EXCLUSIONARY PRINCIPLE UNDER INTERPRETEATION OF STATUTES

INTRODUCTION

The true way of construing a statute is to take words as the Legislature has given them and to
the take the meaning of the words as the generally or naturally imply. This is easy to say
when the statute is clear, but what happens in a situation where the legislature has left some
areas ambiguous which often happens or because of other surrounding circumstances the
provisions are not clear. This mostly happens in a situation where authors and jurists tend to
imply things which are not mentioned, this is a common problem of interpretation. Many
statutory propositions are implied rather than being expressed. There is therefore need for
inference by the statute reader and for this reason certain methods are laid down in law. The
maxim expressum facit cessare tacitum embodies the principle that no inference is proper if it
goes against the express words Parliament has used. The chief application of this principle
lies in another maxim of expressio unius est exclusio alterius.1

Law divides aids of construction into internal and external. This maxim falls under the
internal aids of construction, meaning therefore that incase a doubt or an ambiguity arises as
to various provisions or sections within the statute, such an aid to construction may be
applied.

This rule enunciates one of the first principles applicable to the construction of written
instruments.2 This is based on the principal of interpretation that what is left unexpressed was
in all probability not expected at all.3

However it must be noted that this principle is one of common sense and has no legal
backing, thus this must be used with great caution and in this paper the researcher will
attempt to understand both the sides of this principle. Thus where on one side it is a great

1 Francis Bennion, Statutory Interpretation:A code, 3rd ed (London; Butterworths, 1997) at 969

2 R.M.Kersley, Brooms Legal Maxims, 10th ed; 1st Indian reprint ( New Delhi; Universal Book
Traders, 1993) at 443.

3 Id.

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help to the courts, on the other hand it has a number of limitations which must be adhered to
in order to maintain justice and equity.

RESEARCH METHODOLOGY

AIMS AND OBJECTIVES:

The aim of this project is to understand certain internal aids of construction which is essential
when trying to interpret statutes, their usage and meaning.

The object of this research paper is also to try and understand how courts have used the
exclusionary principle in interpreting the intention of the legislature.

RESEARCH QUESTIONS:

What does the maxim expression unius exclusio alterius mean?

What must one keep in mind when using this principle as an aid to construction?

How is this maxim applicable in interpreting a statute?

What are the circumstances where this maxim cannot be applied?

SCOPE AND LIMITATIONS:

The scope of this project is to understand the exclusionary principle which is helpful in the
interpretation of statutes and in deciphering the intention of the Legislature.

Due to lack of an in depth understanding of the subject, the researcher may not have been
able to cover all aspects relating to the topic but has limited her scope to the basic concepts
involved in the subject.

METHOD OF WRITING:

The researcher has used both a descriptive and analytical method of writing in order to
understand the issues involved in this principle better. Also the researcher has taken the help
of judicial decisions in reiterating her views on the subject.

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MODE OF CITATION:

A uniform mode of citation has been followed throughout this project.

SOURCES OF DATA :

The researcher has used secondary sources in order to obtain sufficient data for this project,
namely, books, articles and the internet.

CHAPTERISATION:

Chapter 1: This chapter deals with the meaning of the exclusionary principle and goes on to
discuss the instances where this principle would be attracted and how the Courts have used
this principle in the past.

Chapter 2: This chapter deals with the instances where the principle expressio unius is of no
application and why the use of such a principle then would impede justice instead of meting
out justice and fairness.

CHAPTER 1

PRINCIPLE OF STATUTORY CONSTRUCTION AND ITS USAGE

Application of the maxim:

This maxim is based on the probable intention of the legislature. While the maxim has
received mention in legalistic thinking, it is not of a legal origin, but a product of logic and
common sense. In Shankara Rao Badami v. State of Mysore,4 the appellants challenged the
validity of the Mysore (Personal and Miscellaneous Inams) Abolition Act, 1954, on the
ground that it did not provide compensation as a just equivalent. The contention was that
the States power to make a law under Entry 36 of List II of the Constitution 5 as regards
acquisition of property, read with Entry 42, List III (as it stood then) could be exercised

4 (1969) 1 SCC 1

5 As it was relevant at that time.

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subject to the condition that it should be for public purpose and should provide for
compensation. The Court held such an argument to be untenable in the light of the fact that
both these conditions had been expressly provided for in Article 31(2) of the Constitution and
it is further enacted that no law shall be made which takes away or abridges these safeguards,
and any such law, if made, shall be void. Hence the question of these conditions being read
implicitly into Entry 36 of List II or Entry 43 of List III did not arise at all. The
maxim expressio unius is a principal of logic and common sense and not merely a technical
rule of construction. Therefore, where a certain stipulation is expressly laid down in a
particular provision it is not correct to treat the obligation as arising implicitly from another
provision.

Historically, it was first applied to legislation where the statute designated a particular remedy
for enforcing a right or power which did not previously exist. Its use was gradually extended
to fit into all kinds of statutes, including those on taxation, administrative bodies,
corporations contracts, marriage, liens, crimes, exemptions and others.6

However this maxim is not one of easy application. The rule that the expression of one thing
is the exclusion of another, is in direct contradiction to the habits of speech of most persons. 7
For this reason, the rule must be applied with extreme caution. Therefore the maxim properly
applies only when in the natural association of ideas in the mind of the reader which is
expressed is so set over by way of strong contrast to that which is omitted that the contrast
enforces the affirmative inference that that which is omitted must be intended to have
opposite and contrary treatment.8

A statute is to be construed, as far as possible, as to give sense and meaning to every part.

Words of designation:

6 J.K.Shanmukham, N.S.Bindras Interpretation of Statutes, 8th ed (Allahabad; The Law Book Co (P)
Ltd., 1997) at 307

7 Earl.T. Crawford, Construction of Statutes (Lahore; Pakistan Law House, 1998) at 337

8 Supra note 6, at 308.

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The principle of expressio unius applies where some only of a possible series of substantives
or other items are expressly designated. 9 An illustration to this affect will make the issue
clearer. An Act authorized a company to build bridges of the heights and spans shown on the
deposited plan. The plan also showed inclinations. While conforming to the specified heights
and spans, the company departed from the inclination. The Company was however not held
to be infringing the Act. This is because there was no obligation beyond the heights and spans
of the bridges as portrayed in the plan. These heights however, were mentioned in the
enactment and nothing was said as to the rates of the inclination of the road and thus the
application of the maxim expressio unius est exclusio alterius.10

Words providing remedies:

Where an Act sets out specific remedies, penalties or procedures it is presumed that other
remedies, penalties or procedures that might have been applicable are by implication
excluded.11 With regard to a statute purporting to impose a charge, the rule to be applied is
that the intention to impose a charge on the subject must be shown by clear and unambiguous
language. If the language leaves place for coming to the conclusion that only penalties
specified in the Central Act are enforceable by the machinery for enforcement of liability
under the general sales tax law of the State, then the legislative intent can safely be presumed
to confine penalties mentioned in the Central Act to only those as are mentioned specifically
in the Central Act, thus once again bringing in the application of the principle that mention
of one or more things of a particular class may be regarded as silently excluding all other
members of the class.12

Words of extension:

The most common way of extending the indisputable meaning of a term is by the use of an
enlarging definition. Where it is doubtful as to whether a term includes a certain class and
words of extension are added thereto which covers only some of the members of the class, it

9 Supra note 1, at 971

10 R v. Caledonian Rly, (1850) 16 QB 19. Cf, Maxwell, at 971

11 Supra note 1, at 972

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is then implied that the remaining members of the class are excluded. 13 For example under
one particular Act it stated that the word parent includes the mother of an illegitimate child.
The class to which this extension relates therefore is the parents of an illegitimate child.
Therefore, using the rule of expressio unius in this case, the express mention of the mother
implies that the father is excluded.14

Qualifying Substantives:

The use of qualifying substantive at one place and not in another might show that the
legislature does not intend to use the phrase or word and is thereby assumed to be excluded.

CHAPTER 2

MAXIM MUST BE APPLIED WITH CAUTION

Where maxim does not apply:

12 Khemka &Co v. State of Maharashtra, (1975) 2 SCC 22. In this case the question that arose was
the scope of S.9(2) of the Central Sales Tax Act, 1956. The sub-section empowers the State authorities
to assess, reassess and enforce payment of tax on behalf of the Government of India including any
penalty payable by a dealer under the Central Act. The second part of the provision provides that this
will be as if the tax or penalty payable by such a dealer under the Central Act is a tax or penalty under
the general sales tax law of the State. There was no provision in the Central Act for a penalty for delay
in payment of tax, but there is such a provision in the State Act. Thus in deciding whether the penalty
could be imposed for delay, by the State, the Court held that, after looking at the State and the Central
Act, it is obvious that the provisions relating to the penalties are special and specific provisions in
each Act. They are not part of the general sales tax law of either the States or the Union. Now if the
provisions relating to the penalties such as those found in the Central Act and the State Act are really
special provisions which can be invoked in special circumstances given in each statute, the reference
to the penalties in the concluding part of S. 9(2) must be interpreted to relate only to the special
provisions relating to the penalties provided for specifically in the Central Act. This interpretation can
be given by the application of the rule expressio unius est exclusio alterius. Thus we see that this case
is a valid and useful example of the principle and we see how the express mention of one thing
excludes another.

13 P. St. J. Langan, Maxwell on the Interpretation of Statutes, 9th ed ( Bombay; N.M.Tripathi Pvt.
Ltd., 1997) at 973

14 R v. Secretary of State for the Home Department ex p Crew, [1982] Imm AR 94. Cf, Id.

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There are certain limitations as to the application of the expressio unius maxim. Where the
intention clearly reveals that the legislature did not mean that express mention of one thing
should operate to exclude all others, the maxim cannot apply.15 Further, where the statutory
language is plain and the meaning is clear there can be no implied exclusion.16

This was reiterated in Parbhani Transport v. R.T.A.17 in this case permits to ply buses were
granted to the State of Bombay under Ch IV of the Motor Vehicles Act, 1939. it was
contended by the petitioner that since the Act by Ch IV-A provided that the Government
would be entitled to run buses under a particular scheme, it impliedly prohibited the running
of buses by the Government otherwise and to support this argument the expressio
unius principle was relied upon. The Court here held that the maxim was meant for
ascertaining the intent of the legislature. Where the statute is clear there is no scope for
applying this maxim. S.43(3)(a) of the Motor Vehicles Act was seen to be plain in its term. It
contemplates that the Government has to apply for permits under S.42(1) to run buses as a
commercial enterprise. For this reason there maxim could not be used for ascertaining the
intention of the legislature and implying a prohibition where none exists.

The maxim therefore, only applies where there is a doubt in the language of the statute or
provision and should not be used with intent to defeat the legislative purpose.18

As seen above, when applying a principle of construction, it must be noted that such
application is subservient to the fact that the court must endeavour to establish the legislative
intent and purpose, and only then adopt a rule of construction which effectuates this intent.
Therefore the idea that where a mode of performing a duty is laid down by the law it must be
performed in that mode or none at all, should not be adopted blindly under the maxim
of expressio unius est exclusio alterius, without reading it in light of the purpose of the
provision.19

15 See generally R.S.D.V. Finance Co. Pvt. Ltd v. Shree Vallabh Glass Works Ltd, (1993) 2 SCC 130

16 Supra note 1, at

17 AIR 1960 SC 801

18 Supra note 6, at 308

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What is the reason for such limitation? It is often argued that a failure to make an expression
complete may arise from the accidents of legislative procedure and it is common to find
provisions put into statutes ex abundanti cautela20and at the instance of parties interested.

In the case of State of Karnataka v. Union of India,21 an argument was put forward for the
appellants wherein they contended that the Commission of Enquiry set up by the Central
Government against the Chief Minister and other Ministers of the State was unconstitutional
in so far as Section 3 of the Commission of Inquiry Act, 1952 was in derogation of the federal
structure of the Constitution. In essence the argument put forward was that since List I of
Schedule VII did not expressly provide for such a legislative enactment it was necessary to
deem the same as beyond the scope of the legislative power of Parliament through the
application of the expressio unius est exclusio alterius rule. The Supreme Court was emphatic
in its dismissal of this novel argument. It held that the residual powers vested in Parliament
through Article 248 and Entry 97 of List I of Schedule VII was designed to cover such
exigencies of public importance all of which could not be envisaged at the time of drafting of
the Constitution. Hence an enactment such as Section 3 of the impugned legislation fell
squarely within such residual power of Parliament since the same was not present, either in
List II or List III. In such a scenario, the Court held, that it would constitute gross injustice to
construe limitations on the legislative power of Parliament on a mere theory of restriction of
the same when the Constitutional scheme expressly provided a methodology to fill the lacuna
caused by an unforeseen situation.

Not of universal application:

19 Asstt. Collector,Central Excise v. National Tobacco Co. of India Ltd, (1972) 2 SCC 560. In this
case the primary issue was the application of Rule 10-A of the Central Excise Rules for the purposes
of ascertainment of any deficiency in duty or its cause by a quasi-judicial procedure. The objection
raised against the same was that since Rule 10 did not mention the same, it was meant to be expressly
excluded from the scope of the authority in question, since Rule 10-A was only residual in nature.
However following the judgment in N. B. Sanjana v. Elphinstone Spinning and Weaving Mills Co.
Ltd., (1971) 1 SCC 336, the Supreme Court held that the rule of expression unius est exclusio
alterius must necessarily be read down in so far as is required to effectuate the provisions of the
statute in question, rather than applying this rule of construction in such a manner that would make a
statutory provision redundant.

20 With abundant caution.

21 (1997) 4 SCC 608

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 The maxim expressio unius est exclusio alterius is not one of universal application, and it is
inconceivable that the framers of the Constitution could have intended to deny to the Indian
Legislatures, a power which, as we have seen, has been recognized on all hands as a
desirable, if not, as a necessary concomitant of legislative activity in Modern States.22

This was observed by Patanjali Sastri.J, in In Re, The Delhi Laws Act,1912. In this case the
question that arose was whether the delegation of a discretionary power to pick and choose
laws made by other legislatures to operate elsewhere and to apply to certain territories was
within the competence of the Central Legislature. In this case the argument put forth was that
there existed an implied prohibition against delegation on the strength of Art. 357(1)(a) which
provides specifically for delegation by the President of the law-making powers conferred on
him by Parliament in case of failure of the constitutional machinery in States. It was
contended, that the express provision mentioned above shows that whenever the makers of
the constitution wanted to authorize delegation of legislative powers they have made specific
provision in that regard and, in the absence of any such provision in other cases, no
delegation of such power is permissible.

From the study of the exclusionary principle we see is that such an argument will not hold
good. Just because in one rare instance an express provision authorizing the President to
delegate to another the law-making powers conferred on him by Parliament in the
Constitution, it is not reasonable to infer that it was intended to prohibit the delegation of
powers in all other cases.23 The aid to construction is not one of general application but works
from a case to case basis, keeping in mind the purpose of the legislature and intent of the
provision or the statute.

Superfluous provisions:

The Legislature sometimes uses superfluous words or provision mainly as a matter of

abundant caution. It is common to find special exemptions covered by general exemptions.
These exemptions are often introduced ex majori cautela24to pacify persons whose interests
are engaged or sympathies aroused in favour of some particular institution, and who are

22 Patanjali Sastri, J

23 Vepa. P.Sarathi, Interpretation of Statutes, 4th ed (Lucknow; Easter Book Company, 2003) at 103

9
apprehensive that it may not be interpreted so as to fall within the general exemption. 25Such
provisions do not attract the expressio unius principle and the only inference that can be
drawn from such superfluous provisions is that the legislature was either ignorant or
unmindful of the real state of the law or that it acted under the influence of excessive
caution.26

This was reiterated in the case of Harish Chandra v. Triloki singh,27in this case the appellant
was charged for certain corrupt practices in furtherance of his election prospects. 28 It was
claimed that in the election petition the appellant had not furnished certain particulars an

Also it must be noted that when additional powers or responsibilities are conferred or when a
new option is given in the statute, this does not close out previous powers and options.

Principle of caution:

The principle of interpretation and that of expressio unius est exclusio alterius is not a rule of
law but one of construction. It is a product of common sense and must be therefore applied
with caution so that a rational interpretation is produced. Therefore, if the rejection of the
maxim will serve the purpose for which the statute was enacted or will accomplish beneficial
results, the maxim must be refuted.29 The maxim therefore does not apply where one can
conclude that the provision has been added with abundant caution. Sometimes the person
concerned is uncertain as to whether something comes within the ambit of the provision, to

24 Justice G.P.Singh, Principles of Statutory Interpretation, 9th ed (Nagpur; Wadhwa & Co, 2004) at
71.

25 Id.

26 Harish Chandra v. Triloki Singh, AIR 1957 SC 444

27 AIR 1957 SC 444.

28 Mainly that he employed village officers to carry out his propaganda which was not mentioned in
the Act.

29 Lowe v. Dorling & Son, (1906) 2 KB 772, 784. Farwell, L.J- Acts of Parliament are not in my
experience, expressed with such accuracy and precision as to justify the Court in striking out
unambiguous words in order to make a sentence grammatical or logical.

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convince and reassure such persons the legislator may add an exception. Thus there is already
a built in caution and thus the maxim will not apply as the intent is clear and plain.

Further Lopez L.J. observed in the case of Colquohoun v. Brooks,30

This maxim is a valuable servant but a dangerous master to follow in the construction of
statutes or documents. The exclusio is often the result of inadvertence or accident, and the
maxim ought not to be applied, when its application, having regard to subject- matter to
which it is to be applied, leads to inconsistency or injustice

Thus as we have observed from the above judgment, it is not enough that the express and the
implied are merely incongruous but it must be clear that they cannot reasonably be intended
to coexist.

Other situations:

Apart from the instances mentioned above, this principle of construction has no application
where the statute merely affirms the existing law.31 Nor does it apply to matters omitted by
oversight, or where it clearly appears that something was expressly mentioned for another
reason or merely because of caution. Further, this maxim has no application to the title of an
Act.32

30 (1887)19 QBD 400. Cf, Supra note 13, at 296. the issue in this case was that a statute imposed a
tax in respect of the annual profits or gains arising or accruing to any person residing in U.K. from
any kind of property whatsoever, whether situate in U.K. or elsewhere, and for and in respect of the
annual profits or gains arising or accruing to any person residing in the U.K. from any profession,
trade, employment, or vocation, whether the same shall be respectively carried on the U.K. or
elsewhere. Now the issue was whether the profits of a partner of a business carried on in Australia
residing in England, were profits of the business accruing to him in Australia and kept there without
being transmitted to England, taxable under the provision in question. The Crown pointed to an
express provision in the same statute that interest on foreign or colonial securities was only chargeable
to tax if it was actually received in England. This was used to show the application of the expressio
unius principle, that the profits of a business carried on abroad and accruing to a person resident in
England were taxable whether or not he actually received them there. This argument was rejected by
the Court which said that a rigid observance of the maxim in this case would make other provisions
of the statute inconsistent and absurd.

31 Supra note 7,at 336.

32 Id.

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CONCLUSION

Statutes makers are human like everyone else and therefore there is every chance of mistake
or lack of clarity. In fact sometimes the Legislature deliberately expresses certain things and
excludes certain things with a particular intention and it is for the statute reader to understand
this intention.

It is for this purpose that maxims such as expressio unius est exclusio alterius were formed, to
help the statute reader to come to a consensus where certain things were expressly implied to
exclude other things. And thus we see through various case laws that the this principle helps
avoid the mischief of some contenders who try to twist the statute to their advantage.

However these principles of statutory interpretation are not as cut and dry as it seems and in
applying them one must be extremely cautious. The point is that sometimes the exclusion by
the legislature maybe an accident and therefore it is not right to apply the principle at will
without weighing out the pros and cons, the idea of these principles is to help interpret a
statute and not to cause injustice and defeat the law. Thus it must be kept in mind that aids of
construction though are to help interpretation of statutes, yet Courts in applying these aids
must be cautious and must not make it a blanket application as this may lead to injustice and
the duty of Courts is to give justice and not to create further confusion in ambiguous statutes.

Thus reiterating once again that the expressio unius principle is a helpful master but a
dangerous servant, and therefore in using this principle one must exercise abundant caution.

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BIBLIOGRAPHY

Books:

1. Francis Bennion, Statutory Interpretation:A code, 3rd ed (London; Butterworths,

1997).

2. R.M.Kersley, Brooms Legal Maxims, 10th ed; 1st Indian reprint ( New Delhi;
Universal Book Traders, 1993).

3. J.K.Shanmukham, N.S.Bindras Interpretation of Statutes, 8th ed (Allahabad; The Law

Book Co (P) Ltd., 1997).

4. Vepa. P.Sarathi, Interpretation of Statutes, 4th ed (Lucknow; Easter Book Company,

2003).

5. Justice G.P.Singh, Principles of Statutory Interpretation, 9th ed (Nagpur; Wadhwa &

Co, 2004).

6. Earl.T. Crawford, Construction of Statutes (Lahore; Pakistan Law House, 1998).

7. P. St. J. Langan, Maxwell on the Interpretation of Statutes, 9th ed ( Bombay;

N.M.Tripathi Pvt. Ltd., 1997) .

8. Lord Trayner, Trayners Latin Maxims, 4th ed, 1st Indian Reprint (Delhi; Universal
Law Publishing Co. Pvt. Ltd, 1997).

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 9. Daniel Greenberg (ed), Craies on Legislation, 8th ed (London; Sweet & Maxwell,
2004).

10. John Bell and George Engle, Cross Statutory Interpretation, 3rd ed ( London;
Butterworths, 1995).

Indian Cases:

1. Asstt. Collector,Central Excise v. National Tobacco Co. of India Ltd, (1972)

2 SCC 560.

2. Harish Chandra v. Triloki Singh, AIR 1957 SC 444.

3. In Re, The Delhi Laws Act,1912.

4. Khemka &Co v. State of Maharashtra, (1975) 2 SCC 22.

5. Parbhani Transport v. R.T.A, AIR 1960 SC 801.

6. R.S.D.V. Finance Co. Pvt. Ltd v. Shree Vallabh Glass Works Ltd, (1993) 2
SCC 130.

7. Shankara Rao Badami v. State of Mysore, (1969) 1 SCC 1.

8. State of Karnataka v. Union of India, (1997) 4 SCC 608.

English Cases:

1. Colquohoun v. Brooks, (1887)19 QBD 400

2. Lowe v. Dorling & Son, (1906) 2 KB 772.

3. R v. Caledonian Rly, (1850) 16 QB 19.

4. R v. Secretary of State for the Home Department ex p Crew, [1982] Imm AR

94.

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