Beruflich Dokumente
Kultur Dokumente
com
183rd Report
on
LatestLaws.com
2
November, 2002
D.O.No.6(3)(79)/2002-LC(LS)
8.11.2002
With regards,
LatestLaws.com
3
Yours sincerely,
LatestLaws.com
4
CONTENTS
Sl.No
CONTENTS
PAGE Nos.
1.
1 - 37
LatestLaws.com
5
especially regarding tools relating to external aids.
Some decisions of
Apex Court have also been cited in support of this observation. We will
discuss some of these decisions in this report.
The reference also states that the 60th Report was submitted in
1974 and since then, many new statues have come into force and some
of the canons of interpretation on the use of extrinsic aid have also
undergone changes.
now implemented, then there may be criticism that the said Report has
lost its relevance because of a long gap. We may, however, state that the
question of external aids was specifically dealt with in Chapter II of the
60th report.
It has also been felt that our courts have not been following
uniform approach to principles of statutory construction especially
regarding tools relating to external aids.
At the same time our courts have often been referring to text
books, decision of the foreign courts rather than the judgement of
our Supreme Court.
LatestLaws.com
6
considered whether there should be independent legislation or
provisions which may be part of the General Clauses Act, clearly
providing whether extrinsic aids or other aids may be admitted for
construction of a statute.
Further, the Law Commission Report was given way back in 1974
on a reference made in 1959. Since then, many new statues have
come into force bringing to the fore issues such as information
technology, in the light of which even the Evidence Act has been
amended. Further some of the rules of interpretation on the use of
extrinsic aids such as parliamentary debates, preparatory works,
reports of the Law Commission of India and Parliamentary reports
have undergone changes.
LatestLaws.com
7
various grounds.
B)
(Law Commission
aspect carries the concept of meaning, i.e., what the word means and
another aspect conveys the concept of purpose and object or the
reason or spirit pervading through the statute.
The process of
LatestLaws.com
8
the language of a statutory provision is ambiguous, not clear or where
two views are possible or where the provision gives a different meaning
defeating the object of the statute.
Where the words are clear and there is no obscurity, and there is
no ambiguity and the intention of the legislature is clearly
conveyed, there is no scope for court to take upon itself the task of
amending or altering the statutory provisions. (para 10)
It
LatestLaws.com
9
committee or a commission, official statement, dictionary meanings,
foreign decisions, etc.
O.Chennappa Reddy J. in B.
Prabhakar Rao and others v State of A.P. and others , AIR 1986 SC 120
has observed :
Recently, in District Mining Officer and others v Tata Iron & Steel
Co. and another , (2001) 7 SCC 358, Supreme Court has observed:
that
interpretation
of
statute
being
an
exercise
in
the
LatestLaws.com
10
Following are some known external aids, which are admissible for
the interpretation of statutory provisions:
(1)
Parliamentary material
(a) Debates
Courts often take recourse to parliamentary material like debates
subject
to
parliamentary
privilege,
under
following
Crawford
on
Statutory
Construction
(page
383)
in
which
LatestLaws.com
11
Krishna Iyer J. has observed in this case:There is a strong case for whittling down the Rule of Exclusion
followed in the British courts and for less apologetic reference to
legislative proceedings and like materials to read the meaning of
the words of a statute. (para 5)
11
LatestLaws.com
12
which they intended to achieve when they enacted cls (4) and (7)
in their present form. (para 45)
1995 SC 1012).
Minister may be referred to for the purpose of finding out the object
intended to be achieved by the Bill (see K.S. Paripoornans case ( supra).
J. S. Verma J (as he then was)
(1995) 7 SCALE 1 made extensive reference to the speech of the then Law
Minister Shri A.K. Sen for construing the word his occurring in subsection (3) of section 123 of the Representation of People Act 1951.
12
LatestLaws.com
13
Similarly, Supreme Court in P.V. Narsimha Rao v State, AIR 1998 SC
2120 agreeing with the view taken in Pepper v Hart (Supra) has observed:
It would thus be seen that as per the decisions of this Court, the
statement of the Minister who had moved the Bill in Parliament
can be looked at to ascertain mischief sought to be remedied by
the legislation and the object and purpose for which the legislation
is enacted. The statement of the Minister who had moved the Bill
in Parliament is not taken into account for the purpose of
interpreting the provision of the enactment. (Para 77).
The Supreme Court in Sushila Rani v CIT and another, (2002) 2 SCC 697
referred to the speech of the Minister to find out the object of Kar Vivad
Samadhan Scheme 1998.
LatestLaws.com
14
refused to take recourse to the Report of the special Committee which
had been appointed by the Government of India to examine the provision
of the Partnership Bill for construing the provisions of the Partnership
Act, 1932 in CIT, A.P. v Jaylakshmi Rice and Oil Mills Contractor Co.,
AIR 1971 SC 1015, yet in another case Haldiram Bhujiawala and another
v Anand Kumar Deepak Kumar and another, (2000) 3 SCC 250, the
Supreme Court took recourse to the very same report of the Special
Committee (1930-31) for construing the provisions of section 69 of the
Partnership Act, 1932. The Supreme Court in the above case held that
decision in CIT v. Jaylakshmi Rice & Oil Mills (supra) in this respect is
no longer good law. Law Commissions Reports can also be referred to
where
particular
enactment
or
amendment
is
the
result
of
(2)
The General
Clauses Act, 1897 is an example of statutory aid. Apart from this, Court
can take recourse to other statutes which are in pari mataria i.e. statute
dealing with the same subject matter or forming part of the same system.
Supreme Court in Common Cause, A Registered Society v Union of India,
AIR 1996 SC 3081, took recourse to section 13A and 139 (4B) of the
14
LatestLaws.com
15
Income Tax Act 1961 for the purpose of interpretation of Explanation I to
section 77 (1) of the Representation of the People Act, 1951.
(3)
LatestLaws.com
16
conformity with the constitutional scheme should be accorded legal
sanction by permissible constitutional
interpretation.
(see Supreme
(4)
Dictionaries
However, in the
(5)
Foreign Decisions
LatestLaws.com
17
Convention is involved, it is obviously desirable that decisions in different
jurisdictions across the world should so far as possible be kept in line
with each other.
(6)
Apart from the various external aids discussed above, courts while
interpreting a statutory provision, can take into account relevant
historical facts or history of enactment in order to understand the
subject matter of statute. Court can also have regard to the surrounding
circumstances which existed at the time of passing of the statute. But,
like any other external aid, the inference from historical facts and
surrounding circumstances must give way to the clear language
employed in the enactment itself.
But this
LatestLaws.com
18
Recently, Supreme Court while dealing with the Dental Act, 1948
in Dental Council of India v Hariprakash, (2001) 8 SCC 61 has observed:
taken into
(7)
aware of all these developments and inventions, when the law was made.
Therefore, courts take into account all these development while
construing statutory provisions. In this regard, Bhagwati J. (as he then
was) in S.P. Gupta v Union of India, AIR 1982 SC 149 has stated:
LatestLaws.com
19
adjustments through judicial interpretation so as to accord with
the requirement of the fast changing society which is undergoing
rapid social and economic transformation
law does not operate in a vacuum.
It is elementary that
Again, in S.P. Jain v Krishan Mohan Gupta and others, AIR 1987
SC 222, the Supreme Court has held:
We are of the opinion that law should take pragmatic view of the
matter and respond to the purpose for which it was made and also
take cognizance of the current capabilities of technology and life
style of community. (para 18)
19
LatestLaws.com
20
words used to take in new facts and situations, if the words are capable
of comprehending them.
International Conventions
Apart from these external aids, court also take recourse to other
material.
with the fundamental rights and in harmony with its spirit must
be read into those provisions to enlarge the meaning and content
thereof, to promote the object of the Constitutional guarantee.
(para 7)
Other materials
20
LatestLaws.com
21
Similarly, Supreme Court used information available on internet
for the purpose of interpretation of statutory provision in Ramlal v State
of Rajasthan, (2001) 1 SCC 175.
materials from text books and articles and papers published in the
journals. We are of the view that these external aids are very useful tools
not only for the proper and correct interpretation or construction of
statutory provision, but also for understanding the object of the statute,
the mischief sought to be remedied by it, circumstances in which it was
enacted and many other relevant matters.
Law is almost
Courts are
mean that in every case, court should take recourse to each admissible
external aid.
Court has to apply the appropriate law to the facts and circumstances of
the case.
Whether external aids can be incorporated into the General Clauses Act
21
LatestLaws.com
22
Now, the issue arises whether law about admissibility of these
external aids should be incorporated in the General Clauses Act 1897.
This issue was examined by the Law Commission in Chapter 2 of the its
60th Report.
2.7
codified.
This
It is not possible to
LatestLaws.com
23
consequential rigidity in this branch of the law is likely to do more
harm than good.
valid. We are of the opinion that in view of the reasons forthcoming also,
there is no need to disturb those recommendations in Chapter 2 para 2.7
of the 60th Law Commission of India Report and we reiterate the same.
It would not be appropriate to limit the extent of resources to be
considered as extrinsic aids to interpretation as this step would be antiprogressive.
LatestLaws.com
24
would serve a useful purpose to attempt to provide comprehensive
directives as to these factors.
Again
in
Chapter
IX
(Summary
of
conclusions
and
81.
We
accept
nevertheless
the
argument
summarized
in
One of the
issues was whether the Act should regulate the use that can be made of
material beyond the text of the enactment to assist its interpretation?
Obviously, these materials are known as external aids. The answer to
the question is given under para 22 of the Summary of the Report as
follows:
22.
Accordingly, a
LatestLaws.com
25
developing and will continue to develop rules and practices about
relevance and significance. Accordingly, the Commission does not
propose the enactment of legislation regulating the use of
parliamentary material.
legislative
form.
These
recommendations
of
all
these
Law
LatestLaws.com
26
the view that the judicial art of interpretation and appraisal is
imbued with creativity and realism and since interpretation always
implied a degree of discretion and choice, the courts would adopt,
particularly in areas such as constitutional adjudication dealing
with social and defuse (sic) rights. Courts are therefore, held as
finishers, refiners and polishers of legislation... (para 15)
The legislature often fails to keep pace with the changing needs
and values, nor it is realistic to expect that it will have provided all
contingencies and eventualities. It is, therefore, not only necessary
but obligatory on the court to step in to fill the lacuna. (para 17)
The legislature
cannot, when it makes a law today, foresee the kind of aids which may
be useful after a gap of years nor can it foresee all situations in which a
particular aid can be helpful. For example, now courts use information
of judgements of foreign jurisdictions which is available on internet, as
26
LatestLaws.com
27
an external aid for interpretation. This facility was unknown in the past.
Similarly, in future some other new technology may come out. Again,
new or peculiar circumstances may arise where the court has to take
recourse to some material or aid which has not been used in the past as
external aid.
Bhagwati J. (as he then was) in S.P. Guptas case has held that the
interpretation of every statutory provision must keep pace with changing
concept and values and it must accord with the requirement of the fast
changing society which is undergoing rapid social and economic
transformation.
Such
social
and
economic
changes
cannot
be
LatestLaws.com
28
Pollution Control Board II vs Prof. M.V. Nayudu, (2001) 2 SCC 62); right
to health care (State of Punjab vs Ram Lubhaya, (1998)4 SCC 11). Now,
procedure established by law means that substantive law as well as
procedural law must be just, fair and reasonable. Meaning of words
affairs of state appearing in section 123 of the Evidence Act has also
undergone drastic changes with the passage of time. In this regard, Law
Commission in its 60th Report at para 2.9 has observed:
It was Mr. Justice Holmes who pointed out in his inimitable style
that, a word is not a crystal, transparent and unchanged, it is the
skin of a living thought and may vary greatly in colour and content
according to the circumstances and the time in which it is used.
(para 4)
This kind of rule that the meaning of the words may get changed
with the passage of time cannot be expressed in legislative form.
LatestLaws.com
29
Interpretation is not mathematics, where the answer given by every
person to the particular mathematical problem must tally with
each other if the answer are correct.
It was observed in Distt. Mining Officer v Tata Iron and Steel Co.,
(2001) 7 SCC 358 that a bare mechanical interpretation of the words and
application of legislative intent devoid of concept or purpose will reduce
most of the remedial and beneficent legislation to futility.
Further, rules of interpretation are not rules of law; they are mere
aids to construction and constitute some broad points. It is the task of
29
LatestLaws.com
30
the court to decide which rules are, in the light of all circumstances, or
ought to prevail (see Keshavji Ravji & Co. v CIT, (1990) 2 SCC 231).
The Law Commission in its 60th Report has stated at para 2.9:
LatestLaws.com
31
a law or Act, becomes functus officio, so far as that particular Act
is concerned and it cannot interpret it. (para 47)
about external aids may also require interpretation from the court as the
language may bear two views or may be ambiguous.
Therefore, the
codification of these rules would not serve any purpose, rather it may
create some more problems of interpretation.
In our country, rules for interpretation in the form of a scientific
system were developed since very early times known as Mimamsa
Principles of Interpretation. These principles were regularly used by our
renowned jurists like Vijnaneshwara (author of Mitakshra), Jimutvahana
31
LatestLaws.com
32
(author of Dayabagh), Nanda Pandit (author of Dattak Mimamsa), etc.
Whenever there was any conflict between two Smrities, eg., Manusmriti
and Yagnavlkya Smriti, or ambiguity in a Shruti or Smriti, the Mimamsa
Principles were utilized.
No doubt, these
it is
32
LatestLaws.com
33
Can these rules of Mimamsa be incorporated in the legislative
form?
construction are codified then it may be that some radical sources are
kept out of purview of interpretation unknowingly.
Language of sub-
exhaustive in form.
Furthermore, the
Interpretation Act of 1978 (UK) does not even contain this provision.
33
LatestLaws.com
34
Interpretation Act does not contain provisions regarding use of external
material.
On the basis of the discussion above, we are of the view; (1) in the
event of ambiguity of a provision, for the purpose of interpretation of
such a statutory provision, courts can certainly take recourse to material
or aids outside the statute, i.e., external aids, and (2) the rules of
interpretation specially regarding use of external aids, should not be
incorporated in the General Clauses Act, 1897 at all.
We recommend accordingly.
34
LatestLaws.com
35
In the letter of reference, we have extracted a passage regarding
impact of information technology. Merely because the Indian Evidence
Act has been amended by the Information Technology Act, 2000 keeping
in view the advancement of information technology, that should not lead
to amendment of the General Clauses Act, 1897 because the terms
expressed in the amended General Clauses Act will have an all pervasive
impact
on
the
post-amendment
General
Clauses
Act,
Central
enactments only.
There are sixty six clauses in the said section which give
LatestLaws.com
36
1897
and
all
Central
Acts
and
Regulations
made
after
the
But these
LatestLaws.com
37
an
Act,
after 1897.
37
LatestLaws.com
38
These provisions (secs. 3 and section 29 of the General Clauses
Act, 1897) make it clear that the rules of construction of statutes and the
meaning of the words and phrases given in the General Clauses Act,
1897 would be applicable only to those Central Acts, Regulation, rules or
bye laws which are made after the commencement of Act of 1897. As
observed in the 60th Report of the Law Commission quoted below, the
reason behind the above conclusion is that a particular statute should be
interpreted according to the rules for construction prevailing at the time
of its enactment. Later changes in the rules of construction should not
affect former enactments.
LatestLaws.com
39
incorporation in the present Act, at the same time making those
new provisions prospective. The proposal for having two Acts does
not, in this respect have any peculiar merit.
(emphasis laid)
Law
LatestLaws.com
40
operation of the Article 367; and the General Clauses Act, 1897 as
it stood immediately before 26 January, 1950 (subject to
adaptations made under the Constitution) will continue to apply.
The Law Commission in its 60th Report has suggested few changes
only.
The
Commission
has
observed
at
para
1.26
that
the
The result is, that the most of the changes proposed in the General
Clauses Act 1897 in 60th Report of the Law Commission will be
applicable only and only to statutes which will be enacted after the
proposed amendments are enforced and not on the existing enactments.
Therefore, the Commission does not consider it necessary to undertake a
fresh review of the aforesaid recommendations contained in the 60th
Report.
We recommend accordingly.
40
LatestLaws.com
41
(Justice M. Jagannadha Rao)
Chairman
(T.K. Viswanathan)
Member-Secretary
Dated: 01.11.2002
41