.

Statutes providing limitation are regarded as procedural law.

Statutes of limitation are thus prospective in nature since they neither revive a right of action which is

already banned, nor extinguish a right of action subsisting on that date. But they are retrospective in so

far as they apply to all legal proceedings brought after their operation for enforcing causes of action

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accrued earlier.

f. Fiscal statutes are prospective in respect of changing provisions but are retrospective in

respect of the provisions dealing with procedure :

Fiscal statutes are presumed to be prospective only and not retrospective. However, this rule applies

only to charging sections and other substantive provisions. Charging sections are those sections by

which a charge is created. This rule has no application in respect of procedural part. Procedural part of

taxing Act is retrospective and applies to pending proceedings also.

"In the case of Gem granites v. Commissioner of Income Tax, T.N. ((2005) 1 SCC 289) Hon'ble Supreme

Court made certain considerations as to operation to fiscal statute as under:

1) The fiscal statutes are so operated as not to effect finality of tax assessment.

2) Assessee cannot be subjected to reassessment.

3) A provision which is retrospective and opens up time barred liability shall be strictly construed.

4) Tax authorities cannot be authorized to commence proceedings which, before new Act, had

become time barred.

5) The provision which creates new obligation or affects existing rights is presumed to be prospective.

6) A change in law which seeks to vary the tax liability and which has been brought after beginning of

assessment year, does not affect the assessment made for that year.

A default or non-filing of Income Tax return which commenced during continuance of old Act, can be

dealt with under provisions of new Act if such default continues at the time of commencement of new

Act. for example non-filing of income-tax return is a continuous default. It continues till the time the

return is filed. The case can be dealt with under a new Act.

In one case of Maya Rani Punj Vs. Commissioner of Income Tax, Delhi (AIR 1986 SC 293) it was

held that a default in filing of return of income is a continuil'lg default till the return is filed. Such a default,

though it commenced when Income Tax Act, 1922 was in force, yet can be dealt with under Income Tax

Act, 1961 jf it continues after commencement of new Act.

g. Penal Statutes creating new offences or increasing penalty for existing are prospective

only: The penalty shall continue to be governed by the old law under which a particular act was

declared to be an offence and punishment for it was prescribed. If the offender is suffering a term 'of

three months for an offence as per existing law and subsequently a new Act is enacted which enhances

the punishment for the same offence to six months, the offender cannot be compelled to serve out

enhanced punishment of six months.

Similarly the penal statutes which create new offences can be prospective only. Creation of new

offences means that a particular act which was not an offence previously, is declared to be an offence

and made punishable. However, such act shall be considered to be an offence only upon effectuation of

the new law and as such penal liability for commission of that act would arise only after the statute is

brought into force. The penal consequences would flow if a person commits the prohibited act after

commencement of law declaring it an offence. But a person who did that act prior to operation of law

forbidding that act cannot be held liable. An act legal at time of doing it, cannot be made unlawful by

some new enactment.

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In Pyare Lal Sharma v. Managing Director, Jammu and Kashmir Industries Ltd. (AIR 1989 SC

1854) the Regulation 16.14 of the J&K Industries Employees Service Rules was in question. This

regulation came to be amended on 20-04-1983. By way of amendment, more grounds for termination of

service of an employee were added. One of the newly inserted grounds was "if he (the employee)

remains on unauthorized absence". Supreme Court observed that it is the basic principle of natural

justice that no one can be penalized on the ground of the conduct which was not penal on the day it was

committed. In view of this it was held that period of unauthorized absence prior to date of amendment

could not be taken into consideration for terminating services of an employee.

Some important considerations for operation of penal statutes :

a. Any provision which increases penalty particularly if coupled with an additional liability to

imprisonment cannot be construed to be retrospective.

b. The penal statute which creates new offences can be prospective only.

c. If subsequent to commission of offence, provision is made by law for imposition of lighter penalty,

offender shall benefit thereby.

d. The procedure prescribed for trial of offence in a new Act may be applied for trial of similar offences

under repealed Act.

h. Statutes prescribing future disqualification on past misconduct are not retrospective: If a

future disqualification under a statute results from a prior misconduct, it does not make the statute

retrospective. No man has a right in his previous crimes and their consequences. Therefore the past

conviction of a person under an earlier statute may be looked into while punishing him from an offence

under new Act. No person is entitled to insist that his previous history should not be considered in a

future legislation. If a statute increased penalty on second conviction of an offence, a conviction before

commencement of statute could be taken into account.

Persons who were convicted or who have a stigma of misconduct on their character under a prior law

may create nuisance for the public at large. In order to protect the public from wrongful activities of these

persons, a statute may be brought. This statue is prohibitory in nature. The object is not to inflict

punishment on such persons but to impose prohibition on their wrongful activities. While proceeding

under such statute, the past conviction or stigma of misconduct of such person may be relied upon,

although that conviction or stigma was under earlier law. Thus, where it was provided that "every person

convicted of a felony shall be forever disqualified for selling spirits by retail", it was held that

disqualification applied to every convicted felon whether he was so convicted prior to or after the Act

came into operation.

i. Remedial Statutes are not necessarily retrospective: A posterior disqualification under a statute

resulting from an anterior misconduct does not make the statute retrospective. Similarly, if a

prospective benefit flowing from a statute depends on earlier facts, it does not mean that the law is

retrospective.

Statutes providing new remedies for enforcement of existing rights will apply to future as well as past

causes of action. The reason is that these statutes are considered to be procedural since they do not

affect existing rights.

The remedial statutes are liberally construed. Therefore, the rule of presumption against

'retrospectively' is not strictly applied to these statutes.

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j. Statutes dealing with appeals are prospective only: An appeal may be defined as a process of

moving a superior court against the order pass 3d by an inferior court. Right to prefer an appeal is

considered to be a substantive right.

It is judicially recognized right vesting in the suitor at the time of institution of original proceedings.

Some statutes or their certain provisions provide for an appeal against the order passed by a court.

Since right to appeal is a vested right, any statute affecting it cannot be retrospectively operated. If after

commencement of original proceedings, the law relating to appeal is amended so as to adversely affect

this vested right to appeal, it is presumed to be prospective only.

The statutory provision dealing with appeal specifies the court before which appeal against the order

passed by a court may be preferred. But if the appellate court, that is the court to which appeal lies does

not exist, the right of appeal also cannot exist.

If the legislature has abolished the appellate court by an enactment and has not provided for any other

court in its place for filing new appeals, then the vested right of appeal is also destroyed. A litigant

cannot' claim that a court before which he would have preferred an appeal when he instituted the suit,

could not have been abolished.

The vested right of appeal at the commencement of original proceeding is limited to the same

proceedings. But this right is not available in the case of a later original proceeding even if the same is

somewhat connected with the original one.

When the repealing Act abolishes the existing courts and provides for new courts, the forum for

pursuing the vested right of appeal must be as provided in .the repealing Act.

k. Pending Proceedings: Alternations in procedure can be applied but alterations affecting

substantive right cannot be applied.

If any alteration as to procedure takes place in the law during pendency of a legal proceeding, then such

alteration may be retrospectively operated. It means that the alteration in procedural part may be

applied to the pending proceedings as well. But where the alterations affect substantive rights of the

parties to suit, they cannot be applied on pending proceedings as well. But where the alterations affect

substantive rights of the parties to suit, they cannot be applied on pending proceedings unless

otherwise is. provided expressly or legislative intent to that effect can be drawn by necessary

implication.

IMPORTANT QUESTIONS

Q.1. Write note on Retrospective Operation of Statutes.

Q.2. Contemporanea exposition will not always be decisive of a question of construction.

Q.3. Write a note on "Construction in bonampartam". ;

Q.4. Name the doctrine of "Generic words must follow the specific words".

Q.5. Name the doctrine, which can notes, "the words must be taken in lawful and rightful sense".

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Q.6. The meaning of the rule of "casus omissus" .

Q.7. Explain the rule, "Expression onionists Exclusion alteries" .

Q 8. What is legal fiction .

Q. 9. Define a consolidating statute .

Q.10. What is a presumption? Mention its significance .

Q.11. Define the expressions "May" and "shall" .

Q.12. When is a legislation said to be commenced?

Q.13. Do you adhere to the views that all statutes in one or the other sense are

"Declaratory statutes"?

Q.15. Name the doctrine which carries the meaning "Generic words must follow more specific words".

Q.16. Expound the principle of interpretation "ut res magis valeat quam perecaf', with the support of

judicial determinations.

Q.17. Explain what is retrospective operation of statutes. Give references to some decided cases?

Q.18. What is "Amending Statute"? Illustrate this with aid of some judicial decisions?

Q.19. What presumption have the courts with regard to jurisdiction?

References:

1. (1964) 5 SCR 975, P-1002

2. AIR 1955 SC 661, P-749

3. (1977) 90 LW 501

4. (2005) 2 SCC 436

5. (1982) 2 SCC 202

6. (2000) 5 SCC 488

7. (2005) 3 SCC 537

8. AIR 1976 SC 1207

9. Casus Omissus - on the relevant page as by index.

10. (1891) AC 531, P-548

11. (2004) 3 SCC 297

12. AIR 1965 SC 871

13. (2006) 3 SCC 266

14. AIR 1980 SC 1553

15. Crawford in Statutory Construction, P. 337

16. Sutherland, Statutory Conostruction, Vol.2

17. (2004) 1 SCC 755

18. State of Uttar Pradesh v. Hindustan Aluminium AIR 1979 SC 1459

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