CHAPTER-IV

STATUTORY INTERPRETATION AS AN ASPECT OF JUDICIAL

PROCESS, THE RULES AND AIDS OF STATUTORY
INTERPRETATION

In this chapter, an attempt has been made to bring out -

a) Statutory interpretation as an aspect of judicial process
b) Rules of statutory Interpretation
c) Aids of statutory interpretation

a) Statutory interpretation as an aspect of judicial process:

In the words of Salmond, "Legislation is that source of law which

consists in the declaration of legal rule by a competent authority".

In the strict sense, Legislation "is the laying down of legal rules by a
sovereign or subordinate legislator".

Law that has its source in legislation may be most accurately termed
'enacted law1, all other forms being distinguished as 'unenacted'. The more
familiar term, points out Salmond, is 'statute law1 as opposed to the common
law".

"The operation of statute" observes Prof. Allen, "is not automatic, and
can never be so. Like all legal rules, it has to take effect through the
interpretation of the courts".

Literal or Grammatical Interpretation:- This is known as the Golden rule

of statutory interpretation.

Prof. Allen in his "Law in the Making" observes as follows:

"As precedent is only an instrument of judicial reasoning, and serves as

a means to the ascertainment of a principle, so literal construction is only an
instrument of the same process, and serves for the ascertainment of the'
general purport' of the statute, or 'Ratio Legis'. This is the so called 'Golden

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rule' of all statutory Interpretation, formulated in a very well-known dictum of
Parke, B. (Becke V. Smith); (1836).

'It is a very useful rule in the construction of a statute to adhere to the

ordinary meaning of the words used, and to the grammatical construction,
unless that is at variance with the intention of the Legislature to be collected
from statute itself, or leads to any manifest absurdity or repugnance, in which

case the language may be varied or modified so as to avoid such

inconvenience, but no further".

The Golden Rule of Statutory Interpretation may be summed up as

under:
a) Normally the Grammatical Interpretation should be followed;
b) If such an interpretation leads to any absurdity or repugnance, the
language of statute may be modified to the extent required to remove such
absurdity or repugnancy.

The respect of the judges for the words of the statute is usually such
that they consider themselves bounds by the exact phraseology even though
the effect of so doing may be to produce sinister consequences in the law.
Lord Brougham delivering the judgement of the Judicial Committee has
observed as follows in Crawford v. Spooner: 'The construction of an Act must
be taken from the bare words of the Act. We cannot fish out what possibly
may have been the intention of Legislature. We cannot aid the Legislature's
defective phrasing of the statute. We cannot add and amend and by
construction make up deficiencies which are left here The true in these cases
is to take the words as the Legislatures has given them and to take the
meaning which the words given naturally imply unless where the construction
of those words is either by Preamble or by the context of the word in question -
controlled or altered. And, therefore, if any other meaning was intended than
that which the words purport plainly to import then let another Act supply the
meaning and supply the defect in the previous Act."

LOGICAL INTERPRETATION: When permissible: Logical interpretation

involves going behind the language used in the statute for the ascertainment
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of its meaning and is resorted to when grammatical interpretation fails to meet
the case. As to when logical interpretation is entitled to supersede
grammatical is clearly pointed out by Lord Machnaghtenin Vacher and Sons
Ltd., v. London Society of Compositors1. He observes that: "There can, I think,

be only two cases in which it is permissible to depart from the ordinary and
natural sense of the words of an enactment. It must be shown either that the
words taken in their natural sense lead to some absurdity or that there is
some other clause in the body of the Act inconsistent with, or repugnant to the

enactment in question construed in the ordinary sense of the language in

which it is expressed".

Logical defects in expression may be removed by Interpretation: -

Logical interpretation is thus permissible in two cases. In the First place, the
text of the statute when literally understood may lead to a result so manifestly
absurd and unreasonable that it may well be presumed that the legislature

could not have meant what it has said. In such a case the meaning of the
legislature has to be deduced by looking behind the litera legis, that is by the
process of logical interpretation.

The second case, in which, according to Lord Macnaughten, logical

interpretation is permissible, is when the literal interpretation leads to
repugnancy. Owing to the imperfections of language a particular word used in
the statute may be in the context produces some inconsistency and render
the provision of the law meaningless. In such a case too, logical interpretation
should be resorted to. The rule of inconsistency mentioned by Lord
Mgcnaghten is but one illustration of logical defects in statutory expression.
Other defects which, according to Sahnond, render the suppression of
grammatical interpretation permissible are incompleteness- and ambiguity.
Incompleteness is the voice of providing for only one contingency when
alternative contingencies that might possibly arise should also be provided for.
Ambiguity as a logical defect of the litera legis appears when the expression
used in the statute is susceptible of a variety of meanings. Ambiguity and

*(1913) AC 107, 118

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incompleteness, quite as much as inconsistency, necessitate a resort to

logical interpretation.

Strict and Equitable Interpretation: When the litera legis suffers from
ambiguity, it usually happens that one of the meanings is more obvious and
consonant with the popular use of language. If this meaning is adopted, the
interpretation is called strict or literal. Courts sometimes reject the natural or
most known signification in favour of another which conforms better to the
intention of the legislature, the sententia legis, though it may accord ill with the
ordinary use of language. When this is done, we have an example of

equitable interpretation.

Restrictive and Extensive Interpretation: Equitable interpretation is either

restrictive or extensive according as it is narrower or wider than the literal
interpretation. The rule of restrictive interpretation is applied to penal and
fiscal statutes. These statutes -pose restraints on the liberty of a person or on
the enjoyment of property. For this reason in dubio courts lean against a
construction which imposes a greater burden on the subject than is warranted
by the literal meaning of the language employed in the statute.'

Illustration of extensive interpretation: An interesting illustration of

extensive interpretation is furnished by the decision in Nisbet v. Rayne and
Bum2. Nisbet was a cashier of the defendants, a firm of coalmineO"'Hers. It

was part of his duties to take every week from the office to the colliery the
cash out of which the wages of the employees at the colliery were paid. While
so engaged he was robbed and murdered. His widow claimed damages under
Section I of the Workmen's Compensation Act. 1906. The section provides
that when a workman has met his death by an 'accident' arising out of the
course of his employment, his widow may claim damages from the employers.

It was argued that murder could not be considered as an accident

within the meaning of the Act. Accident implies the absence of intention while
murder is clearly a deliberate and intentional act on the part of the criminal.

2 (1920) 2 KB. 689

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 Lord Justice Kennedy agreed that '"the description of death by
murderous violence as an accident cannot honestly be said to accord with the
common understanding of the world" He, however, observed, "1 conceive it to
be my duty rather to stretch the meaning of the word from the narrower to the
wider sense of which it is inherently and etymologically capable, that is, 'any
unforeseen and untoward event producing personal harm' , than to exclude
from the operation of the section a class of injury, which it is quite
unreasonable to suppose that the legislature did not intend to include within

it".

Since the word was given a wider meaning not warranted by the
familiar usages of speech, the kind of interpretation adopted by Lord Justice
Kennedy in the above case may be described as extensive interpretation.

The following methods of interpretation - Historical and Sociological -

which have not been specifically mentioned by Salmond, may also be noted.

Historical Interpretation - A form of logical interpretation: A third

method of interpretation Historical interpretation - is useful when the language
of the statute affords no clue to the intention of the legislature. We have seen
that grammatical interpretation breaks down ", when the letter of the law is
defective and intention of the legislature is not manifested unmistakably. We
pointed out that in such a case the true intention of the legislature which has
received imperfect expression in the statute is ascertained by a process of
logical interpretation. Sometimes the intention of the legislature, the sententia
iegis, may itself be defective. Not infrequently, the defects of the litera legis
are only reflections of corresponding defects in the sententia legis. In such
cases courts should consider the circumstances attending the original
enactment and give effect to the intention which the legislature would
presumably have expressed if its attention has been drawn to the particular
question.

As early as 1584 it was laid down in Heydon's case that "for the sure
and true Interpretation of ail statutes In general by the penal or beneficial,
restricting or enlarging the Common Law, four things are to be discussed and
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considered: first, what was the Common Law before the making of the Act;
the second, what was the mischief and defect for which the Common Law did
not provide; third, what remedy the Parliament hath resolved and appointed to
cure the disease of the Commonwealth: fourth, the true reason of the remedy;
and the office of all the Judges is always to make such construction as shall
suppress the mischief and advance the remedy, and suppress subtle

inventions and evasions for continuance of the mischief.

Limits of Historical Interpretation:- Historical Interpretation has

definite limits. Even in ascertaining the supposed intention of the legislature,
courts cannot travel out of the language used in the statute. Thus proceedings
in the legislature or the history of the introduction of a particular clause in the
statute in its progress through the legislature cannot be considered. Lord

Birkenhead said in Rhonda's (Viscountess) claim (1922) 2 A.C. 339: "The

words of the statute are to be construed so as to ascertain the mind of the
legislature from the natural and grammatical meaning of the words which it
has used, and in so construing them the existing state of the law, the
mischiefs to be remedied and the defects to be amended, may legitimately be
looked at together with the general scheme of the Act". Lord Wrenbury
pointed out in the same case that "The debate upon the bill, the fate of the
amendments proposed and dealt in Committee of either House cannot be
referred to, to assist in construing the language of the Act as ultimately
passed into the law with the Royal assent".

Sociological Interpretation: Not recognised by judges:- Jurists of

tiie sociological school are inclined to give judges very wide latitude in the
interpretation enacted law. According to Kohler, for the determination of the
correct interpretation courts can properly refer to the history of social
movements and enquire into the social needs, objects and purposes which
were agitating the society at the time of the legislation and which the statute
had in view. He observes: The opinion that the will of the law maker is
controlling in construing legislation is only an instance of the unhistorical
treatment of the facts of the world's history and should disappear entirely from
jurisprudence. Hence the principle: rules of law are not to be interpreted
according to the thought and will of the law-maker, but they are to be
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interpreted sociologically, they are to be interpreted as products of the white

people, whose organ the law-maker has become" (Modem Legal Philosophy

Series, Vol. 9, p. 225) Benjamin Cardozo has these pregnant observations on

this subject: "Formerly men looked upon law as the conscious will of the

legislator. Today they see in it a natural force. It is no longer in texts or in

systems derived from reason that we must look for the source of law; it is in
social utility, in the necessity by that certain consequences shall be attached
to given hypothesis. The legislator had a fragmentary consciousness of this

law; he translates it by the rules which he prescribes. When the question is

one of fixing the meaning of those rules, where ought we to search?

Manifestly at their source; that is to say, in the exigencies of social life. There
resides the strongest probability of discovering the sense of the law. In the
same way when the question is one of the supplying the gaps in the law, it is
not of logical deductions, it is rather of social needs, that we are to ask the
solution" (Nature of Judicial Process, P. 221).

It should be noted that method of sociological interpretation has not yet

received judicial recognition. It has now the support of eminent jurisprudential
writers and its importance is bound to increase with the deepening of the
sociological tendency in the approach to judicial problems.

The leading principles of statutory interpretation are summarized in the

celebrated resolutions in Heydon's case (1584) as follows:
"... .for the sure and true interpretation of all statutes in general, four
things are to be discussed and considered; 1st, what was the common law
before making of the Act;

Salmond gives some difficulties which may arise while interpreting the
words or language used in the statutes:

a) "the meaning of word is affected by its context, hence the legal

maxim 'noscitur a sods' which means that the "meaning of a word is to be
judged by the company it keeps". The context may consist of the surrounding
section or sections, the whole Act, or indeed the whole area of legislation.

1B3
 b) Another legal maxim to be followed in this connection is 'expressio

unius est exlusio alterius'. Salmond illustrates this maxim with the following ■

examples:

Suppose that a statute makes two provisions, A and B, both of which

would normally be taken to have a certain implication,, suppose, further, the
statute expresses this implication as applicable to A but fails to express it for
B. According to the maxim, the implication which would normally hold for B is
impliedly negatived by the failure to express it, having regard to the fact that it

expressed for A.

Another example is where the statute refers both to land and buildings
and then makes a provision for land alone. Here the provision may be
construed not to cover buildings, even through the word 'land' would normally

be taken to include 'buildings'.

Salmond, however, points out that the maxim is not a compelling rule
of law, but only a phrase that may be used by the court is expounding the
probable intent of the Legislature. In the quoted words of Lopes, L.J., "it is a
valuable servant but a dangerous master". Quite frequently the court holds the
respect of the Judges for the words of the statute is usually such that they
consider themselves bound by the exact phraseology, even though the effect
of so doing may be to produce sinister consequences in the law. Lord
Brougham delivering the judgment of the Judicial Committee has observed as
follows in Crawford v. Spooner: The construction of an Act must be taken
from the bare words of the Act. We cannot fish out what possibly may have
been the intention of Legislature. We cannot aid the Legislature's defective
phrasing of the statute. We cannot add and amend and by construction make
up deficiencies which are left here. The true way in these cases is to take the
words as the Legislature has given them and to take the meaning which the
words given naturally imply unless where the construction of those words is
either by Preamble or by the context of the word in question controlled or
altered. And, therefore, if any other meaning was intended than that which the
words purport to import then let another Act supply the meaning and supply
the defect in the previous Act".
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 Logical Interpretation: When permissible:- Logical interpretation

involves going behind the language used in the statute for the ascertainment
of its meaning and is restored to when grammatical interpretation fails to meet
the case. As to when logical interpretation is entitled to supersede
grammatical is clearly pointed out by Lord Macnaghten in Vacher and Sons
Ltd. v. London Society of Compositors. He observes that: "There can, I think,

be only two cases in which it is permissible to depart from that the express
provision made in the instance is 'ex abundant! cautela' and does not displace

the normal implication to the same effect in the second instances.

c) The maxim 'Expressum facit cessare taciturn* is sometimes used in

the same context mentioned above. It can be taken as having distinct

meaning; The proposition" observes Satmond, "that express words put an
end to implication is obvious enough but it has sometimes been used in the
past for questionable purposes, particularly that of refusing to pay attention to
the general words of statutes, where these are accompanied by specific
instances. At the present day it is rarely used for this purpose".

d) Yet another example of a rule of language in legal maxim is the

'ejusdem generis* rule which serves to restrict the meaning of general words
to things or matters of the same kind (genus) as the preceding particular
words. So, for example, where the Sunday observance Act, 1677, provided
that "no tradesman, artificer, workman, labourer, or other person whatsoever"
should do certain things, the general phrase, 'other person whatsoever* was
held to refer only to persons within the class indicated by the previous
particular words, and not therefore to include such persons as farmers or
barbers. (Palmer V. Snow). In the words of Salmond: 'This is a commonsense
rule of language. If a man tells his wife to go out and buy butter, milk, eggs
and anything else she needs, he will not normally be understood to include in
the term 'anything else she needs' a new hat or an item of furniture. The
scope of the maxim 'ejusdem Generis' came up for consideration in recent

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case; Housing Board of Haryana V. Haryana Housing Board Employees
Union and Others3. The Supreme Court observed.

"When a particular words pertaining to a class of genus are followed by

general words, the latter, namely, the general words are construed as limited
to things of the same kind as those specified4.). This is known as the rule of

ejusdem generis reflecting an attempt to reconcile incompatibility between the

specific and general words (Tribhuwan Parkash Nayyar V. Union of India5).

"This Court in Amar Chandra v. Collector of Excise, Tripura AIR 1972

SC, 1863 laid down that the rule applies when "(1) the statute contains an
enumeration of specific words; (2) the subject of enumeration constitute a
class or category: (3) that class or category is not exhausted by the
enumeration; (4) the general terms follow the enumeration; and (5) there is no
indication of a different legislative intent".

Thus, it is essential for application of the ejusdem generis rule that

enumerated things before the general words must constitute a category or a
genus. It was, therefore, pointed out by Lord Simonds in Russel v. Scott,6 that

"indeed if a collection of items is heterogenous, it almost cess a conflict in

words to say that they belong to same genus".

When the 'litera legis' or the language of law is unable to bring out the
'sententia legis" the intent or purport of the statute, it becomes necessary to
resort to logical interpretation. There are two cases where the letter of the law
need not be taken as conclusive.

The first of these is where the law is logically defective. A statute

may suffer from three different types of logical defect.

3 AIR 1996 S.C.-434

4 Kavalappara Kottarathil Kochuni V. State of Madras, AIR 1960 SC
1080
5 AIR 1970 SC 540
6 (1948) 2 All ER1 (HL)

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 a) First, it may be defective by virtue of 'Semantic ambiguity*. A word in
an Act of Parliament may be ambiguous as a result of the ’open texture' of

language.

b) A second kind of ambiguity, arises from the ambiguity of formal

words like 'or1, 'and', 'all' and so forth. If, for instance a court is empowered to
'fine or imprison' does this mean that the court can either fine or imprison but
not both, or does it mean that the Court can fine, imprison, or both? In other

words, is the word 'or* being used exclusively or inclusively?

In all such cases of ambiguity, whether conceptual or syntactic the

letter of the statute provides no solution i.e., the literary interpretation fails.
Here the courts must decide between the two alternatives. In such a case it is
the right and duty of the courts to go behind the letter of the Law and

ascertain from other sources as best they can the principal intention which
has thus felled to attain perfect expression.

c) Thirdly, it may be that ambiguities do not arise because of any

failure to express the intention of the legislature, but due to the fact, perhaps
the legislature speaks ambiguously as there is no single and definite meaning
to be expressed. If the words of the Legislature are self contradictory, it is
possible due to some repugnancy and confusion in the intention itself, If the
text contains omissions (causes omissi) which makes it logically imperfect,
the reason is more often that the case in question has not occurred to the
mind of the legislature, than that there exists with respect to it real intention
which by inadvertence has not been expressed.

In such cases of cossus omissi and where even logical interpretation is

adequate, the question arises whether the courts can correct and supplement
the defective 'sentitia legis* as well as the defective 'litera legis' The Casius
omissus rule provides that omissions in a statute cannot, as a general rule, be
supplied by construction. This rule is well illustrated by the recent case of

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Parkinson v. Plumpton7. The Catering Wages Act, 1943, prescribed minimum

wages payable to workers in catering establishments. The schedules to the

Act provided for the minimum wages: (I) when the employer supplies the
worker with the full board and lodging; (ii) when the employer supplies the

worker with neither full board nor lodging.

The plaintiff was a worker in a catering establishment. She was

provided with full board but not with lodging. She claimed that she was paid
less than the minimum wages payable under the Act. Lord Goddard, C.I.,
dismissing the action observed .: "I think there is a casus omissus, and that
the draftsman has forgotten to provide for the case where, as here, board is
provided, but not lodging within the meaning of the schedule. I suppose it was
thought that full board would only be supplied when lodging were provided,
and, as I have said, lodging seems to be put out of account here. These
people were there full time, and so, therefore, you have got this unfortunate
hiatus. One always tries to construe words so as to give them a sensible
construction and prevent their failure, but I do not know of any cannon of
construction which enables me to construe 'where the employer supplies the
worker with neither board nor lodging' to include a case where the employer
supplies full board but no lodging. I can't rewrite the legislation. I must enter

judgment for the defendant" Salmond lays down as follows in this connection'.

If the letter of the law is logically defective, it must be made logically

perfect, and it makes no difference in this respect whether the defect does or

does not correspond to one in the 'sententialegis' itself. Where there is a

genuine and perfect intention lying behind the defective text, the courts must
ascertain and give effect to it, where there is none, they must ascertain and
give effect to the intention which the legislature presumably would have had,
if the ambiguity, inconsistency or omission had been called to mind. This may
be regarded as the dormant or latent intention of the Legislature, and it is this
which must be sought for as a substitute in the absence of any real and
conscious intention.

7<1954) 1 All ER 201

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 The justification for this method of interpretation is two-fold; first, it is
likely to effectuate the intention of the legislature; and secondly, it avoids
absurd, unjust or immoral results and preserves the broad principles of the
law. However, care should be taken to see that the principle is not used as a
means for whittling down what was evidently intended by parliament as a
broad reforming measure".

Such are the important rules of Statutory Interpretation.

Theoretical or Ideological Approaches to Interpretation: Prof. W.
Friedmann, distinguishes three kinds of Judicial Approach (1) the Pseudo-
logical or Tex-book approach, (2) the Social policy approach (3) and the 'Free-
intuition approach'. The first two correspond roughly with 'literal and liberal'
interpretation i.e., theoretical or ideological approaches to interpretation; the
third, which is advocated by such continental writers as Geny, has never had
any foliowing. nor could it to do so without complete revolution in all accepted
principles of statutory interpretation.

Constructions are sometimes so restrictive and theoretical that they

excite the comment that Judges resent the 'interference' of the legislature,
and delight in revealing its imperfections. Sir Grahman Harrison, a
parliamentary draftsman points out;"we feel that the courts are not altogether
sympathetic to our objects and that they take rather a pleasure in showing
how much cleverer they are than we are, and how ridiculous our statutes are".

While it would be going too far to say that our courts read statutes "in
bad faith” observes Prof. Allen, it is difficult to resist the impression that some
Judges are always ready to think the worst of a statute and of its draftsman.
The fact is that, continues Prof. Allen "a great many enactments upon our
statute-book are not well-drawn and that they impose an exasperating task on
the courts".

Part of the reluctance of Judges to go questioning beyond the literal

meaning of words is due to their realization that guesses at the 'true intent’ of
the Legislator cannot be more than guesses, and may often be completely
mistaken.
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 Accordingly, this school of Judicial thought opines that 'if a statute is
absurd on its face, then absurd it must remain, whatever the consequences".

Lord Esher, for instance, points out, "If the words of an Act are clear, you must
follow them, even though they lead to a manifest absurdity. The Court has
nothing to do with the question whether the legislature had committal an

absurdity".

The following ruling of Lord Simonds in the House of Lords” is also

noteworthy:

"The general proposition that it is the duty of the court to find out the
intention of parliament - and not only of parliament but of ministers also
cannot by any means be supported. The duty of the court is to interpret the
words that the legislature has used; those words may be ambiguous, but even
if they are, the power of duty of the court to travel outside them on a voyage of
discovery are strictly limited.

As against the above approach, we have the liberal or ideological

approach to statutory interpretation.

The difference between the two kinds of judicial attitude has been
forcibly illustrated in recent years. Denning, L J. has repeatedly stood for the
principle which he expressed in simple terms in Henry V. Taylor8. "where

there is a fair choice between a literal interpretation and a reasonable

interpretation, we should always choose the reasonable interpretation".

In New Port Corpn. rase9, it was observed:

"We sit here to find out the intention of parliament and of ministers and
carry it out, and we do this better by filling in the gaps and making sense to
the enactment than by opening it up to destructive analysis". This view
favours Broad or logical interpretation.

*(1954) 1 Q.B

9 (1952) 2 All-E-R 1236

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 Conclusion: On the whole, It cannot be pretended, observes Prof.
Allen, that the principles of statutory interpretation form the most stable,
consistent, or logically satisfying part of our jurisprudence. Some critics like
John Willis have suggested that in view of the erratic character of the judicial
approach, we are driven to the conclusion that Judges adopt rules of
construction at their will ’as a device to achieve some desired result'. This is
the so-called 'realist' view of the matter, but it does not explain why different
Judges should desire' different results. Unless we are to assume that they are
governed entirely by their personal prepossessions which would be to do a
great majority of them a grave injustice we must credit them with honesty
trying to find the mode of interpretation which they believe to be consistent
with their duty; and thus both they and we are still left asking what 'is' the true
doctrine applicable to the case.

Considering the many problems of interpretation we are driven in the

end, to the unsatisfying conclusion that the whole matter ultimately turns on
impalpable and indefinable elements of judicial spirit or attitude. "There is
ample warrant in the settled rules of interpretation for a 'liberal' approach, and
there are abundant and bewildering examples of judicial constructions which
at one moment are treated as perfectly orthodox and at another as
dangerously latitudinarian. What seems to be needed most of all is more
scientific consistency of principle".

JUDICIAL ACTIVISM - JUDICIAL RESTRAINT: Since the establishment of

Courts as means of administering justice, law is made from two sources, the
prime source is from the legislature and the second is the Judge-made-law
i.e., judicial interpretation of the already existing legislation. The Constitution
of India also recognised these two modes of law making. Article 141 of the
Constitution of India lays down that the law as declared by the Supreme Court
of India establish the Law of the State. It thus, codifies, what was hitherto
before the uncodified convention, namely, recognition of Judge-made-law.

The process of making law by Judges is described as Judicial Activism.

Judicial Activism as distinguished from Judicial Passivism means an active
interpretation of existing legislation by a Judge, made with a view to enhance
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the utility of that legislation for social betterment. Judicial Passivism; to put it

very loosely, liberally, without an attempt to enhance its beneficial aspects by

so interpreting the existing law as to advance and progress the beneficial

extent of that legislation.

Development of Judicial Activism in India: in India, the history of higher

judiciary, and specially, of the Supreme Court of India, during the last 48
years, is the history of shifting judicial pendulum from one extreme of judicial
conservatism to the other of judicial activism. In the beginning, the role of

higher judiciary was conservative, believing in static or traditional

interpretation of the Constitution, and the Fundamental Rights; totally ignoring
the directive principles of the Constitution, designed to make India a Socialist,
Secular Democratic Republic. This role of the Supreme Court landed it in
controversy, necessitating the amendments of the Constitution, immediately
after its enactment. Prime Minister Jawaharlal Nehru was dismayed by the

conservative role of the Supreme Court, and while referring the 1st
Amendment Bill to the Select Committee, he said:

The real difficulty which has come up before us is this. The Constitution
lays down certain Directive Principles of State Policy and after long
discussion, we agreed to them and they pointed out the way we have got to
travel. The Constitution also lays down certain Fundamental Rights, Both are
important. The Directive principles of State Policy represent a dynamic move
towards a certain objective. The Fundamental Rights represent something
static, to . preserve certain rights which exist. Both again are right. But
somehow and sometime it might so happen that dynamic movement and the
static standstill do not quite fit into each other. A dynamic movement towards
a certain objective necessarily means certain changes taking place that is the
essence of movement’.

But, in spite of such exhortations by Pandit Nehru, the judiciary in early

1950s and 1960s, continued to play its traditional conservative role, which
prompted Nehru to accuse it, of being socially insensitive and irresponsible.
But Nehru did not do anything to damage the architectural plan of the
Constitution of India, and left judiciary to go on its own speed and direction.

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With Indira Gandhi, It was a different story. She had not the patience and
culture of Nehru, and wanted judiciary to act as per her wishes, when the

judiciary refused, she advocated the concept of 'committed judiciary*. The

logical end of this process of thinking was the suppression of the Supreme
Court Judges, declaration of emergency, and transfer of inconvenient High
Court Judges. The Supreme Court's judgments in Bank Nationalistation
case:10 Privy Purees case, and Kesavanand Bharati's case11 and lastly India

Gandhi's Election Petition case, played catalystic role in such development in

India. The judiciary like two other organs of the Government was at the verge
of falling in line with Indira Gandhi's concept of 'committed' judiciary, but
Justice H.R. Khanna's minority judgment in A.D.M. Jabalpur's case saved it.
The suppression of Justice H.R. Khanna, further nurtured the concept of

judicial activism, and it was really out of the chaos of emergency that the
judiciary emerged stronger and confident.

In the emergency era, which we can call, the first important phase of
Judicial Activism, the Supreme Court of India delivered many land mark
judgments concerning personal liberty, extending the frontiers of Article 21 of
the Constitution of India. No doubt, the beginning of this kind of Judicial
Activism was made by Justice Fazal Ali in his minority judgment in Gopalan's
case in 1950,12 but it was in the late 1970's and early 1980s that Justice

Krishna Iyer, Justice Bhagwati, Justice Chinnaipa Reddy and Justice D.A.
Desai, strengthened it, and took it to further greater heights. This
development enhanced the prestige of Indian judiciary, and put it at par with
the judiciaries of other great democratic countries of the world. Maneka
Gandhi's case (1978)13, laying down the doctrine of un-enumerated
Fundamental Rights, Sunil Batra’s cases (1978)14, defining the parameters of

“(AIR 1970 SC 564)

“1973 AIR 1973 SC 1461

12 AIR 1950 SC 27

“AIR 1978 SC 957

14 AIR 1978 SC 1675

143
prison jurisprudence, Hussainara Khatoon’s case (1979)15 extending the

ambit of Article 21 of the Constitution, belongs to this Judicial Activist period

in the Judicial history of India.

The most important contribution of Judicial Activism of this period was,

the emergence of public interest litigation. The doors of higher judiciary were
opened to the poor, neglected prisoners and other deprived sections of the

Indian Society. With the expansion of the scope of writ jurisdiction, by the
Activist Judges, more and more PIL cases relating to other social maladies

came to be filed in the Supreme Court and the High Court. Thus, in the
course of the late 1980s and early 1990s, one saw a spate of myriad
litigations with regard to rights of prisoners, banning of injurious drugs, plight
of Vrindavan Widows, school for children of prostitutes, child labour, filling up

of vacancies of Judges in the Supreme Court and the High Courts, and State
of Mental Hospital's in Bihar. This would not have been possible with the
traditional and conservative approach to social problems of vast magnitude.
The people had a glimpse of justice, because of this trend of Judicial
Activism. The protagonists of legal justice were not happy with this trend, as
the Courts were flooded with PIL cases, and the Courts were sometimes
helpless to deal with such problems, which were beyond their control and
jurisdiction. The trend of the Courts in awarding compensatory and exemplary
damages against the State in custodial death cases was not much liked by
the Executive. So, with the departure of this Activist group of Judges, the
position of PIL cases became unclear for some time.

The second most important period of Judicial Activism started with the
orders and judgments of Justice of Kuldip Singh, protecting the Taj Mahal and
Delhi from environmental pollution; and Justice

J.S. Verma's crusade against corruption at high places. In the environmental

chaos, which was worsening in India day by day; the judgements of Justice
Kuldip Singh became household news. In the same way. Justice J.S.
Verma's method of closely monitoring the Hawala cases against leading

15 AIR 1979 SC 1360

144
politicians, received thundering applause of the people and landed him on
the cover page of India Today. This vigorous judicial trend shows that the
Judges were not willing to sit back in their cost chambers, and watch the
subversion of the rule of law. Justice Verma had left much behind his
judgments in Babri Masjid case and Hindutava case, where he had taken the
view that the judiciary should not be too interfering by venturing into areas
and issues, which were not judicially manageable. In many cases, like
vehicle pollution cases in Delhi, and out of turn allocation of Government
houses case, it became difficult to implement such orders, and these had to
be modified and reviewed. The politicians, many of them who were hauled up
in corruption cases, started criticising Judicial Activist trend of the Judges,
Many critics started saying that these Judges have crossed the propriety to
take over the administration, which was beyond the scope of their jurisdiction,
and neatly defined role in the Constitution of India. The question of Judges'
accordingly, in a democratic set-up, was raised on the point that Judges were
not democratically elected. So, they have no right to lay down the policy
matter to be followed by the Executive. It is the function of the Legislature to
lay down the law for implementation of the policies of the Government. So,
some of the controversial judgments became handy to discredit Judicial
Activism, and this concern deepened more in the light of an expositional
growth of personality based judicial decision making. The popularity of these
judges among the people aroused hostile jealousy of their critics as well as of
their colleagues. The happening in the Supreme Court of Pakistan in 1977
also, began to be quoted by certain critics. With the departure of Justice
Kuldip Singh and Justice J.S. Verma from the Supreme Court, the trend of
Judicial Activism lost much of its earlier momentum. Many judgments of
these present Judges were reviewed and reversed later on. The present
mood of the Supreme Court is that of dignified restraint after a long period of
Judicial Activism. It has been realised by the Supreme Court in many of its
recent judgments that it ought not to step into the domains of the Executive
and the Legislature.

Judicial Activism cannot be used for usurping the powers of the

Executive or the Legislature. It has been consistently laid down by the

145
Supreme Court of India that there cannot be writ of mandamus from any

Court directing the Legislature to legislate on the given subject. The power to
legislate is squarely conferred on the Legislature by the Constitution. No such
legislative power is given to the Courts by the Constitution. The legislative
action done by the Courts is to be derived from its judicial activism done in
permissible limits for proper and complete interpretation of the provisions of

law. Judicial Activism cannot be used for filling up the lacuna in Legislation or
for providing rights or creating liabilities not provided by the Legislation. In
this regard, the judgments of the Supreme Court in relation to admission toi

the Post Graduate education in Medical Sciences need reconsideration.

Those judgments starting with the judgment in Prakash Kumar Jain's case,16

and then three or four directions issued by Dr. Dines Kumar’s case appear to
be yet another avoidable exercise in Judicial Activism, in that period, the
Supreme Court of India, under the stewardship of Justice P.N. Bhagwathi as
the Chief Justice, had practically undertaken judicial administration of
medical education in India. The Supreme Court went on to lay down the
manner in which Post Graduate seats in different Post Graduate Medical
Institutions in India would be filled in, the manner in which the examination for
filling those posts are to be conducted, the manner in which the seats are to
be distributed in every discipline, and the manner in which the question of
reservation for backward class candidates would be dealt with. All these, was
clearly in the domain of Executive administering the Department of
Education. It was certainly a specialised field which ought to have been left
for governing to the Specialised Bodies like the Indian Medical Council. To
the same effect are the cases in the matter of capitation fees dealing with
education in Engineering Branches in particular. In deciding all these cases,
and giving numerous directions in those cases, it is respectfully submitted
that the Supreme Court has transgressed the limits under the spacious cover
of Judicial Activism.

Similarly, the recent judgments in the matter of Animal Protection also

needs consideration. The need for Animal Protection cannot be exaggerated

“AIR 1984 SC 1420

146
yet, not court can, by its judgment, legislate the requirements of

environmental protection. To do so is excessive exercise of Judicial Activism.

INTERPRETATION OF TAXING AND PENAL STATUTES: The principle of

Construction of fiscal statute does not differ from that of any other kind of law.
Lord Calms in Paring ton v. Attorney General,17 H.T. Dalai v. Borough

Municipality18 concluded that in determining of the liability of a subject to tax,

one must have regard to the strict letter of the law, not merely to the spirit of

the statute or the substance of the law. Tax can only be imposed when the

case falls strictly within the provisions of the law.

Strict Construction - Taxing enactments should be strictly construed

and the right to tax should be clearly established. In construing such Acte, we
have no governing principle of the Act to the look at. We have simply to go to
the Act itself, to see whether the duty or tax claimed is that which the
Legislature has enacted19.

Conditions precedent tot the imposition of any tax should be strictly

complied with Municipal Council v. M & Rly. Co20. The Courts should adopt of

all constructions, the most favourable to the subject Gappu Lai v. Income-tax
Commissioner.21

The well accepted view of law is that if a provision of a taxing statute can
be reasonably interpreted in two ways, that interpretation which is favourable
to the assessees, has got to be accepted (Income tax Commissioner, West
Bengal v. Naga Hills Tea Co.. Ltd. AIR 1973 S.C. 2524, (1973) 4 S.C.C.
200).Subjects to be taxed be brought not merely within the spirit but within the
letter of the law. The subject is not to be taxed unless the words of the taxing

17 (1869) L.R.H.L. 100(122)

18A.I.R. 1976 S.C. 1946

19 Lord Advocate v. Fleming, 1897 A.C. 145

20 AIR 1929 Mad. 746

21 AIR 1940 AIL 147 (158)

147
statute unambiguously Impose the tax on him (Russel v. Scot)22.

Machinery Sections - In a taxing Act, there are certain sections which

impose a charge on the subject while there are other which deal merely with
the machinery of assessment. There is no absolute rule that a liability cannot

be imposed by any* provisions outside the main section.

Limitation to the Rule of strict construction: The principle of strict

construction applicable to taxing statute does not, however, mean that where
the subject falls clearly within the letter of the law, the court can avoid the tax
by putting a restricted construction on same supposed hardship23 or on the

grounds that the tax, or penalty imposed is heavy or oppressive.

The rule of strict construction does not negative the applicability of the
well-known principle that a person who claims an exemption has to establish

it, and there is ample authority for the view that this principle applies to
exemptions granted in taxing laws as well (G.P. Singh, on Interpretation of
Statute). The Courts, in dealing with taxing statute, will not presume in favour
of any special privilege of exemption for taxation.

Lastly, there is to be borne in mind that the rule of strict construction

applies primarily to the charging provisions in taxing statute and has no
application to the machinery provisions.

Machinery provision means the procedure for calculation and collection

of taxes. These are to be construed by the ordinary rules of construction.

While construing machinery section of a taxing statute, it should be

strictly observed that the construction should effectuate the liability imposed
by charging section of the statute and at the same time it should render the
machinery workable24.

22 (1948) 2 All. E.R. 1

23(I.R.C.V, Bladnonch Distiller Co., 1948 1 All. E.R, 616)

24Gursahai v. I.T.C., AIR 1963 S.C. 1062

148
Strict interpretation of Penal Statutes: - The rule that statutes imposing
criminal or other penalties should be interpreted narrowly in favour of the

person proceeded against was more rigorously applied in former times.

It was held in London and Country Commercial Properties Investments,

Ltd. v. Attorney-General, t hat the principle applied in construing a Penal Ac t
is that if, in construing the relevant provisions, there appears any reasonable

doubt or ambiguity, it will be resolved in favour of the person who would be

liable to the penalty.

If there is a reasonable interpretation which will avoid the penalty in any

particular case we must adopt that construction. If there are two reasonable
constructions we must give the more lenient one. That is the settled rule for
the construction of penal sections. In every case the question is simply what is
the meaning of the words which the statute has used to describe the
prohibited act or transaction? If these words have a rational meaning, that is

their meaning, and such meaning is not to be extended by any reasoning

based on the substance of the transaction. If the language of the statute is
equivocal and then are two reasonable meanings of that language, the
interpretation which will avoid the penalty is to be adopted. The Court must
always see that the person to be penalised comes fairly and squarely within
the plain words of the enactment.

It is a well recognised rule of construction of Penal Statute that where

an equivocal word or ambiguous sentence haves a reasonable doubts of the
meaning which the commons of interpretation failed to solve, the benefit of
doubt should be given to the subject and against the legislature which has
failed to explain itself25.

The above principle laid down by Maxwell has been invariably followed
by the High Courts and lately by the Supreme Court (Tolaram v. State of
Bombay26).

25 (Maxwell: Interpretation of Statutes, 11th edition, page 274)

26 AIR 1954 S.C. 496

149
 Maxwell says, the strict construction of penal statutes seem to manifest

itself in four ways

i) in the requirement of express language for the creation of an offence;
ii) in interpreting strictly words setting out the elements of an offence;
iii) in requiring the fulfillment to the letter of statutory conditions precedent to
the infliction of punishment; and
iv) in insisting on the strict observance of technical provisions concerning
Criminal Procedure and Jurisdiction.

In Mobarik Ali Ahmad v. State of Bombay,27 the Supreme Court has

held that:
"It is not necessary and indeed not permissible to construe the Penal
Code of India at the present day in accordance with the notions of criminal
jurisdiction prevailing at the time when the Code was enacted. The notions to
this matter have very considerably changed between then and now. it is
legitimate to construe the Code with reference to the modem needs, wherever
this is permissible unless there is anything in the Code or any particular
section to indicate the contrary. And accordingly it is a well settled rule that a
penal, statute, not being a mere rule of morality of ethics, must be construed
strictly, in favour of the subject'.

In Sajjan Singh v. State of Punjab,28 the Supreme Court has held that:

"If the words are capable of two constructions one of which is more favourable
to the accused than to the other, the Court will be justified in accepting the
one which is more favourable to him. The rule that penal statutes must be
construed strictly is not only a sound one but the only consistent without free
institutions. It is founded on the tenderness of the law for the rights of the
individuals on the plain principle that the power of punishment is vested in the
Legislature, not in the judiciary. It is the Legislature, not the Court, which is to
define crime and ordain its punishment”.

271958 S.C.328 (359)

28 AIR 1964 S.C. 464, 468

150
 Supreme Court has held in the Case of M.V. Joshi v. M.U. Shlmpi29
that in construing a penal statute, it is a cardinal principle that in case of doubt
the construction favourable to the subject should be preferred. But these rules
do not in any way affect the fundamental principles of interpretation, namely,
that the primary test is the language employed in the Act and when the words
are clear and plain the Court is bound to accept the expressed intention of the
Legislature. No doubt the rule of strict construction in the case of penal statute
was more rigorously applied in former times, and the tendency of modern
decisions, upon the whole, is to narrow materially difference between what is
called a strict and a beneficial construction. The rule of strict construction
must yield to the paramount rule that every statute is to be expounded
according to its express or manifest intention.

b) Rules of statutory interpretation:

Literal Construction of Statutes - A safe rule - It is a well, recognised
principle of construction that a statute must be construed in the ordinary and
natural meaning of the words and clauses. The safer and more correct course
is to take the words themselves and arrive, if possible, at their meaning
without, in the first instances, references to cases. If the words of the statute
are in themselves precise and unambiguous, then no more is necessary than
to expound these words in their natural and ordinary sense. The rule is that
when the language is plain and admits of one meaning, no question of
construction of a statute arises. The Supreme Court of India is of the opinion
that clarity in language of statute does not allow reading down of the statute.
Clarity of language and intention of Acts forbids court to add words to the
language of the Act while interpreting the same.

If a word in a statute is capable of more than one meaning in ordinary

parlance, then the courts must adopt the meaning which harmonizes with the
contents and fulfils the object of the enactment. In such cases, there are two
principles to be followed firstly, external evidence from circumstances like
previous legislation or decision of courts, and secondly internal evidence from

29 AIR 1961 S.C. 1494(1498)

151
the Act itself, if a word is capable of more than one meaning from expression
it should not be subjected to an interpretation dissociated from the context
and the proper procedure is to attach that sense to that word which is in
conformity to the extent. The scheme of legislation must be considered in
assigning the meaning to a particular word which is capable of more than one
meaning.30

Spirit of the law - An unsafe guide - As held by the Supreme Court in

Rananjaya Singh v. Bajinath Singh,31 the spirit of the law Is an elusive and
unsafe guide and the supposed spirit cannot be given effect to in opposition to
the plain language of the Act. In the language of Viscount Haldane, L.C. we
cannot depart from the natural meaning of the words, unless reading the
statute as a whole, the context directs us to do so. Viscount Simon, c., also
says that the golden rule is that the words of a statute must prima facie be
given their ordinary meaning.

To adhere as closely as possible to the literal meaning of the words

used as stated by Lord Cranworth is a cardinal rule, from which if we depart,
we launch into a sea of difficulties which it is not easy to fathom.

It is a cardinal rule that the section in question is to be read in toto as

one unit without overlooking any part of it. While dealing with a statute, Act
and Rule are to be read together the only real meaning of the statute can be
arrived to.32
It is noteworthy here that the hardship of the injured party cannot be
mitigated by the court by taking recourse to liberal construction when the
language is clear and explicit and the words used are plain and unambiguous.
In these conditions court is bound to construe them in their most ordinary
sensed.

30 Inspector of Mines v. Thapar, AIR 1961 SC 838

31 AIR 1951 SC 749

32 [Kalawatibai v. Soiryabai, AIR 1951, SC 1581]

152
 Intention of Parliament to be deduced from the language used Law of

interpretation of statutes is mainly intended to gather the intention of the

legislature. There are two conflicting opinions of the jurists regarding intention
of the legislature. Kelson and Sedwick are of the opinion that there is nothing
called the intention of the legislature. They base the conclusion upon the view

that in the process of passing bill in the legislative assembly, no one cares to
understand the exact applications of the expressions used in the bill. On the
other hand, authors like Crawford are of the opinion that the intention of the

legislature really exists.

It was now established that the primary duty of Courts in the

interpretation of statutes is to gather the intention of the legislature.

The rule of literal construction further requires that "nothing is to be

added to or taken from a statute unless there are strong grounds to justify the
inference that the legislature intended something which is omitted to express".
We are not entitled, said Lord Loreburn, L.c., to read words into an Acts of
Parliament unless clear reason for it is to be found within the four corners of

the Acts itself.

In order to ascertain the true intention of the legislature the court must
not look at the words used by the legislature, but also have regard to the
context and the setting in which they occur. The context and the collection of
the words may induce the Court to depart from the ordinary meaning. For
these may show that the words were not intended to be used in the sense
which they ordinarily bear Umed v. Raj Singh33. It is a well established rule of

construction that the intention of the legislature must be found by reading the
words and clauses in statute.

It is not the duty of the Courts to busy' themselves with supposed

intentions when the meaning of the words is plain".34

33 AIR 1975 S.C. 43

34 Per Lord Atkin in Narayanswami v. Emperor, AIR 1939 P.C. 47

153
 While interpreting an Act it must be construed as a whole - Acts must
be construed as a whole, Guidance with regard to the meaning of a particular

word or phrase may be found in other words and phrases in the same section
or in other sections although the utility of an extensive consideration of other

parts of the same statute will vary from case to case.

No cannon of statutory construction is more firmly established, than

that the statute must be read as a whole. This is a general rule of construction
applicable to all statutes alike which is spoken of as construction ex-visceribus
actus. This rule of statutory construction is so firmly established that it is
variously styled as elementary rule, and as-a settled rule. The only recognized
exception to this well-laid principle is that it cannot be called in aid to alter the

meaning of what Is of itself clear and explicit.

Justification of the rule against reference being made to legislative

history, etc. - In the past reference was occasionally made to "what those who
framed a statute or individual members of the legislature, it find out what was
intended by them. The modem rule precludes this tendency. It is held by
many authorities including Lord Halsbury that the parliamentary history of
legislation is not a permissible aid in construing a statute, and therefore
reliance on the beliefs and assumptions of those who frame the Act are no
sure aids to the interpretation of a statute. The rule against reference being
made to legislative material, or to the beliefs of the legislators may be justified
on the grounds that the views of the individual member who brought the bill
are not supposed to control its construction, and secondly the 'view'
expressed by the members of either House in the course of debate,
attempting to influence the future interpretation of the statute, cannot be relied
on as a safe aid to construction. Therefore, the safest course is to depend on
the words of a statute used in the particular context. But the words used by
the legislature do not always bear a plain meaning. Moreover, judges quite
often differ on the issue whether certain words' are plain and. even when there
is an agreement that the words are plain, difference of opinion may result on
the question as to what the plain meaning is. In case of doubt, therefore, it is
always safe to have an eye on the history, object and purpose behind it.

154
 SUMMARY: Interpretation according to ordinary and grammatical
meaning of words - A primary duty of the Court - It should be the primary duty
of the court to interpret words used in a statute according to their ordinary
grammatical meaning, and where words have acquired a technical meaning,
because of their consistent use by the legislature in a particular sense, they
should be understood in that sense when used in similar context in
subsequent legislation. This is also sometimes referred to as the legal sense
of such words. In interpreting an expression in the legal sense, we have to
ascertain the precise connotation' which it possesses in law.

On grammatical construction, the Supreme Court said that, 'the law is

not a brooding omnipotence in the sky" but a pragmatic instrument of social
order. It is an operational air-controlling economic life and interpretative effort
must be in used with the statutory purpose. No doubt, grammar is a good
guide to meaning but a bad master to dictate, notwithstanding the traditional
view that grammatical construction is the golden rule.

Meaning of words in absence of definition - Where any word has not

been defined in the statute particular aid of dictionaries may be taken. The
dictionary meaning of a word cannot be looked at where that word has been
statutorily defined or judicially interpreted but where there is no such definition
or interpretation, the court may take the aid of dictionaries to ascertain, the
meaning of a word in common parlance, bearing in mind that a word is used
in different senses according to its context and a dictionary gives all the
meanings of a word, and the Court has, therefore, to select the particular
meaning which is relevant to the context in which it has to interpret that word.

Limits of Literal Interpretation r Whenever the help of literal

construction is sought for interpreting a statute, following limits should always
be kept in mind as the 'plain meaning rule' cannot go beyond a. certain limit.
1) General clauses Act 1897 prescribed certain meanings for terms and,
as a general rule they are to be accepted unless a contrary intention is
specified in the statute. Besides most of the modern statutes, have
interpretation section which provides special meaning to certain terms used in
the Act.
155
 2) The words of legal import will be understood .in their legal sense, that

is to say, we are to ascertain the precise connotation they possesses in Law,

Technical Words are to be given their ordinary technical meaning if there is

nothing specified in the statute itself.

3) Meaning of the words undergoes a change in course of time. The
words are to be given the meaning similar to that which the framers intended

to, at the time of framing the statute.

4) Finally it should always be kept in mind that words acquire

significance from their context.

Mischief rule - What it means - The rule in Heyden's case is popularly

known as 'mischief rule'. The intention of this rule is always to make such
construction as shall suppress the mischief and advance the remedy. In order,
therefore, to interpret a statute properly it would be necessary, as re-affirmed

by Lindley, M.R. to consider how the law stood when the statute to be
construed was passed, what the mischief was for which the old law did not
provide, and the remedy provided by the statute to cure that 'mischief.

In Heydon's case in 1584 it was resolved by the Barons of the

Exchequer that for the sure and true interpretation of all statutes in general
(be they penal or beneficial, restrictive or enlarging of the common law) four
things are to be considered -
1) What was the common law before the making of the Act?
2) What was the mischief and defect for which the common law did not
provide?
3) What remedy the Parliament had resolved and appointed to cure the
disease of the commonwealth; and

4) The true reason of the remedy, and the office of the judges is always to
make such construction as shall suppress the mischief and advance the
remedy.

When this rule to be applied - it is now held by all authorities that in

construing a statute it is not only legitimate, but highly convenient to refer both
to the former Act and to the ascertained evils to which the former Act has
given rise to the latter Act which is alleged to have provided the remedy. In
156
case of doubt, it is always advisable to refer to the object and purpose of the
statute. This aspect of purpose is the very foundation of the rule in Heydon's

case.

In the well-known English case Smith v. Hughes,35 the question was

whether the prostitutes who attracted the attention of the passersby from
balconies, or windows were soliciting in a street within a Section 1 (1) of the

Street Offences Act, 1959. Lord Parker C.J. held, this was an act intended to
clean up the streets to enable the people to walk along the streets without
being molested or solicited by common prostates. Viewed in the way, that
precise place from which a prostitute addressed her solicitations to somebody

walking in the street became irrelevant.

The Supreme Court in the Bengal Immunity case36 applied this rule in

construing Article 286 of the Constitution. After referring to the state of law
prevailing in the provinces prior to the Constitution and also the chaos and
confusion by indiscriminate exercise of the taking power by different
Legislatures founded on the theory of territorial nexus, S.R. Das, C.J.,
observed that it was to cure the mischief of multiple taxation and to preserve
the free flow of inter State trade or commerce in the Union of India regarded
as one economic unit without any provincial barrier that the constitution
makers adopted Article 286.

In the case of Shiva Narain v. State of Madras,37 the principle of

mischief rule was applied. In this case the interpretation of .section 2( c) of

Forward Contracts (Regulation) Act, 1952 was evolved. The Supreme Court
held that if the expression "Forward Contracts" in section 2{c) is not construed
so as to include speculative contracts which ostensibly are for delivery of
goods the provisions of the Act would be nugatory.

“(1960) 1 W.L.R. 830

“A.I.R. 1955 S.C. 661

37 A.I.R. 1967 S.C. 986 (989)

157
 It is a sound rule of interpretation that a statute should be so construed
as to prevent the mischief and to advance remedy according to the true

intention of the makers of the statute.

Supreme Court further added that in construing Section 2(c) of the Act
and in determining its scope it is permissible to have regard to all such factors
as can legitimately be taken into account in ascertaining the intention of the
Legislature, such as the history of the statute, the reason which, led to its
being passed, the mischief which, it intended to suppress and the remedy

provided by the statute for curing mischief.

Mischief rule uncalled for when words are capable of one meaning only
- Unless there is any ambiguity in the word to be construed the application of

the mischief rule is uncalled for Gajendragadkar, J., in Kanailal v.

Paramnidhi38 had stated that the rec°1!rse to object and policy of the Act or

consideration of the mischief and defect which the Act purports to remedy is

only permissible when the language is capable of two interpretations.

In selecting, however, the true meaning, regard must be had to the

consequences which result from adopting the alternative construction. A
construction that results in hardship, inconvenience, injustice, absurdity or
anomaly etc., has to be avoided and preference to be given to such
construction which avoids such results. The rule no application when the
words are susceptible of one meaning only.

To sum up. Heydon’s case is applicable only when the words in

question are ambiguous and reasonably capable of more than one meaning.
This rule has no application when the word is susceptible of one meaning and
no alternative construction is reasonably open.

Golden rule of construction - What it means - Max-well describes

the so-called 'golden rule' as a modification of literal rule. This means that
when the literal interpretation leads to certain absurdity or unreasonable

“A.I.R. 1957 S.C. 907

158
result, it Is permissible to interpret the provisions of the statute in a manner so
as to lead to a reasonably practicable result. Departure from the literal

construction is not precluded if it better expresses the intention of the

legislation. According to Parke B, the language of a statute may be varied or

modified to avoid absurdity or repugnance where grammatical construction

leads to such absurdity or anomaly.

The application of the rule is only permissible to the extent it avoids

such absurdity, anomaly, and inconvenience and no further. In other words,
the rule is to be applied, having regard to the consequences. This rule has no
application when the words are susceptible to only one meaning and no

alternative construction is reasonably open.

Case Law:
An application of this rule is well illustrated in the case of Lee v. Knopp39,

where Winn. L.J., interpreted the word "stop" in Section 77 (1) of the Road
Traffic Act (which requires the driver of motor vehicle to stop after an
accident) to mean that the driver of the vehicle shall stop it and remain where
he has stopped it from such a period of time as may be required by the
persons in authority to obtain information directly and personally from him as
necessary under the Section.
The Supreme Court has held in Veluswami v. Raja Nainar,40 that a

construction giving rise to anomaly should be avoided.

The grammatical and Ordinary sense of the words is to be adhered to

unless that would lead to some absurdity or some repugnance or
inconsistency with the rest of the instrument in which case the grammatical
and ordinary sense of the words may have to be modified so as to avoid that
absurdity and inconsistency, but no further LGrey v. Pearson41. The Principle

of these rules is not limited to the interpretation of statutes alone but it has
been extended to the interpretation of documents also 42

39 (1967) Q.B. 442

40 AIR 1965 SC 422

411857 H.L.C. 61
42 Arora v. State of U.P. AIR 1964 S.C. 1230.
159
 In the case of Dilip Kumar v. State of Madhya Pradesh,43 it was held by

the Supreme Court that if two constructions are possible upon the language of
the statute, the courts must choose the one which is consistent with good

sense and fairness and eschew the other. Which makes its operation unduly

oppressive, unjust or unreasonable, or - which would leads to strange

inconsistent results or otherwise introduce an dement of building uncertainty

and practical inconvenience in the working of the statute.

Inconvenience hardship etc - Not a criterion for evading grammatical

construction - The Courts are not normally to depart from the rule of literal
construction on the mere plea of inconvenience it might cause. According to
Brett, L.J., the inconvenience must not only be great, but it must be an
absurd inconvenience to justify departure from the rule of grammatical

construction. Lord Moulton has said that there is a danger that it may
degenerate into a more judicial criticism of the propriety of the acts of
legislature.

EXTERNAL AIDS TO CONSTRUCTION: It is lack of clarity and ambiguity in

the statutory language which allows the use of interpretative process to find

out the intention of the legislature. Unless there is ambiguity in the statutory
language no help of any interpretative process can be taken to unfold the
legislative intention in order to find out real meaning of the words used in the
statute. Although it is a primary rule of interpretation to gather the intention of
the Legislature from the words used in the enactment, sometimes, it becomes
necess.ary to look at the external or historical facts or at the logic of events
for the purpose of obtaining an objective understanding of the scheme and
frame work of the enactment which has relation to those events. All these
serve as an external aid to the interpretation of a statute. Among the external
factors which are often resorted to, the following may be specially mentioned:

Historical fact and surrounding circumstances - The historical facts and

surrounding circumstances of a statute means the course of events which

43 AIR 1976 SC 135

160
give rise to the enactment. The court is entitled to take into account such
external or historical facts as may be necessary to understand the subject-

matter of the statute or to have regard to the surrounding circumstances. An

interpretator may take into account such facts or the events of the time which

may help him to consider whether the statute was intended to alter the laws or
to leave it exactly where it stood before. The Federal Court of India in King-
Emperor v Banarsi Lai44, held that the history of legislation and the facts which

give rise to the enactment may usefully be employed to interpret the meaning

of a statute, though they do not point to the conclusive argument.

The authorities like Sir George Jessel M.R. or the Earl of Halisbury L.C.
have also advised that the courts are not to be oblivious of the history of law

and legislation: but they have also cautioned the courts not to construe an Act
of Parliament by the motives which influenced the Legislature. What is
permissible for the court, as per Lord Atkinson is to have a regard to the state
of things existing at the time the statute was passed and to the evils it was
designed to remedy.

Again where it is important to ascertain ancient facts of a public nature,

recourse may be had to historical works, pictures, engravings and similar
ancient documents and references may also be made to the contemporary
treaties which may have influenced the law makers In using particular phrase
in the statute. In this context it was fully justified to have the guidance from
Mills. 'Political Economy1 for interpretation of the phrase, direct taxation in the
case of Atlantic Smoke Shops Ltd. v. Conton45.

"In the interpretation of older statutes it will be useful to remember the

well-known historical facts that led to the passing of the Act. It is a settled
rule of construction that the interpreter should place himself as far as-

possible in the place of those whose words he is interpreting and it will only
be possible to construct the statute correctly only by reference to the
circumstances existing at the time when the statute was enacted".

44 AIR 1943 FC 361

4S(1943) 2 All E.R. 393 (P.C.)

161
Parliamentary History: This has reference to the various proceedings taking
place in the Parliament or the Assembly during the process of law making.
The draft bill, the changes introduced- by the members or by the select

committee and the speeches made by the Parliament or the Assembly come

under this head.

The Parliamentary history of enactment, according to modern English

practice is not a permissible aid in construing a statute. In other words, the

intent of the Parliament which passed the Act is not to be gathered from the
Parliamentary history of the statute. Similarly, this rule applies to the reports
of the debates and resolutions passed by the either House of the Parliament.

In the past, however, it was a practice to refer to what those who

framed a statute intended to do by the enactment. Even an individual
legislator was sometimes referred to for determining the object which,
prompted him to introduce the bill. For example, Lord Nottingham who himself
brought the statute of Frauds in the House of Lords - referred to it, claiming to
know the interests with which it was introduced Ash v. Abdy, 1678, But this
practice is no longer favoured by the English Courts Lord Denning has
summed up the present tendencies in Escogine Properties Ltd. v. I.R.C.
(1958) where he has remarked that the practice of the English Courts is not to
refer to legislative history of an enactment as is the practice in the United
States of America. "All that the courts can do, according to Lord Denning, is to
take judicial notice of the previous state of the law and of the other matters
generally known to the well informed people”.

In this context, what has been done by Lord Uojohn in Beswick v.

Beswick,46 by his reference to proceedings of the joint committee of both

Houses on consolidation Bill was an exception to the normal practice of the

English Courts.

46 (1968) A.C. 58

162
External aid to the interpretation of Statutes: 1) Dictionaries and text
Books; (2) Government Publications and Reports (3) Foreign decisions; and

(4) Judicial, administrative or Commercial Practice, etc.

(1) Dictionaries and Text Books - The courts occasionally rely on the

dictionary meaning of certain terms as used in the Act of Parliament or a

Statute. Although dictionaries are not to be taken as the authoritative

exponents of the meaning of words used in Acts of Parliament, the courts are
not debarred from using dictionaries, since, it is a well established rule of

interpretation to take the words in their ordinary sense, and the dictionaries
give their ordinary meaning. As per Lord Coleridge who says that it is a well-
known rule of courts of law words should be taken to be used in their ordinary
sense and we are therefore sent for instruction to these books. In certain
cases English courts relied on dictionaries when considering the meaning of
the words, ’park', 'rubbish', ’document* 'practicable' 'machinery*, 'hardware' and
'curtilage' (Quoted by Maxwell):

Our Supreme Court and High Courts also refer to dictionary meanings
of words when no judicial interpretation of such items are necessary. The
meaning of the term as given by the dictionaries sometimes lend a strong
support to legislative intention and in such cases the courts do not hesitate to
construe the words in their ordinary meaning as given in the dictionaries. Thus
the Supreme Court resorted to the dictionary meaning of the terms 'export'
'import' and 'transit in the case of the Empress Mills v. Municipal Committee,
Wardha47.

When the aid of dictionaries may be taken - The dictionary meaning of

a word cannot be looked at where that word has been statutorily defined or
judicially interpreted, but where there is no such definition or interpretation,
the court may take the help or aid of dictionaries to ascertain the meaning of a
word in a common parlance, bearing in mind that word is used in different
senses according to its context and a dictionary gives all the meanings of a
word, and the court has, therefore, to select the particular meaning which is
relevant to the context in which it has to interpret that word.

47 AIR 1958 SC 341

163
 However, much care Is needed by the Court when the dictionaries are

used for interpretation of terms. For instance, meanings given in American

dictionaries may be of little assistance in regard to the English usage of the

term vice versa, and more so in the context of Indian Society. Dictionaries are
mainly meant for consultation in the absence of any judicial guidance or
authority. As quoted by Maxwell Lord Macnaughten while construing the word
'mine' in Midland Railway Co. v. Robinson,48 as defined by Dr. Johnson (to

include quarry) remarked that the world was used in the sense which every
English Judge who had occasion to consider the meaning of the world before
Farie's case (1888) was decided, took to be its ordinary signification. But on
such a point the opinion of judges are' a safer guide than any definitions or
illustrations as found in the dictionaries. Further the utility of dictionary
definition is limited where judge and counsel use different words, for instance,
the Judge using the Webster, and the Council using the Oxford. When
construing the meaning of a phrase, such as 'moral turpitude' it will be quite
fallacious to seek .the meaning of 'moral' and then of 'turpitude' and combine
the meaning of the both together. The phrase moral turpitude has by now
acquired a special meaning of its own. In Webster's Dictionary moral turpitude
is defined as quality of crime involving grave infringement of the moral
sentiments of the community. The judicial interpretation of the phrase as given
by the Allahabad High Court is that "it means anything done contrary to
justice, honesty, modesty or good morals. It implies depravity, wickedness of
character or disposition of the person charged with the particular misconduct.
Baleswar Singh v. D.M. and Collector, Benaras49.

In the case of Wealth Tax Commissioner Y. Courts of Wards, Paigh50 it

was held by Supreme Court that it is for the courts in discharge of their duties
to assist themselves by any literary help they can find, including, of course,
standard authors and reference to well-known and authoritative dictionaries
but in selecting one out of the various meanings regard must always be had to

48 (1890) 15 App. Cas. 19

49 AIR 1952 All 71

“AIR 1977 SC 113

164
the context in which the word has been used in the statute. The modern
tendency is not to regard the text books on law as sanctum sanctorum and
the court is entitled to disagree with the statement made in a text book,
wherever it thinks it right to do so.

2) Government Publication and Reports - Government publications

and reports are often referred to by the Courts to ascertain the surrounding
circumstances or to the historical facts leading to the sponsoring of the bill.
Generally these are classified in two groups, viz., (1) Reports of Commissions
and Committees proceeding the legislation, and (ii) other publications
(documents) .etc.

The reports of Commissions preceding the statute are often consulted

by the courts to find out the mischief or the evil intended to be remedied but
these are not to be taken to be the dependable authority for construing a
statute. The English courts in the 19th century were averse to the acceptance
of such reports for the purpose of construction. In the famous case of Assam
Rlys and Trading Co. Ltd. v. I.R.C.51, the House of Lords refused to accept the
recommendations from a report of Royal Commission on Income tax sought
to be introduced in the arguments by the counsel, on the ground that the
report of commission is far removed from value as evidence of intention,
because it does not follow that their recommendations were accepted. Lord
Wright, speaking for the House, differentiated this case from Eastman case
(1898) A.C. 571 where Lord Halsbury, it is evident that treating the report an
extraneous matter to show what were the surrounding circumstances with
reference to which the words were used.

The Assam case as cited above indicated a middle course, namely,

reports of the Commissions of Committees were not to be admitted to show
the intention of the Legislature, but "to show what was the mischief or evil
installed to be remedied in the same way as other evidence of the historical
setting of legislation was received". (Maxwell). Our Supreme Court, in

51 (1935) A.C.445

165
Gopalan's case,52 also referred to the report of the Drafting Committee in

interpreting Article 21 of the Constitution.

The modern tendency has been illustrated in the following words of

Lord Denning, M.K. in Leafing v. Cooper53.

"It is legitimate to look at the report of such a Committee, so as to

see what was the mischief at which the Act was directed, to get the

background against which the legislation was enacted. This is always a great
help in interpreting it... The recommendation or report has nothing to do more
than that for the simple reason that Parliament may. and often does, decide to
do something different to cure the mischief. The words used by the Parliament
must be interpreted as they stand without much regard to the
recommendations of the Committee. As regards other documents, the law is
clear. It does not come into the picture unless the documents are expressly
referred to in the statute. The courts are adverse to the use of even
explanatory memoranda prefixed to Bills.

Supreme Court of India also made use of such reports in several

cases. Application was made to ascertain the facts existing at the time of the
legislation.

Administrative Interpretations - So far as administrative

interpretation of any rule, regulation or Act is concerned no importance is
attached to it. They may be taken to be a guide to the construction of statutory
provisions. They can never be taken to be conclusive despite the fact that
those were acted upon for a long time.

In case of Oudh Sugar Mills V. State of M.P.,54 it was held that such

interpretations would not be binding on courts.

52A.I.R.1950 S.C.27

53 (1965) 1 Q.B. 232

54 AIR 1975 MP 125 (131)

166
 3) Foreign decisions - The use of foreign decisions in interpreting a
statute is not an uncommon thing in the legal history. In fact almost all the

Acts and Statutes in India are of British origin, and even during the post­
independence period, many enactments have been made, many of which are
modelled on British system of law. Therefore, reference to British Acts being
made by our courts in deciding similar cases in India seem to be quite
relevant. The knowledge of English law and precedents have always been of
valuable assistance to the Indian Courts. The general rule of English law was
incorporated in Indian codes as such it has become a common practice to
refer to English decisions to support the construction the courts have reached.

Not only the precedents of English courts, but those of Australian and
Canadian courts are often quoted by our courts. For instance in construing a
common place word 'vegetables' in a taxing statute, a reference was made by
the Supreme Court to a Canadian decision in a similar statute. Ramavatar V.
Asstt. Sales Tax Officer55.

References to the precedents of the American courts have become

common after the advent of our Constitution, because of incorporation of
fundamental rights similar to those incorporated in the American Constitution -
the fact which has induced our Courts to take help of American decision in
similar matters. It cannot be gainsaid that our courts have gained
considerable assistance from foreign decisions in interpreting certain
provisions of our Constitution.

In construing what should constitute the date of publication of a statute

in Haria v. State of Rajasthan,56. Bose, J., speaking for the Supreme Court

took support from the British enactments.

But such references to foreign decision must have their limitations.

Since every legislation should confine its enactments to its own subject for

55 AIR 1961 SC 1235

56 AIR 1951 SC 467

167
whom it has authority and to whom it owes a duty courts must see that such

references are drawn to the extent these are necessary to understand the

law.

In the case of Additional Income Tax Commissioner, Gujart v. Surat

Silk Cloth Manufacturers Association,57 while interpreting the words

"Charitable purpose" in section 2, clause (15) of the Income Tax Act, 1961 the

Supreme Court held that the English decision on the interpretation of the
same expression in the English Income Tax is not binding on the courts.
These words in the Indian statute are to be construed according to the
language used there and against the background of Indian life. It may,
therefore be pointed out that Decisions of Foreign Courts are only one kind of

persuasive precedent and are not binding on the court to which it is citied.

4) Judicial and administrative practice and commercial usage:

Judicial Practice conveyancing - Practices and usages followed long in the
past, particularly the practice of eminent conveyancers and commercial usage
has been relied on by the courts for interpretation to be placed on legislation.
The English Judges have always paid due regard to such practice. When
certain words used in conveyancing are quite expressive and the same words
are incorporated in a statute, there is no reason why the same meaning
should not be adopted in interpreting the statute. Perhaps it is more natural to
refer to what has been said in the books of conveyancing precedents and
adopted in practice.

As stated by Maxwell in his Interpretation of Statutes - a statutory

power if coached in the same terms as express terms in settlements, the
opinions of the courts on those express powers must clearly become relevant.
For instance. Section 32 of the English Trustee Act, 1925, was expressed in
terms that corresponded closely with the previous common form
recommended in the books of conveyancing precedents, and in such a case it
would be natural to presume that the legislators relied on the practice which
has been in vogue for many years and adopted in thousands of cases.

57 (AIR 1980 SC 537)

168
 Administrative Practice - Administrative practice, as per Lord
Macnaughten, does not carry the same weight because administrative
precedents sometimes turn out to be bad in law. Executive construction
would, however depend on various factors, such as the length of time for
which it has been followed, the nature of rights and property affected by it, the
injustice resulting from its departure and the approval that it has received in

judicial decisions and legislation.

Lord Denning M.R. held In Strand Securities Ltd. v. Caswell58 , that it

was not necessary for the defendant to produce the land certificate relating to
the head lease, and that his application for registration of sub-lease was
complete by itself. It is obviously bad law to insist on the lessee his landlords
land certificate to which he has no right. Care must, therefore, be directly

exercised by the Courts to rely on executive practice while construing a

statute.

Commercial Usage or Trade Custom - Commercial usage stand on a

different footing. In construing any word or phrase In an Act relating to
commerce or industry when no definition of the term or no guidance has been
given by the Legislature, it would be relevant to look at the commercial usage.
'When merchants', said Lord Denning' I.R. have established a course of
business which is running smoothly as well with no inconvenience or injustice,
if is not for the judges to put a spoke in the wheel and bring it to a halt. Even if
someone is able to point to a flaw, the courts should not seize on it so as to
invalidate past transactions or produce confusion'.

As pointed out by C.K. /Mien that file. Courts exercise a careful

censorship over trade customs which are frequently alleged. "So long as the
custom or trade", said Bret, J., in Robinson v. Mollet,59 is fundamentally unjust

to the other side the courts have always determined that such a custom, if
sought to be enforced against a person ignorant of it, is unreasonable
contrary to law and void".

58 (1965) Ch. 858

59 (1873) L.R. 7H.L.802

169
 The rules of construction of a statute by reference to later
statutes: There is no fixed rule of construction of a statute by reference to
latter Act. It is construing and earlier Act is a debatable question. It is held in
Kirkness John. Husdson & Co. Ltd,80 that in construing a provision of the

earlier Act the provisions of a latter Act cannot be taken into account except in
a limited class of cases and that this rule applies although latter Act contains

provision that it is to be read as one with the earlier Act.

The above restriction does not, however, apply where the latter Act

amends the earlier Act. In such cases, the latter Act stands on its own
strength. If the provisions of the latter statute are reiatabie to the earlier one
and stand as an indirect aid to the earlier Act, then there is no reason why
these provisions cannot be used for that purpose. Further, when certain words
or phrases in the earlier Act are obscure or ambiguous or capable of more

than one meaning, the latter ~ct may be used to find out the meaning of the
words and phrases in the earlier Act. but not as a means of construction. This
is confirmed by Lord Atkinson and Buckmaster in Ormond Investment
Company v. Betts.61

It is sometimes found that the later Act contains modifications of the

incorporated provisions and in such cases if the latter Act shows a clear
intention of the scope and meaning of the provisions so incorporated
reference to the similar provisions of the earlier Act would be quite
unnecessary. In any case if the purpose of the incorporated provisions in the
later is clear, a reference to the provisions of the earlier act is unwarranted.
Under special conditions, however, the law does admit a subsequent Act to
be resorted to for the interpretation of an earlier Act but the conditions under
which the latter Act may be resorted to are strict; both must be laws on the
same subject and the par of the earlier Act which it is sought to construe must
be fairly and equally open to diverse meanings. As stated by Craies in

“(1955) A.C. 596

“(1928) A.C. 143

170
Statute, Law,; report to a latter Act can rarely, If ever be justified unless the

message that it conveys is a plain one, itself at least free from ambiguity. "It is

not a conclusive argument as to the construction of an earlier Act, said Lord

Haldane L.C. in Re Samuel62 to say that unless it be construed in a particular

way a latter would be surplus age” The latter Act may have been enacted, ex

abundandti coutela, to remove possible doubts.

It is not ordinarily permissible to interpret a latter Act with reference to

an earlier Act or vice versa unless those Acts are in Pari Materia. If an Act in
pari-material has been repealed still reliance can be placed upon the

construction even to the repealed enactment.

•

In a case in 1954, Lord Evershed M.R. said that "an expression, explicit

or implicit by Parliament in a later Act of its intention in an earlier statute

cannot be treated as altering, ex-post facto, the effect of the earlier enactment
according to the proper interpretation of the language therein used". C & H. D,
Foundation Inc. v. l.R.C63.

Usage of precedent (stare decisis) as an aid to the interpretation

of statutes: The doctrine of stare decisis applies in the usual way to cases
which determine the interpretation of particular statutory provisions. (Maxwell)
This means that when a principle of law has been established by a series of
decisions it becomes generally binding on the courts and should be followed
in similar cases.

In 1871, Westbury stated the rule thus: "If we find a uniform

interpretation of a statute upon a materially affecting property, and perpetually
recurring, and which has been adhered to without interruption, it would be
impossible for us to introduce the precedent of disregarding the interpretation.
Disagreeing with it would thereby be shaking rights and titles which have been
founded through so many years upon the conviction that interpretation is the
legal and proper one and is one which will not be departed from "Morgan v.

“(1913) A.C. 514

“(1954) Ch. 672 C.A

171
Crawshay64. And in 1907 the House of Lords refused to disturb a construction

of the Prescription Art, 1832, which had been settled or otherwise dealt with
for a long period of time on the faith of the older case, Morgan v. Fear65.

it is. therefore, dear that this rule is applicable only when transactions
relating to contractual rights or property have been completed on the faith of a

particular construction put upon a statute by earlier decisions. This rule is

based on public policy and expediency and is normally followed by the Courts
in the cases as cited above.

Limitation to the rule - This is not cannon of construction of absolute

obligation. This rule is not so imperative or inflexible as to predude deviation
there from, if the circumstances so warrant.

According to Saimond, a principle once established should not be

reversed simply because it is not perfect and rational as it ought to be.

Whenever a decision iwjleparted from the certainty of the law is sacrificed to
its rational development and the evils of uncertainty thus produced far out
weight the very trifling benefit to be derived from the correction of the
erroneous doctrine.

It follows that a great caution is necessary before overruling an

established prindpie of law. Where, however, it is found that such decision
would not lead to any disturbance of title nor would it affect contracts entered

into on the basis of any expectation but, on the contrary title to the property
would become secure, the decision would not be allowed to stand’. A correct

construction can be put on a statute, if it better serves the purpose of the

enactment.

Where legislation is repealed and re-enacted in substantially the same

terms and new legislation is taken to have been drafted with the knowledge of
judicial decisions on the old and will be interpreted in the light of those

“(1871) L.R. 5 H.L. 304

“(1907) A.C. 425

172
decisions. This does not, however, prevent the court from overruling an old

decision whidh it, considers to have been incorrectly decided R.C.D. Poreclain
Co. Ltd. V. Ressult66. The Court should bear in mind in this connection the

Maxim Communis Error Facit Juris. This means common error makes law.

It was held by that Full Bench of Allahabad High Court in Latu Singh v.
Gtir Narain,67 that where the terms of a statute or ordinance are dear, then

over a long and uniform course of judidal interpretation of it may be overruled,

if it is contrary to the clear meaning of the enactment, but where this is not the
case, then it is the duty of the Court to accept the interpretation so often and
so long put upon the statute by the Courts and not to disturb the decisions.

It is however, important to note that the rule of stare deds is does not
apply to a wrong decision on question of limitation. The law of limitation is a
law of procedure, and as such the rule of stare deds has no application to a
wrong decision given on such a matter.

And above all it is to be kept in mind that maxims and precedents are
not to be applied mechanically.

c) Aids of statutory interpretation:

Construction of words according to the intention of the Legislature -
Law of interpretation of statutes is mainly intended to gather the intention of
Legislature. Kelson is of the opinion that there is nothing called the intention of
the legislature. He bases the conclusion upon the view that in the process of
passing of bill i~ the legislative assembly, no one cares to understand the
exact implications of the expressions used in the Bill On the other hand,
Crawford is of opinion that the intention of the legislature really exists. In
various English and Indian cases it has been established that the primary duty
of the courts in the interpretation of statutes is to gather the intention of the
legislature. It is cannon of construction that all words in a statute are to be
construed in accordance with intention, that Is the words must be given a

“(1949) 2 K.B. 417

67A.I.R. 1922 All. 467

173
meaning to accord with the intention of the Legislature. Lord Upjohn has held
that the first task in construing the general words is to give them their plain
and ordinary meaning and then to see whether the context or some principle
of construction requires that some qualified meaning should be placed on

those words.

In the case of Aluminium Cables Ltd. v. Union of India,68 it was held

by. the Supreme Court of India that words should be construed in the style or
sense in which they are normally understood in any trade or business. Such

meaning constitutes the definitive index of the Legislative intention. The

intention of the legislature always reflects in the language of a statute.

Words not to be read in isolation - But on other hand, the general

words are to be interpreted by reference to the object of subject matter or to
the context in which they stand for they cannot be read in isolation. As held by
the Supreme Court in Express Mills v. Municipal Committee, Wardha,69 that

"the general words and phrases, however, wide and comprehensive that they
may be in their literal sense must usually be construed as being limited to the
actual objects of the Act". It is natural, therefore, that when the general words
are interpreted with reference to the context, it has the effect of restricting the
normal wide meaning particularly the words used in a remedial statute was
interpreted with reference to the mischief which the statute was intended to
remedy. Heyden's rule confirms this proposition that where the Intention is
particular the words are to be construed to fit in with that particular intention.

While interpreting a statute -

i) Act and Rules are to be read together70.

ii) No provision in statute and no words in section should be construed in

isolation'.71

“AIR 1985 SC 1201 (B)

“AIR 1958 SC 341

70[Jamel Singh v. State of Rajasthan, AIR 1992 Raj 173]

71 [AIR 1991 SC 711]

174
iii) section has to be read in entirety as one composite unit without bifurcating
it or ignoring any part of it’. Kalawatibai v. Soiryabai72.

Words to be so construed as to avoid conflict with the specific provision

of the Act (The Rule of Hrmonious Construction) - The application of the rule
of harmonious construction has the effect of limiting the wide meaning of the

general words for the rule of harmonious construction is intended to

harmonize two apparently conflicting provisions, and it. therefore requires that
the, general words are to be so construed as to avoid conflict with the specific

provisions of the same statute.

It is the duty of the Courts to avoid "a head on clash between two
sections of the same Act and whenever it is possible to do so to construe pn;)
Visions which appear to conflict in such a way as to bring about harmony
between them. The presumptions which an interpreter is entitled to raise are
not to be readily displaced merely by use of general words, e.g., on intention

to bind the State or Crown, or an intention to exclude supervisory jurisdiction

of superior courts will not be inferred merely by use of general words (G.P.
Singh). As per Privy Council, one of the safest guides to the construction of
sweeping general words which is difficult to apply in their full literal sense is to
examine other words of like import in the same instrument and to see what
limitation can be placed on them". Thus the words 'persons, or 'family* has a
variable connotation, and interpreting such word or words, it must invariably
be construed by reference to the context. A person may include both males
and females, and also a company or a corporation, and a family may
sometimes connote single person alone or a master living with a servant.

Narrow or wide connotation of words depends upon the object of the

Act - A narrower or a wider construction of general words depends upon the
object or subject-matter .of the Act itself. Thus a broader construction was
given to the phrase 'a single woman’ some enactments latest instance being
found in the construction of that phrase as appearing in Section I. Affiliation
Proceedings Act, 1957 (English Act) 'A single woman who is with child or who

72 AIR 1991, SC 1581

175
has been delivered of an illegitimate child', appearing in the section has been
held to mean that a married woman living apart from her husband; and who
has a child by another man, is a 'single woman' for the purposes of this
provision. This particular construction has been given in accordance with the
intent of the Act, for, as stated by Lord Denman, C.J.; "the law differently
interpreted would fail to reach a large proportion of illegitimate children".
Although it is usual practice to give the same meaning to the same words or
phrases when used in Acts dealing with the same subject matter, it is not
uncommon for the same word or phrase to have different meanings in
different statutes. Thus the words, 'Possession is so general that its meaning
must always depend on the context in which it is used and on the subject-

matter to which it relates.

General words often receive restricted construction when used in

association with other words by application of the rules of noscitur associd or
ejusdem generis.

Meaning and scope of the maxim - Noscitur a sociis - this maxim

means that the meaning of a doubtful word may be ascertained with
reference to the meaning of word associated with it. The rule has application
where the word isolated from the context yields no sensible meaning. But
when associated with the expressions give sensible meaning. In other words
in doubtful cases other words supply guidance to ascertain the meaning of a
particular expression, which in isolated state, it is not possible to ascertain
what sense is sought to be conveyed by it.

According to Maxwell, the maxim means that, when two or more words
which are susceptible of analogous meaning, are coupled together they are
understood to be used in their cognate sense. They take it as it were their
colour from each other, that is the meaning of the more general being
restricted to a sense analogous to that of the less general".

In short, noscitur a sociis means construction of words with reference

to words found in immediate connection with them. It is wide than ejusdem
generis which is only an application of the broader maxim noscitur a sociis.

176
 As regards the scope of this rule, our Supreme Court has laid down

that noscitur a sociis is merely a rule of construction and it canilot prevail in

cases where it is clear that the wider words have been deliberately used in
order to make the scope of the defined word correspondingly wider. It is
where the intention of the Legislature associating wider with words of
narrower significance is doubtful, or otherwise not clear that present rule of

construction can be usefully applied.

Thus applying this rule, the Supreme Court construed the definition of
the term "industry" in the Industrial Disputes Act, 1947, so as to include
'hospital' within the scope of 'industry1 keeping in view the wide intent of
Legislature. In context, the activities of the Municipal Corporation excepting
the functions of the State delegated to it, would come under the ambit of the

term 'industry* as held by the Supreme Court in the case of Nagpur

Corporation v. It’s Employers73.

In an English Act which made it a felony to break and enter into any
shop, warehouse or counting house; it was held that only that kind of shop
which had some analogy with a 'ware house' that is, one for sale of goods is
to be included. In another English Case I R.C. v. Frere, (1955), AC 4027, it
was held by the House of Lords that the word 'interest* in the phrase 'interest
annuities and other annual payments in the Income-tax Act meant only annual
interest (Max).

This rule was applied by the Privy Council in construing the words
'declare' in the phrase 'to create' declare, assign or extinguish' occurring
in Section 17 of the Indian Registration Act, 1908. It was held that although
the word 'declare' is capable of a wider meaning it being used in association
with other words in this section, its meaning is restricted to connote a definite
charge of legal relationship as distinct from a mere statement of facts.

Limitation to the rule - The rule not to be applied where the series of
words convey a clear and definite meaning - It is not always correct to

73 AIR 1960 S.C. 675

177
interpret the general words in the light of a particular instances given in the

provision. Random application of this rule may lead to a wrong conclusion,

unless the interpreter knows the societas to which the socii belong.
Association of juxtaposition of wonts must be carefully looked into. If the
statute defines a thing as including certain other matters, it .must be
construed according to Hie meaning of the terms as they convey, and not by

application of noscitur a sociis. Where a series of words used in a statute

convey a clear and definite meaning, (since sometimes it is a sociis is not an
invariable rule of construction, but it is a useful rule the practice of the

draftsman to state expressly that certain matters are to be treated as coining

within the ambit of the definition) there is no scope for application of this rule.

It is not also uncommon that in the order of words used in a statute one

word takes colour from the other. Thus in considering the words "any house,
garden, yard, warehouse, building or manufactory in the Railway Act, it was
held by Sir Lancelot Shadwell that the juxtaposition of the words shows that
the terms 'yard' or 'garden', not being separate entities, are to be taken in
connection with a house.

Applicability of the rule Ejusdem Generis in the interpretation of

Statutes: The doctrine of 'Ejusdem Generis’ is only part of a wider principle of
construction, namely, that, where reasonably possible, same significance and
meaning should be attributed to each and every word and phrase in a written
document. According to this doctrine the general expression is to read as
comprehending only things of the same kind as that designated by the
preceding particular expression unless there is something to show that a
wider sense was intended as where there is no provision specifically
excepting certain cases clearly not within the suggested genus.

Unless there is a genus, class or category there is no room for any

application of this doctrine. As per C. Aiyar, J., there must be distinct genus
which must comprise more than one species. Mention of a single species will
not constitute a genus. Thus linear, plate and chatties in the premises
including the coach-house and stable does not make up the category
excluding the horses. Nor do the words "theatres and other places of public

178
entertainment' create a genus. In a Privy Council case it has been held that
there must be more than one species mentioned to constitute a genus (Lord

Thankerton).

To speak more explicitly, "the general expression is to be read as

comprehending only things of the same kind as that designated by the

preceding particular expression, unless there is something to show that a

wider sense was intended. The rule cannot apply where the words are clearly
wide in their meaning and do not belong to a distinct genus or category.

Unless there is a genus, as already stated this rule has no application.

For example, in the expressions 'books', pamphlets and other documents'
personal diaries of private letters may not be held included, if other

documents be interpreted ejusdem generis with the preceding words.

The use of the rule of ejusdem generis is permissible only as aid to the
court in the attempt to ascertain the intent of the law makers. It cannot be
employed to restrict the operation of an Act within the narrower limit than was
intended by the legislature. Nor is the rule to be applied where specific words
enumerate subjects which greatly differ from each other or where specific
words exhaust all the objects of the class mentioned Nor will the rule be
applicable in one another situation' thus where a statute enumerates persons
or things of an inferior rank, dignity or importance it is not to be extended by
the addition of general words to persons or things of a higher rank, dignity or
importance than that of the highest enumerated if there are any of a lower
species to which the general words can apply".

In the case of Tribhuwan Prakash Nayyar v. Union of India,74 it was

held that the 'ejusderm generies reflects an attempt to reconcile

incompatibility between the specific and several words in view of Other rules
of interpretation.

The rule is one to be applied with caution - Not to be applied where

legislative intention is clear - The rule of ejusdem generis is not to be absolute

74 AIR 1970, SC 540 p. 545

179
rule of law: it is only a part of wider principle of construction. This being so,
this rule should not be applied where the intention of the Legislature is clear,
where a perusal of the provision or provisions as a whole 'clearly indicates
that the general words have been employed in their normal sense and are not
in any way connected with specific things, and the particular words, if used in

the section embrace and objects of their class and there is no room to impose
any limitation on the general words by reference to the specific things or
particular words.

Finally whether this rule should be applied to a particular provision

depends on its terms, the purpose and object of the provisions, and
particularly on the intent of the Act itself. It is, therefore necessary to examine
each word and phrase in the section with reference to its context to determine
whether or not the application of this rule is necessary.

Application of this rule requires care and caution. As held by the

Supreme Court in Kochuni v. State of Madras,75 "it is not an inviolable rule of

law, but it is only permissible inference in the absence of all indication to the
contrary.

There are six conditions necessary for the application of the principle
of Ejusdem Generis;.
1) A statute must contain an enumeration by specified words,
2) The enumerated thing must constitute a class by itself.

3) The things that must be included in the class should not be exhausted.
4) There must be generalisation behind the enumeration.
5) The class must contain several items of which some are mentioned, and
6) There should be no clear proof that the general term has no broader
meaning.

In such cases, the doctrine can be applied and the generalisation can
be extended to other cases to which the conditions satisfy.

75 AIR 1960 SC 1080

ISO
 Bentham enunciates certain important requirements of good drafting.
The law should be abreast of the times and in tune and conformity with
general human dispositions.

As Bentham points out: "The legislator is not master of the dispositions

of the human heart, he is only their Interpreter and their minister". The
goodness of the laws and its ability to last long depends upon their conformity
to general expectation, i.e. the pulse of the public. The Legislator must be
thoroughly acquainted with such 'expectation' and its progress from time to
time, in order to act in concert with it. That should be the object of the
legislator. To achieve this end, the conditions necessary are:
1. laws to be anterior to Expectation
2. laws to be known {in accordance with general notions)
3. consistent {in accordance with established arrangement)
i) certainty in execution {punishments to be imposed without fail
ii) literal interpretation Q'udge cannot make law)
4. Principle of utility (maximize happiness)
5. Method in the laws (systematic)

(1) Anterior to expectation:- When laws are to be made for the first time in
any Branch or field, the difficulty the legislator faces is this: Already there
exists among all people a multitude of expectations which are based on
ancient usages, practices or laws. To attempt radically change them is
nothing but to invite severe opposition and stubborn resistance from the
public. The legislator is, therefore to follow a system of conciliation, and of
humouring. This fetters and thwarts to some extent his thrusts to introduce
changes. Hence the rule, laws should be anterior to expectation, i.e., pulse of
the people. The first laws find some expectations already formed and any
deviation can cause resistance. To overcome this difficulty Bentham suggests
that a certain period of time can be allowed to lapse before the law newly
formed can be made to become operative. In such a case, the present
generation will not feel the change, and the rising or new generation will be
prepared for it. It roughly corresponds to what is known as conditional
legislation at the present day. Under conditional legislation (i) The legislature
makes the laws in ail its details.(ii) They do not be come immediately
181
operative. A condition precedent is prescribed for the law to come into force,
(iii) It will come into force at such time and such places as the Executive may
declare by notification.

(2) Laws to be knownBentham observes:

"A law which is unknown can have no effect upon expectation; it will
not even serve to prevent a contrary expectation". Expectation, naturally
directs itself towards the laws which are most important to society. Thus theft,
forgery, murder etc, are serious crimes and are expected to be treated as
offences in any society and in every state. So much so, a stranger who
commits such an offence should not be suffered to plead ignorance of the
laws of the country, since he could not be ignorant that acts so manifestly
hurtful were crimes everywhere.

(3) The laws to be consistent: When the laws have established a certain
arrangement upon a principle generally admitted, every additional
arrangement which is consistent with that principle will prove to be
conformable to the general expectation. As observed by Bentham, “Every
analogous law is presumed, as it were, beforehand. Each new application of
the principle contributes to strengthen it. But a law which has not this
character remains isolated in the mind; and the influence of the principle to
which it is opposed is a force which tends, without ceasing, to drive it from the
memory". What it means is that, every law that is newly introduced should, as
far as possible, be consistent with the laws already in the field. Bentham sums
up the position thus: "When new laws are made in opposition to a principle
established by the old ones, the stronger that principle is the more odious will
the inconsistency appear. A contradiction of sentiment results from it, and
disappointed expectations accuse the legislator of tyranny".

(4) The fourth condition is that the laws should be consistent with the
principle of utility. Utility is a point towards which all expectations have a
natural tendency to convulse. At times, there is a possibility that law
conformable to utility may not be immediately acceptable to the public, ie. it
may happen to be against public opinion. That is described by Bentham as
only" an accidental and transitory circumstance". As soon as the utility
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becomes obvious all minds will be reconciled to the law. At the first moment,
an innovation may, no doubt, be surrounded by an impure atmosphere; a
mass of clouds formed by caprices and prejudices float about it; and the
appearance of things is changed by the refractions it undergoes in the
passage through so deceitful a medium. Bentham expresses confidence."
That the plan which favours the most Interests cannot fail in the end to gain
the most suffrages; and the useful novelty, which at first was repulsed with
affright, becomes presently so familiar that no one recollects its
commencement".

(5) The fifth condition is Method in the Laws unless the laws are
methodically arranged, it would not be possible for people to understand and
remember them. Every man has limited measure of understanding; the more
complex the Law is, the more It is above the facilities of a great number. "Both
the style and the method should be simple; the Law ought to be a manual of
instruction for each individual; and everyone should be enabled to consult it in
doubtful cases, without the aid of an interpreter".

(6) To become the controller of expectation, the law ought to present itself
to the mind as certain to be executed No reason for presuming the contrary
ought to appear. A law which is full of loop-holes and thereby becomes
incapable of execution, It serves no useful purpose. "These inefficacious
punishments are an additional reproach to the law. Contemptible in its
weakness, dubious in its force, it is always bad, whether It reaches the guilty
or suffers him to escape".

(7) The seventh and last condition necessary to produce conformity

between expectation and the laws requires that the Laws should be literally
followed. Expressing his support in favour of literal or grammatical
interpretation of laws by the Judges, Bentham observed.

"The word Interpretation has a very different meaning in the mouth of a

Lawyer, from what it has when employed by other people, to interpret a
passage in an author, is to bring out of its the sense which the writer had in
his mind; to interpret a Law, in the sense at least of the Roman Lawyers is
183
often to get rid of the intention clearly and plainly expressed, and to substitute
some other for it, in the presumption that this new sense was the actual

intention of the legislator".

If a Judge" dare to arrogate to himself the power of interpreting the

laws, that is to say of substituting his will for that of the Legislator, everything
then becomes arbitrary; no one can foresee the course which caprice will
take. The question is no longer of the actual evil; however great that maybe, it
is small in comparison with the magnitude of possible consequences. The
serpent it is said, can pass his whole body wherever he can introduce his
head. As regards legal tyranny it is this subtle head of which we must take
care, lest presently we see it followed by all the tortuous folds of abuse... The
Judge now conforming to the law, and now explaining it away, can always
decide a case to suit his own designs. He is always sure of saving himself,
either by the literal sense or the interpretation. He is a charlatan who
astonishes the spectators by making the sweet and bitter' run from the same
cup".

Such according to Bentham are the evils that follow when the judges
are allowed to make law by wide interpretations of statutes. Accordingly, he
points out that expectations of the people and the Laws shall dovetail perfectly
only when the laws are literally followed.
It is thus clear that a law to be perfect should possess;-

a) Simplicity

b) Preciseness

c) Consistency

d) Clarity

e) Brevity

f) Certainty

g) Alignment with existing law

h) Effectiveness

If the above characteristics are not present in the statute, it becomes

difficult for the Courts to interpret them. If the statute is defective or there is
184
omission of any important point, the process of interpretation would be

rendered difficult.

There was never any statute observes Prof. Allen, "that did not have its
casus omissi: and there are some statutes in which the casus omissi seem to

exceed the cases expressly provided for".

Two kinds of 'casus omissi' may be distinguished.

(1) Sometimes a case arises, or a right is claimed which is not dealt with by
the statute either directly or indirectly. In former times, the Judges have
extended the provisions of statutes in such a way as virtually to add a clause
to them; but in modern times, points out Prof. Allen, courts are bound to take
the view that if a case is entirely un-provided for by a statute, either directly or
indirectly, then it must remain nobody's child - a luckless orphan of the Law.
Although very inconvenient results may sometimes follow, that is not due to
the fault of Judges. Sometimes judges can merely express regret for a
statutory 'lacuna' and a hope that it will be remedied in due course by
Legislation.

(2) Another kind of omission arises when the Legislature has given a general
indication but has not specifically included the particular case which arises for
decision. Sometimes the omission is due to the most cogent of reasons
namely that the circumstances which gave rise to the case could not possibly
have existed at the time when the statute was passed. Recent inventions like
aeroplanes broadcasting etc., points out Prof. Allen, necessitated changes
and various statutes had been passed of late to deal with the new problems &
circumstances: but not in frequently.

Interpretation of a statute anterior to these inventions has to take

account of their ex-post facto existence and development. The court cannot,
without doing injustice, ignore them merely because the statute did not
mention them and could not have mentioned them.

There are many other cases in which, a statute, though laying down a
general policy, is silent upon a particular point, not because it was impossible

185
for the situation to arise, but simply because it was not foreseen by the

framers of the statute, or because it was insufficiently defined.

Rules of Casus Omissus: The casus omissus rule provides that omissions
in a statute cannot, as a general rule, be supplied by construction. This rule is
well-illustrated by the recent case of Parkinson v. Plumpton, The Catering
Wages Act, 1943, prescribed minimum wages payable to workers in catering
establishments. The schedules to the Act provided for minimum wages: (i)
when the employer supplies the worker with full board and lodging: (ii) when

the employer supplies the worker with neither full board nor lodging.

The plaintiff was a worker in a catering establishment. She was

provided with full board but not with lodging. She claimed that she was paid
less than the minimum wages payable under the Act. Lord Goddard, C.J.,
dismissing the action observed: "I think there is a casus omissus, and that the
draftsman has forgotten to provide for the case where, as here, board is
provided, but not lodging within the meaning of the schedule. I suppose it was
thought that full board would only be supplied when lodgings were provided,
and, as I have said, lodging seems to be put out of account here. These
people were there full time, and so, therefore you have got this unfortunate
hiatus. One always tries to construe words so as to give them a sensible
construction and prevent their failure, but I do not know of any canon of
construction which enables me to construe where the employer supplies the
worker with neither board nor lodging' to include a case where the employer
supplies full board but no lodging. I (rant rewrite the legislation. I must enter
judgement for the defendant."

It must be pointed out that in all such cases, as Prof. Allen points out,
the fate of the causus omissus lies entirely in the hands of the Judges and in
no real sense depends on the will of the legislator. The courts lay down a rule
exactly because the legislature has not done so, and has not intended to do
so. Judges must and do carry out the express will of the legislature as
faithfully as they can; but there is a very wide margin in almost every statute
where the courts cannot be said to be following any will except their own. The
statute then becomes, as to a great part of it, not a direct 'command', but
186
simply part of the social and legal material which Judges have to handle
according to their customary process of judicial logic. It is in the process of

filling in these gaps, more than anywhere else, observes Prof. Allen, that the
common law may be called with some plausibility, 'Jude-made law1. To assert,
as is sometimes done, that Judges do not In fact cement these Interstices in

statutes is to run counter to a thousand Instances.

Causus omissi in enacted law are only one though perhaps the most
conspicuous, ©cample of the difficulties of attempting to penetrate the mind of

the legislator. It is one thing to 'discover* the intent of the legislator in the time
of Coke when statutes were comparatively few and when they explained their
purposes, often in verbose and grandiloquent terms, by their preambles. It is
quite another thing to-day, when statutes are far more extensive and infinitely

more complex. It is indeed a very different situation to-day from that which
existed when Parke B., and Tindal, C.J. laid down the doctrines that a statute
should be construed according to the intent of parliament. Consequently, most
modem Judges to-day are extremely chary of the principle of statutory 'intent',
for they feel that it asks of them more than they not being mind- readers can
be expected to perform. As Justice Frankfurter puts it, "we are not concerned
with anything subjective. We do not delve into the minds of legislators or their
draftsmen, or committee members".

It is here that we see a permanent, and apparently an insoluble,

dilemma of written law on the one hand no human language can be
completely self-explanatory and all embracing, and on the other hand the
interpreters of the written word cannot and should not guess at undisclosed
meanings which merely open the door to speculative ingenuity. It may be that
no process of Interpretation can entirely dispense with some element of what
at Its lowest Is called 'guess work' and at Its highest 'Insight', but It Is clear
that the phraseology of enacted law, which purports to be pre-eminently
explicit, is the least appropriate field for this highly uncertain quantity.

It is therefore dear that it is wrong to suppose that the parliament has

only to express its will in appropriate words and that once this is done,
consequences shall follow as the night the day. Similarly it is going too far to
187
say that 'it is with the meaning declared by the courts, and with no other
meaning, that statutes are imposed on the community as law". There are
many parts of many statutes which have never been the subject of judicial
interpretation at all, but which are unquestionably the law of the land. But a
very great, and perhaps the most important, part of the operation of statute is

indissolubly dependent on the functions of the Judge.

To ignore this intermediate stage between the *wiir of the sovereign

and the 'obedience' of the subject is to falsify completely the actual operation
of statutory law in society. It is the unfortunate but inevitable consequence of
this fact that interpretation sometimes results in the opposite of what the
legislature seems to have intended. However, for this anomaly the
deficiencies of human language and foresight are responsible.

Since the law draws its water from the natural springs of society itself
and not from the artificial reservoir of parliament, as sir Frederic Pollock rightly
says;
"Some of our elaborate rules for Judicial Interpretation of statute cannot
well be accounted for except on the theory that parliament generally changes
the law for the worse, and that the business of the Judges is to keep the
mischief of its interference within the narrowest possible bounds".

Prof. Allen observes: "Upto the present time, the courts have done the
bulk of the work in developing the fundamental principles of Jurisprudence
which lie beneath all legal systems, whereas the Legislature has been more
concerned with rules affecting the system of Government and the general
necessities of society. There is, however, a marked tendency at present for
governmental and administrative legislation to extend its range and to overlap
the normal activities of the courts in adjusting the essential rules of legal right
and duty." The gradual change in constitutional theory and legislative methods
is mainly responsible for this tendency.

Statutory interpretation In Practice:- The 'Ratio Legis' and the 'Ratio

verborum' have not shown themselves natural allies in any system of law. The
question which I have to determine "observed Roxburgh J.. in re Dark," is

188
interesting, if only as an example to show how dangerous it is to think that

words in an Act of parliament necessarily mean what they say:: Despite the
most strenuous and ingenious efforts’ the principles of the 'literal' and the

'liberal' are never reconciled.

It is therefore clear that if the draftsmanship is defective, the Court

would nether be able to interpret by applying literal or even liberal

interpretation.

It is clear from the above that -

a) Statutory interpretation is a very important aspect of judicial process. A

statute should be interpreted by the judge according to certain well laid down
norms and principles. It should not be arbitrary. As far as possible, the
interpretation must be in accordance with the intention of the legislature.
Where the legislator had failed to bring out clearly the meaning of the statute,
its intention and purpose, the court has to make the intention clear keeping in
mind the interests of the society and the object of the statute. Much of the
confusion can be avoided if only the legislative drafting is perfect, precise and
clear. The following points are noteworthy in regard to good drafting of
legislation.

b) It is further clear that there are certain important approaches of statutory

interpretation - Grammatical approach, Logical approach, Historical approach
and Sociological approach.

While adopting these approaches, certain important rules are to be

followed by the courts - Ejusdem genesis, Nosdtor a sods, Causus omissus
etc.

c) When the court is unable to interpret a statute and find out the intention of
the legislator (letara legis) it has to take recourse to certain aids both internal
and external. Some of the internal aids are - footnotes, side headings,
preamble etc. (2) Some of the external aids are - textbooks, dictionaries,
General Clauses Act 1897, Parliamentary discussions etc.

189
 Thus, the statutory interpretation is a mechanism which is highly
complicated, lengthy and laborious. The court should select the sociological

or progressive interpretation in order to serve the needs of the society.

190