UNIT - I MEANING OF STATUTE AND INTERPRETATION

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1 trictly for Internal Circulation - KCL MEANING OF TATUTE AND INTERPRETATION UNIT - I 1. What is A tatute: The legislative, as the representative of the people of a nation or the people of a state expresses its will and such expression of the will in accordance with constitutional provisions is a statute. tatute popularly known as Act of parliament. Halsbury's Laws of England - "A tatute is a declaration of the law as it exists or it shall be from the time at which such statute is to take effect." It expresses the collective will of legislature. Allen - "A tatute is the highest constitutional formulation of law, the means by which "Law in the making" the supreme legislative, after the fullest deliberation, expresses its final will." According to Wilberforce: "tatute law may be properly defined as the will of the nation, expressed by the legislature, expounded by courts of justice. The Legislature, as the representative of the nation, expresses the national will by means of statute. Those statutes are expounded by the courts so as to form the body of statute law." 2. In a democracy, there is a legislature which makes laws, an Executive which implements the law and the judiciary which interprets and determines the scope of the laws in the event of a dispute about such scope between one citizen and another, or between a citizen and the government. In a federal polity like India, there are legislatures both at the centre and for each state, and the matters on which each can legislate, i.e. make laws, are set out in a constitution accepted by the people. Generally, the government (Central or tate) in order to combat some evil or make some benefits available to the people, directs the law secretary of the state or at the centre to prepare a set of rules for that purpose. He does so with the aid of the law minister, the chief law officer (either the Attorney General or the Advocate-General in a tate) the department concerned and the law commission. In the case of eaford Court Estates Ltd. vs. Asher (1949)2KB481-Denning LJ remarked "Whenever a statute comes up for consideration, it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and that, even if it were it is not possible to provide for them in terms free from all ambiguity." The rules prepared by the law secretary are suitably modified according to those recommendations of the committee which the Government accepts, and the rules are put in a form called a Bill. The Bill is then 1

2 trictly for Internal Circulation - KCL placed before the legislature. It is there discussed rule by rule, clause by clause and scrutinized carefully by members of the legislative body supporting the Government, and those who are in the position. It is then voted upon with or without modifications. The final result is sent to the President if e legislative is the Central Legislative, i.e., parliament, to the Governor if it is a state Legislative. When e President or Governor signs the Bill, it becomes an enactment or the Law and it is binding on everyone in India. The law is said to have been passed. Ordinarily the date of passing of the law and the date of enforcement may be postponed for the entire enactment or some sections of it, to a data to be notified in the official Gazette. tatute is today the principal source of law. According to Austin, in regard to any law (whether it proceeds from a subordinate, or from a sovereign source) which is made directly, or in the way of proper legislation, the direct and proper purpose of legislation is the establishment of the rule. It is not the instrument or means of deciding a specific case but is intended solely to serve as a rule of conduct, and therefore to guide the courts in their decisions upon classes of cases1 Advantages of tatute Law : 1. Abrogative Power: tatute is not only a source of law, but is equally effective in increasing, amending or annulling the existing law. 2. Efficiency: Legislation allows an advantageous division of Labour by dividing the two functions of making the law and administering it. This results in increased efficiency. 3. Declaration: Justice demands that laws should be known before they are applied and enforced by the Law Court. Law must be known before the case is decided. Legislation satisfies the requirement of natural justice in this respect. 4. Provision for Future Cases: Legislation can make rules in anticipation of cases that have not yet arisen, whereas precedent must wait for the occurrence of some dispute before the court can create any definite rule of law. Legislation can fill up a vacancy or settle a doubt in leg31 system as soon as the defect is brought to the notice of the legislative. This is not possible in the case of precedent. 5. Form: Legislation is superior in form - brief, clear, easily accessible and understandable. According to almond, case law is gold in mine - a few grains of precious metal to the ton of useless matter- while statute law is coin of the realm, ready for immediate use. According to Dicey, the morality of the Courts is higher than the morality of politicians. Legislation is the product of the will of politicians, who are affected by the popular feelings and passions. That is why the Judiciary often denounces statutes as wrong, tyrannical, unjust or contrary to fundamental principles laid down in the written constitution. tatutes may be classified as general, local or public and private. A general statute applies to the whole community, a local is limited in respect of area and personal, limited in respect of individuals. A public statute is one of which judicial notice is taken, while a private statute is required to be pleaded and proved by the party seeking to take the advantage of it. Interpretation is the process by which the court seeks to ascertain the meaning of a particular legislation, what the legislature has actually said and what the legislature intended to have said. In ancient Hindu Law, provision has been made for solving conflicts between sruti and smriti. Jaimini's 2

3 trictly for Internal Circulation - KCL 2 'MIMANA' is the most important collection of rules of interpretation. Certain rules of interpretation from 'Mimansa' are amazingly reminiscent of morden rules of interpretation, for example: Mimansa Modern rule i) arthakya: Every word should have a purposeful meaning. ii) iii) iv) Arthaikatwa: ame words should have the same meaning. Gunapradhana: Reconciliation of all ideas with the principal one. amanjasya: Contradiction should not be presumed and on the contrary reconciliation should be attempted. v) Vikalpa: Choice between two meanings is permitted. vi) Anarthakeya: An interpretation which makes a word or phrase meaningless should be avoided. The principles of interpretation have been enunciated in various shlokas. One such sloka is: "upkarmop sanhard abhyaso uppwwatta fa/am, arlhwadoppatti ch Ungam tatparya nirnaye" "This means that when one has to draw the conclusion from a writing he has to read it from beginning till end, as without doing it, it is difficult to understand the purpose. If there is any repetition or emphasis, its meaning must be understood. If there is any curiosity or a curious problem tackled, it should be noticed and the result thereof must be understood. If there is any innovation or something new, it should be taken note of. Then one must notice the result of such innovation. Then it is necessary to find out what the author 3 intends to convey and in what context." Keeton has observed 4 "The function of the judges in interpreting statutes is two fold. In the first place, they must decide upon the exact meaning of what the legislature has actually said, and, in the second place, they must consider what the legislature intended to have said, or ought to have said, but did not, either because it never visualized such a set of circumstances arising as that before the court, or because of some other reason. 5 Interpretation Distinguished from. Construction: According to Cooley "Interpretation differs from construction. Interpretation is the art of finding out the true sense of any form of words; construction, on the other hand, is the drawing of conclusions respecting subjects that are beyond the direct expression of the text; conclusions which are in the spirit, though not within the letter of the law." Interpretation is the act of making intelligible what was before, not understood, ambiguous, or not obvious. It is the method by which the meaning of the language is ascertained. Construction means to determine from its known elements its true meaning or the interest of its framers and the people who have adopted it; construction of a statute is an effort to draw conclusions. When the court goes beyond the language of the statute and seeks the assistance of extrinsic aids in order 6 to determine whether a given case falls within the statute, it resorts to construction. 7 Construction is the means of interpretation and interpretation is the end. The distinction, however, between the two processes is of no great consequence, as the dominant purpose in each case is to ascertain the intent of the Legislature. In all cases, the object is to see what is the intention 3

4 trictly for Internal Circulation - KCL expressed by the words used.8 According to Eugene Wambaugh9, "ome authors have attempted to introduce a distinction between interpretation' and 'construction'. The distinction, however, has not been accepted by the profession, and the two expressions are in practice, synonymous. The more common term is 'construction'." According to utherland, the distinction is erroneous. By passage of time and in view of the case law evolved, the distinction has been largely relegated to the realm of academic discussion. The words 'interpretation' and 'construction' are used interchangeably. Interpretation according to Legislative Practice: The conventional way of interpreting a statute is to 10 seek the intention of its makers and apply it to the facts of the case at hand. An interpretation of the statutory provision which defeats the intent and purpose for which the statute was 11 enacted should be avoided. 12 In the case of Krishi Utpadan Mandi amiti V. Pillibhit Pantnagar Beej Ltd., inha J. observed that construction of statute will depend upon the purport and object of the statute, and different provisions will have to be interpreted differently. For example, a provision to levy a market to benefit products will have to be interpreted differently from one that mandates obtaining a license in order to regulate trade. It is often contended that if the courts have made a mistake in construing the legislative intention, the legislative can always amend the law to clarify matters. In our country law is not so advanced as in UK and UA, and the legislative is not yet keeping a vigilant standing committee to watch all judicial decisions and bring about amendments of the law at once where the decisions given are contrary to the intention of the legislature. In the end, we can say that the. Interpretation may be defined as process of reducing the statute applicable to a single sensible meaning - "the making of a choice from several possible meanings". AID OF INTERPRETATION INTERNAL & EXTERNAL Internal Aids: The intrinsic or internal aids in the construction of statutes are derived from context, preamble, headings, title, marginal notes etc. 1. Context 2. Preamble 3. Title 4. Headings 5. Marginal notes 6. Punctuation marks 7. Illustrations 8. Definitions 4

5 trictly for Internal Circulation - KCL 9. Interpretation clause 10. Proviso 11. Exception & aving Clauses 12. Explanation 13. chedule 14. Fictions 15. Conjunctive and Disjunctive words, 16. Include 17. Enabling and Disabling tatutes 18. Non-obstante clause 19. ubsection 20. Modification of the language to meet the Intention. 1. Context: It is one of the cardinalt5nnciples of the interpretation of statute that, where the language is plain and unambiguous, and admits of but one meaning, the courts must give effect to it according to its plain meaning. It is well-settled that the meaning of the words used in any portion of the statute must depend upon the context in which they are placed. In interpreting an enactment, all its parts must be construed together as forming one whole and it is not in accordance with sound principles of construction to consider one section, or group of sections, divorced from the rest of the statute. The words may be given a wider or more restricted meaning than they ordinarily bear, if the context 13 requires it, widest possible interpretation unless context otherwise directs; (occupant includes a muafidar). In construing a particular section of an Act, one must look at the whole Act, and it is necessary to consider the context in which such section occurs, as far as possible, to make a consistent enactment of 14 the whole statute. General words of a particular provision of a statute may be given a restrictive meaning if the context requires it. By 'Context' is meant not only the textual context arising out of the other provisions of statute, 15 but also factual context including the mischief to be remedied, and the circumstances under which the statute was passed. Context refers to the statute as a whole, the previous state of law, other statutes in pari materia, the general scope of the statute and the mischief that it was intended to remedy. But for such restriction, a compelling reason must be found. It is no sound principle of construction to interpret expressions used in one Act with reference to their use in another Act. The meaning of words and expressions used in an 16 Act must take their colour from the context in which they appear. The ordinary rule of grammar cannot be treated as an invariable rule which must be accepted in every case without regard to the context. If the context definitely suggests that the relevant rule of grammar is inapplicable, then the requirement of the context must prevail over the rule of grammar. 5

6 trictly for Internal Circulation - KCL It is well settled that the language of a statute constitutes the depository or reservoir of the legislative intent, and in order to grasp its true meaning it is necessary to consider a sentence in its entirety. 17 The general rule of construction is not to look at the words but to look at the context. Every clause of a statute should be constructed with reference to the context, and the a her clauses of the Act, to make a consistent enactment of the whole statute. The ultimate result must be determined. Every statute must be construed "ex visceribus actus" within four comers of e Act. When construing the terms of any provision found in a statute, the court is bound to consider other parts of the statute which throw light on the intention of the legislature. No part of a statute should be construed in isolation, for the intention of the law - maker is to be found not in one part of the statute or another, but in the entire enactment and that intention can best be gathered by viewing a particular part of the statute not detached from its context in the statute but in connection with its whole context. The ordinary rule of construction is to assign the word a meaning which it ordinarily carries. The subject of legislation and the context in which a word or expression is employed may require a departure from 18 the rule or literal construction. Words do not always retain their abstract or primary definitions and their meaning varies in accordance with the contextual use. It is often the secondary meaning which acquires more extensive recognition and receives ready comprehension. Normally, the words used in a statute have to be construed in their ordinary meaning, but in many cases, Judicial approach finds that the simple device of adopting the ordinary meaning of words does not meet the ends of a fair and reasonable construction. Exclusive reliance on the bare dictionary meaning of words may not necessarily assist a proper construction of the statutory provision. In interpreting statutory provisions, it becomes necessary to have regard to the subject - matter of the statute and the object which it is intend to achieve. That is why in deciding the true scope and effect of the relevant words in any statutory provisions, the context in which the words occur, the object of the statute in which the provision is included, and the policy underlying the statute assumes relevance and becomes material. Halsbury has observed, the words "should be construed in the light of their context rather than what may be either their strict etymological sense or their popular meaning apart from the context." 2. Preamble: The preamble of a statute is a prefactory statement at its beginning, following the title and preceding the enacting clause, explaining or declaring the policy and purpose, the reasons and motives for, and the objects sought to be accomplished by the enactment of the statute. Although the enacting words of a statute are not necessarily to be limited or controlled by the words of the preamble but in many instances go beyond it, yet, on a sound construction of every Act of parliament, the words in the enacting part must be confined to that which was the plain object and general intention of the legislature in passing the Act, and the preamble affords a good clue for discovering what that object was. The object and purpose of a preamble to a statute is well settled. A preamble is a key to open the mind of the legislature but it cannot be used to control or qualify precise and unambiguous language of the 6

7 trictly for Internal Circulation - KCL enactment. It is only when there is a doubt as to the meaning of a provision that recourse may be had to the preamble to ascertain the reasons for the enactment and hence, the intention of Parliament. If the language of the enactment is capable of more than one meaning then that one is to be preferred which comes nearest to the purpose and scope of the preamble. Preamble may assist in ascertaining the meaning but it does not affect clear words in a statute. A preamble though a key to open the mind of the legislature, cannot be used to control or qualify the precise and unambiguous language of the enactment. It is only in case of doubt or ambiguity that recourse may be had to the preamble to ascertain the reason for the enactment in order to discover the 19 true legislative intendment. The significance of the preamble in gathering the legislative intent was stated in Arnit Das V. tate of.20 Bihar "The preamble suggests what the Act was intendent to deal with. If the language used by parliament is ambiguous the court is permitted to look into the preamble for construing the provisions of an Act. The Preamble is a key to unlock the legislative intent. If the words employed in an enactment may spell a doubt as to their meaning it would be useful to so interpret the enactment as to harmonise it with the object which the legislature had in its view." 21 In the case of West Bengal vs. Anwar Ali ankar, it was contendent that ec.5 of the West Bengal pecial Courts Act, 1950, was unconstitutional and void as it contravened Art. 14 of the constitution. That section provided that a special court shall try such offences or class of offences, or cases or classes of cases, as the state Government may direct. It was contended on behalf of the state that the preamble should be read as part of the section, (The Preamble read, 'whereas it is expedient to provide for the speedier trial of certain offences') and that the proper interpretation to be put upon the section was that only those cases and offences which in the opinion of the tate Government required speedier trial could be assigned to the special court and hence there was no scope for any discrimination. It was held: "The express provision of an enactment, if it is clear and unambiguous, cannot be curtailed or extended with the aid of the preamble to the Act. It is only when the object or meaning of the enactment is not clear that recourse can be had to the preamble to explain it. In this case, the language of ec. 5(1) is perfectly clear and free from any ambiguity. It vests an unrestricted discretion in the state Government to direct any cases to be tried by the special court. 3. Title: trictly speaking, a title is not a part of an enactment. It cannot legitimately be used to restrict the plain terms of an enactment. All the same, titles have often afforded additional evidence in support of a theory of interpretation. In some cases title may supply key to the meaning with the exception of private and local laws. Title does not play any significant part in the interpretative process and may not be looked at to modify the interpretation of plain language. The title does not even receive the same attention of the legislators as does the main body of the Act, and therefore it may not disclose the legislative intent with exactitude. In private and local laws, however, the title is of greater value as an aid in construction, as a result of the constitutional requirement that the subject of such laws must find expression in the titles. It is permissible to use the long or full title of an Act to throw light on a doubtful meaning, no weight should be attached to the short title. It is only a 'tatutory nickname' to obviate the necessity of always referring to the Act under its full and descriptive title, and nowadays in every statute, there is a section 7

8 trictly for Internal Circulation - KCL 22 containing the short title by which the statute may be cited. 4. Headings: Where the language of the section of an Act is plain, it is not necessary to have recourse to the general heading under which the section comes. The head notes and sections cannot cut down the express meanings of the words occurring in the section. The headings of different portions of a statute can be referred to determine the sense of any doubtful expression in a section ranged under any particular heading. To control the plain meaning of the words of the enactment though they may, in some cases, be looked at in the light of preambles if there is any ambiguity in the meaning of the sections on which they can throw light. The headings prefixed to a section or sets of sections in some modern statutes are regarded as preamble to those sections. They cannot control the plain words of statutes, but they may explain ambiguous words. If there is any doubt in the interpretation of the words of section, the headings 23 certainly help the court to resolve that doubt. It is permissible to assign the heading or title of a section a limited role to play in the construction of statutes. They may be taken as very broad and general indicators of the nature of the subject - matter dealt with thereunder. The heading or title may also be taken as a condensed name assigned to indicate collectively the characteristics of the subject - matter dealt with by the' enactment underneath, though the name would always be brief having its own limitations. In case of conflict between the plain language of the provision and the meaning of the Heading or Title, the Heading or Title would not control 24 the meaning which is clearly and plainly discernible from the language of the provision thereunder. 25 In the case of Union of India V. Raman Iron Foundary, it was held that a heading cannot control the interpretation of a clause if its meaning is otherwise plain and unambiguous, but it can certainly be referred to as indicating the general drift of the clause and affording a key to a better understanding of its meaning. 5. Marginal Notes: Marginal notes of the sections are not to be referred to for the purpose of construction; unless they have been inserted with the assent of the legislature. The marginal heading to the section cannot control the interpretation of the words of the section particularly, where the meaning of the section is clear and unambiguous. But where the section is unambiguous the marginal note may not be used as aid to its interpretation. If there is any ambiguity in the meaning of the provisions in the body of the statute, the marginal note 26 may be looked into as an aid to construction. In the case of Indian constitution, the marginal notes were enacted by the Constituent Assembly and hence they may be referred to for interpreting Articles of the constitution. 27 In tate of Bombay V. Bombay Education ociety, it was contended that Art-29(2) did not confer any fundamental right on all citizens generally but guaranteed the rights of citizens of minority groups by referring to the marginal note to Art.19 which states : "Protection of interests of minorities". This contention was rejected by the upreme Court and it was held that Article 29(2) applies to all citizens. 28 In I.C. Golaknath V. tate of Punjab Justice ubba Rao relied on the marginal note to Art. 368 and held that it only prescribes the procedure to amend the constitution. 8

9 trictly for Internal Circulation - KCL In one case privy council has ruled that the marginal notes to the sections of an enactment cannot be referred to for the purpose of construing the Act. There is no justification for restricting the contents of a section by its marginal notes. They are not part of the Act. A marginal note is merely an abstract of the clause intended to catch the eye. Although a marginal not cannot control the clear language of the section, or overside the provisions of the enactment, the court can consider it for the purpose of arriving at a conclusion as to what according to the legislature was the purpose of enacting the section. The marginal note cannot, however, affect, the construction of the language used in the body of the section if it is otherwise clear and unambiguous. 6. Punctuation Marks: Punctuation marks cannot control, vary or modify the plain and simple meaning of the language of the statute. At the most they can aid in the construction of ambiguous statutes. uch assistance is also subject to the condition that the punctuation marks have been inserted with accuracy and they were present at their places at the time of enactment. Punctuation of law, generally speaking, does not control or affect the intention of the legislature in its enactment. The intention is generally gathered from the context to which the words relate. Even where punctuations sometimes lend assistance in the construction of sentences, they are always subordinate to the requirement of the context. When a statute is carefully punctuated and there is doubt about its meaning, weight should undoubtedly 29 be given to the punctuation. The punctuation may have its uses in some cases, but it cannot certainly be regarded as a controlling element and cannot be allowed to control the plain meaning of the text.. 30 In Maharaja of Burdwan V. Murtunjoy ingh, it was observed by privy council that it was an error to rely on punctuation in construing the Act of the legislature. In Ashwini Kumar V. Arbinda Bose31 their Lordships of the upreme Court have held that punctuation is after all a minor element in the construction of statute and very little attention is paid to it by English courts. When a statute is carefully punctuated and there is doubt about its meaning, weight should undoubtedly be given to the punctuation. Punctuation may have its uses in some cases but it cannot certainly be regarded as a controlling element and cannot be allowed to control the plain meaning of text. In conclusion, we can say that a. Punctuation is not a part of the statute, but where it is clear that the punctuation is correctly placed, there is no reason why the punctuation should not be considered as a proper guide for understanding the sense of the section. b. In construing a statute the court should first read it without the punctuation. c. If the section as punctuated leads to a conflict the punctuation must be ignored. 32 In Gopalan V. tate of Madras, the provisions of the Preventive Detention Act were challenged on the ground that they contravened Art.22 of the constitution. ec. 12 of the impugned Act was challenged on the 9

10 trictly for Internal Circulation - KCL ground that it did not conform to the provisions of Art. 22(7). It was argued that the Art. permits preventive detention beyond three months, when parliament prescribes the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than 3 months and that both these conditions had to be fulfilled. It was held that the use of the word 'which' twice in the first part of the sub-clause, read with the comma put after each, shows that the legislative wanted them to be read as disjunctive and not conjunctive. The legislature intended that the power of preventive detention beyond 3 months may be exercised either if the circumstances in which or the class or classes in which, a person is suspected to be doing the objectionable things mentioned in the section. 7. Illustrations: Illustrations in enactments provided by the legislature are valuable aid~ in understanding the real scope of the text thereof. They are part of the statute. The illustrations, however, make nothing law, which would not be law without them. They only exhibit the law in full action. An illustration does not exhaust the full content of the section which it illustrates and equally it can neither curtail nor expand its ambit. If the text is clear and an illustration is beyond it, the illustration cannot be taken as extending or limiting the scope of the text. But in all other cases the illustration shall be taken as explanatory of the section. The illustrations merely exemplify the application of the rule contained in the section and do not control the meaning of the section itself, they are not to be regarded as exhaustive, but are only intended as a guide to the working and application of the section. It is always open to a court to go back to the main section and consider whether the section as it stands, is applicable to any given set of facts as to enable the court to draw inference from these facts; they do not restrict presumptions regarding the existence of facts into the acts covered by the illustrations. Illustrations are deliberately introduced in certain enactments by the legislature to guide the courts in interpreting the words of the statute and they are almost on the same level as the words of the statute. It is impossible to imagine that a statute can be interpreted in conflict with the illustration given in the statute itself. An illustration does not limit the generality of the section to which it is appended. It dose not exhaust the full content of the section. It only examplifies the section and cannot be taken to enlarge, restrict or modify the section. 33 hambhu Nath V. tate of Ajmer, in this case the appellant was convicted of the offence of cheating and under the Prevention of Corruption Act, 1947, clause 7 -A in that he did not either make a particular Journey or pay the claim for fare. On appeal to the upreme Court it was contended by the respondent that under ec.106 of the Evidence Act and illustration (b) to the section, the facts were especially within the knowledge of the accused and that the burden lay on him to prove that he had made the journey and paid the fare. Rejecting the contention and allowing the appeal, the court held: "We recognise that the illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit. The great usefulness of the illustrations, which have, although not part of the sections, been expressly 10

11 trictly for Internal Circulation - KCL furnished by the legislature as helpful in the working and application of the statute, should not be thus impaired. 8. Definitions: The definition must ordinarily determine the application of the word or phrase defined, but the definition must itself be interpreted first before it is applied. When the definition of a word gives it an extended meaning, the word is not to be interpreted by its extended meaning every time it is used for the meaning ultimately depends on the context, and a definition clause does not ordinarily enlarge the scope of an Act. A court should not lay down a rigid definition and crystallize the law, when the legislature in its wisdom has not done so. It is ordinarily unsafe to seek the meaning of words used in an Act, in the definition clause of other statutes even when enacted by the same legislature. Definitions in an Act are to be applied only when there is nothing repugnant in the subject or context, and this is so even if such a qualifying provision is not expressly stated by the legislature. Where the definition of a word has been given it must be construed in its popular sense if it is a word of every day use. Popular sense means that sense which people conversant with the subject matter with which the statute is dealing, would attribute to it. It is a principle of interpretation of statutes that even a definition clause is always subject to the context in which the word is used. If the context so requires, a word or expression may be given a meaning not covered by the definition clause. Where in a definition section of a statute a word is defined to mean a certain thing, whenever that word is used in that statute, it shall mean what is stated in the definition unless the context otherwise requires. But where the definition is an inclusive definition, the word not only bear its ordinary, popular and natural sense whenever that would be applicable but it also bears its extended statutory meaning. If the statute is with reference to a particular trade, business or transaction, then the words used there which every body conversant with that trade, business or transaction knows and understands to have a particular meaning of it, then those words should be construed as having that particular meaning of it, then those words should be construed as having that particular meaning which may differ from the ordinary or popular meaning. The same expression may be used in different places in a statute. Generally, they bear the same meaning depending on the context. Particular expression has to be interpreted in the light of the section itself and the Act as a whole. If a special definition of a word or phrase is set out in an Act, the meaning of this word or phrase as given in such definition should normally be adopted in the interpretation of the statute. In the absence of such a definition, General Clauses Act of the particular legislature which enacted the statute should be referred to. If the word is not defined there also, the rules of interpretation would come into play. 34 In Indira Nehru Gandhi V. Raj Narain, Khanna J., observed: "A definition clause in a statute is a legislative device with a view to avoid making different provisions of the statute cumbersome. Where a 11

12 trictly for Internal Circulation - KCL word is defined in the statute and that word is used in a provision to which that definition is applicable, the effect is that whereever the word defined is used in a provision to which that definition is applicable, the definition of the word gets substituted. Where, however, the definition is preceded by the words "unless the context otherwise requires", the connotation is that normally it is the definition given in the section which should be applied and given effect to. This normal rule may, however, be departed from, if there be something in the context to show that the definition should not be applied. 35 In tate of Bombay V. Hospital Mazdoor abha, the question was whether the JJ group of Hospitals was an 'industry' within the meaning of the Industrial Disputes Act The upreme Court held that it was an industry and in doing so observed : "ection 2(i) does not define "industry" in the usual manner by prescribing what it means; the first clause of e definition gives the statutory meaning of 'industry' and the second clause deliberately ra ers to several other items of industry and brings in the definition in an inclusive way. It is obvious that the words used in an inclusive definition denote extension and cannot be treated as restricted in any sense. Where we are dealing with an inclusive definition it would be inappropriate to put a restrictive interpretation upon terms of wider denotation." 9. Proviso: The main function of a proviso is to take out of a section a part of the category to which the section applies. It must be construed harmoniously with the main enactment. A proviso to a section in a statute is not an independent section calling for a construction entirely removed and detached from the construction to be placed on the main section. A proviso is subsidiary to the main section and has to be construed in the light of the section itself. A proviso merely carves out something from the section itself, a proviso never destroys the section as a whole. The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out, as it were, from the main enactment a portion which, but for the proviso, would fall within the mf.lin enactment. In construing a section full and natural meaning should be given to a proviso, if any. The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language, the main enactment and its effect is confined to that case. The section must be construed as a whole, each portion throwing light on the rest. A proviso should never be construed in a manner which would nullify the effect of the main section to which it is merely a proviso. In construing a proviso one has to harmoniously construe the proviso with the main section and to see that the proviso does not cut down the obligations cast by the section itself. In Mohan Kumar inghania V. UOI (1992 PP (1) see 594), the expression "provided further" spells out that the first proviso cannot be read in isolation or independent for the second proviso but it must be read in conjunction with the second proviso. In. undaram Pillai Vs. v.r. Pallabiraman ((1985) 1 see 591), it was held: "A proviso may serve four different purposes : a) it may qualify or except certain.provisions from the main enactment, b) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable. 12

13 trictly for Internal Circulation - KCL c) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself, and d) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision" 10. Exception and aving Clauses : A saving clause or exception being a later passage in an enactment prevails over the substantive portion it follows. Exception exempts something which would otherwise fall within the purview of the general words of a statute. The substantial distinction between a proviso and an exception is that the former follows an enacting clause, and qualifies it in certain specified cases, while the latter is part of the enacting clause, 36 and is of general application. Exception exempts something which would otherwise fall within the general words of the statute. A proviso, on the other hand is a clause added to an enactment for the purpose of acting as restraint upon, 37 or as a qualification of the generality of the language which it follows. The practical effect of the distinction is that plaintiff or prosecutor must prove that the particular case was not within the exception, whereas a proviso is a matter for the defence. Exceptions must be construed strictly and strongly against the party trying to take the benefit. The 38 mention of certain exceptions to the general rule implies that no other exceptions were cqntemplated. aving clauses are generally inserted where a statute is repealed and re-enacted. The effect is that the repealed statute remains in force as regards the rights the party previously had; but it does not create new rights in its favour. A saving clause is generally introduced into the repealing Act, in order to safeguard rights which, but for such saving, would be lost. A saving clause which is repugnant to the body of the Act is void. A saving clause would not give any further right that a party already had. 11. Explanation: The object of an explanation is to understand the Act in the light of the explanation. It does not ordinarily enlarge the scope of the original section which it explains, but only makes the meaning clear beyond dispute. In. undaram Pillai Vs. V. R. Pattaliraman39, The upreme Court explained the objects of an Explanation Provision as follows : a. to explain the meaning and intendment of the Act itself; b. where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve; c. to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful; d. an Explanation cannot in any way interfere with or change the enactment or any part thereof but 13

14 trictly for Internal Circulation - KCL where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the court in interpreting the true purport and intendment of the enactment; and it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming a hindrance in the interpretation of the same. Explanation to a section is not a substantives provision by itself. It is entitled to explain the meaning of the 40 words contained in the section to clarify certain ambiguities or clear them Up. It becomes a part and parcel of the enactment. Its meaning must depend upon its terms. ometimes it would be added to include something within it or to exclude from the ambit of the main provision or some condition or words occurring in it. Therefore, the explanation normally should be so read as to harmonise with and to clean up any ambiguity in the same section. An 'Explanation', generally speaking, is intended to explain the meaning of certain phrases and expressions contained in a statutory provision. There is no general theory as to the effect and intendment of an explanation except that the purpose and intendment of the 'Explanation' are determined by its own words. An explanation, depending on its language, might supply or take away something from the contents of a provision. Merely because a particular provision in a tatute is labeled as an Explanation it does not mean that it is inserted merely with a- view to explain the meaning of words contained in the section of which it forms a part. The true scope and effect of an explanation can only be Judged by its express language and not merely by the lable given to it. The language of an explanation may show that it intends to create a legal 41 fiction. An explanation should be read with a view to harmonise and clear up the ambiguity in the main provisions of the section. The explanation should be interpreted according to its own terms having regard to its' context and not so as to widen the ambit of the section. Where two interpretations are sought to be put upon a provision that which fits the description which the legislature has chosen to apply to it, according to sound canons of constructions, to be adopted provided it is consistent with the language employed in preference to the one which attributes to the provision a different effect from what it should have according to its 42 description by the legislature. Explanation is merely meant to explain or clarify certain ambiguities which may have crept in a statutory provision. In DG. Mahajan V. tate of Maharashtra (AIR 1977 C 915) it was stated that it is well settled that an explanation added to a statutory provision is not a substantive provision but has the plain meaning of the word and itself shows that it is merely meant to explain or clarify certain ambiguities which may have crept in a statutory provision. But it is the intention of the legislature which is paramount and the court can look into the purpose for which the Explanation was added to the section. 12. chedule: chedules form part of the statute. They are catalogued towards the end and contain minute details for working out the provisions of the Act. The expressions in the schedule cannot override the provisions of the express enactment. Where the enacting part and the schedule cannot be made to correspond, the latter must yield to the former. The code of civil procedure (V of 1908) consists of two parts, the first containing section called the body of the code and the second containing orders in the schedule, called the rules. The body of the code contains provisions of a substantive nature and lays down the general principles and creates 14

15 trictly for Internal Circulation - KCL jurisdiction, while the Orders contained in the schedule relate to procedure and indicate the mode in which jurisdiction created by the body of the code has to be exercised. The body of the code is fundamental and being expressed in general terms has to be read in conjunction with the rules prescribing the details. To ascertain the jurisdiction of the court in a particular manner not only the code but also the rules which may have set limits to the exercise of it have to be looked. The sections lay down the general principles, while the rules provide the means by which they can be applied. If, however, the rules are inconsistent with the body are inconsistent with the body of the code, the latter would prevail. The schedule may be used in construing provisions in the body of the Act. It is as much an act of legislature as the Act itself and it must be read together with the Act for all purposes of construction. Expressions in the schedule cannot control or prevail against the express enactment and in case of any inconsistency between the schedule and the enactment, the enactment is to prevail and if any part of the schedule cannot be made to correspond it must yield to the Act. The basic principle is that in case of a conflict between the body of the Act and the schedule, the former prevails. The forms in the schedule being intended to suit the generality of cases rather than all cases should not be regarded as a guide to the meaning of a statute. They should yield to the clear provision of an enactment. Where however, the enactment is ambiguous, a schedule form may be of assistance in interpreting its meaning. 43 In Aphali Pharmaceuticals Ltd. V. tate of Maharashtra, it was helds: "A chedule in an Act of Parliament is a mere question of drafting. The schedule may be used in construing provisions in the body of the Act. It is as much an act of legislature as the Act itself and it must be read together with the Act for all purposes of construction. Expressions in the schedule cannot control or prevail against the express enactment and in care of any inconsistency between the schedule and the enactment the enactment is to prevail and if any part of the schedule cannot be made to correspond must yield to the Act. It is the legislative intent that is material" 13. Fictions: A fiction is a legal assumption that the thing is true which is either not true or which is probably as false as true. The effect of a deeming clause is that when legislature introduces a statutory fiction and courts have to proceed on the assumption that such state of affairs exists on the relevant date. When a person is 'deemed to be' something the only meaning possible is that whereas he is not in reality that something the Act of parliament requires him to be treated as if he were. 44 In Avtar ingh V. tate of Punjab, it was held: "If a provision says that something which is not an offence within the meaning of another statute is to be deemed to be such, the offence is created by the statute which raises the fiction and not by the statute within which it is to be deemed by that fiction to be included. It was held in so many cases by supreme court that legal fictions are created only for a definite purpose and should not be extended beyond the legitimate field. It is well settled that a deeming provision is an admission of the non-existence of the fact deemed. The legislature is competent to enact a deeming provision for the purpose of assuming the existence of a fact which does not even exist. It means that 15

16 trictly for Internal Circulation - KCL the courts must assume that such a state of affairs exists as real, and should imagine as real and consequences and incidents which inevitably flow therefrom, and give effect to the same. The deeming provision may be intended to enlarge the meaning of a particular word or to include matters which otherwise mayor may not fall within the main provision. The legal fiction created under para 6(2) of the X (Tenth) chedule to the constitution was interpreted by 45 the upreme Court in Kihoto Hollohon V. Zachillhu. ub-para (2) of para 6 of the Tenth chedule deems the proceedings that must be followed so as to arrive at decision 0 disqualification under para 6(1) as proceedings in Parliament within the meaning of Art 122 or, as the case may be, proceedings in the legislature of a state within the meaning of Art The deeming provision implies that the proceedings of disqualification are, in fact, not before the House, but only before the speaker as a specially designated authority, the decision under the House, nor is it subject to the approval by the House. The decision operates independently of the House. A deeming provision cannot by its creation transcend its own power. There is therefore, no immunity under Articles 122 and 212 from judicial scrutiny of the decision of the speaker or chairman exercising power under paragraph 6(1) of the Tenth chedule. 14. Interpretation Clause: The interpretation clause and definitions do not take away the ordinary and natural meaning of words, but are used: (1) to extend the meaning of a word to include or coversomething, which would not normally be covered or included, and (ii) to interpret ambiguous words which are not plain or clear. The legislature can lay down legal definitions of its own language. If such definition is embodied in the statute itself, it becomes binding on the courts. When the Act itself provides a dictionary for the words used, the court must look Into that dictionary first for an interpretation of the words used in the statute. Where a term is defined in the enactment, the court has to look into' the definition and not to its ordinary meaning.. An interpretation clause may use the verb 'includes' or 'means' or 'means and includes', or denotes or 'deemed to be'. The-word 'means' or 'means and includes' are used it affords an exhaustive explanation of the meaning which, for the purposes of the Act, must inevitably be attached to those words or expressions. 15. Conjunctive and Disjunctive words: The word 'and' used in a statute may be read 'or' and vice versa, if such alteration is necessary to give effect to the intention of the legislature. In criminal or penallegislation, however, conjunctive words should never be construed as disjunctive and vice versa, if the effect would aggravate the offence or increase the punishment. It has to be assumed that the le3islature has chosen the correct words to express its purposes. Hence, the literal meaning of the expressions should be accepted unless the context points to some other interpretation. It is legitimate to read the conjunctive and disjunctive words 'and' and 'or' one for the other literal interpretation would defeat the intention of the legislature or the object of the Act. The word "or" and the word "and" are often used interchangeably. As a result of this common and careless case of the two words in legislation, there are occasions when the court, through construction, may change one to the other. This cannot be done if the statute meaning is clear or if the alteration 16