Article 21 and constitutional law, Study notes of Constitutional Law

Download Article 21 and constitutional law and more Study notes Constitutional Law in PDF only on Docsity! 1 INTERPRETATION OF STATUTES Justice A.K. Srivastava, Judge, Delhi High Court at New Delhi Words spoken or written are the means of communication. Where they are possible of giving one and only one meaning there is no problem. But where there is a possibility of two meanings, a problem arises and the real intention is to be sorted out. It two persons communicating with each other are sitting together; they can by subsequent conversation clear the confusion and make things clear. But what will happen if a provision in any statute is found to convey more than one meaning? The Judges and the Lawyers whose duty it is to interpret statutes have no opportunity to converse with the Legislature which had enacted a particular statute. The Legislature, after enacting statutes becomes functus officio so far as those statutes are concerned. It is not their function to interpret the statutes. Thus two functions are clearly demarcated. Legislature enacts and the Judges interpret. The difficulty with Judges is that they cannot say that they do not understand a particular provision of an enactment. They have to interpret in one way or another. They cannot remand or refer back the matter to the Legislature for interpretation. That situation led to the birth of principles of interpretation to find out the real intent of the Legislature. Consequently, the Superior Courts had to give us the rules of interpretation to ease ambiguities, inconsistencies, contradictions or lacunas. The rules of interpretation come into play only where clarity or precision in the provisions of the statute are found missing. Good enactments are those which have least ambiguities, inconsistencies, contradictions or lacunas. Bad enactments are gold mine for lawyers because for half of the litigation the legislative draftsmen are undoubtedly the cause. The purpose of the interpretation of the statute Is to unlock the locks put by the Legislature. For such unlocking, keys are to be found out. These keys may be termed as aids for interpretation and principles of interpretation. The aids for interpretation may be divided into two categories, namely, Internal and External. The Internal Aids are those which are found within the statute. They may be as follows:- 1. Long title of the statute. 2. Preamble of the statute. 3. Chapter Headings of the statute. 4. Marginal Notes to every section of statute. 5. Punctuations. 6. Illustrations given below the sections. 7. Definitions. 8. Provisos. 9. Explanation. 10. Saving Clauses and non-obstante Clauses. 4YFPMWLIHMR-RWXMXYXI W.SYVREP.YP]7ITXIQFIV 2 External Aid for interpretation are those which are not contained in the statute but are found else-where. They may be as follows:- 1. Historical background. 2. Statement of objects and reasons. 3. The original Bill as drafted and introduced. 4. Debates in the Legislature. 5. State of things at the time a particular legislation was enacted. 6. Judicial construction. 7. Legal dictionaries. 8. Commonsense. As stated above, the Superior Courts have formulated certain principles of interpretation to find out the real intent of. the Legislature. These principles may be enumerated as follows:- 1. Literal construction In construing a statutory provision the first and the foremost rule of construction is that of literal construction. All that the Court has to see at the very outset is, what does the provision say? The Courts are bound by the mandate of the Legislature and once it has expressed its intention in words which have a clear significance and meaning, the Court is precluded from speculating. If the provision is unambiguous and if from that provision the legislative intent is clear, the other rules of construction of statutes need not be called into aid. They are called into aid only when the legislative intention is not clear. But the courts would not be justified in so straining the language of the statutory provision as to ascribe the meaning which cannot be warranted by the words employed by the Legislature. 2. No external aid Where words plain and unambiguous- Where the words of a statute are plain, precise and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external aid is admissible to construe those words. It is only where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more than one meaning or shades of meaning that the external aid may be looked into for the purpose of ascertaining the object which the Legislature had in view in using the words in question. 3. Mischief rule (Heydon's case)- When a question arises as to the interpretation to be put on an enactment, what the Court is to do is to ascertain "the intent of them that make it," and that must of course be gathered from the words actually used in the statute. That, however, does not mean that the decision should rest on a literal interpretation of the words used in disregard of all other materials. The literal construction, then, has, in general, but prima facie preference. To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope and object of the whole Act; to consider: 1. What was law before the Act was passed? 2. What was the mischief and defect for which the law had not provided? 3. What remedy Parliament has resolved and appointed to cure the disease? and 4. The true reason of the remedy and then the judges have to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief. 5 Thus, an Act of Legislature must be so interpreted, wherever possible, so as to make it constitutional rather than unconstitutional. Likewise, a rule, i.e. a piece of delegated legislation, should be so interpreted as to make it not only constitutional but also within the authority conferred by the Legislature on the Government while conferring on it the power to make rules. 11. Reading down - While making such construction It is permissible for the Court even to "read down" a provision in order to so understand it as not to attempt something beyond the competence of the legislative body. This is called the principle of "reading down". 12. Ejusdem generis:- The ejusdem generis rule is explained in Halsbury's Laws of England thus:- '"As a rule, where in a statute there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified, although this, as a rule of construction;, must be applied with caution, and subject to the primary rule that statutes are to be construed in accordance with the intention of Parliament. For the ejusdem rule to apply, the specific words must constitute a category , class or genus; if they do constitute such a category, class or genus, then only things which belong to that category , class or genus fall within the general words " 13. Same words, same meaning- Where a Legislature uses same expression in the same statute at two places or more, then the same interpretation should be given to that expression unless the context otherwise requires. But the application of the rule of "same word, same meaning" may be excluded by the context. If one construction will lead to an ambiguity while another will give effect to what common sense would show was obviously Intended, the construction which would defeat the ends of the Act must be rejected even if same words used In the same section and even in the same sentence have to be construed differently. 14. Later law abrogates earlier laws not consistent with It- This principle is expressed in the Latin maxim posteriores leges priores contrarias abrogant. This principle has been applied by the Supreme Court in several cases. After discussing the principles of interpretation it would also be useful to discuss about mandatory and directory provisions. Mandatory and Directory Provisions : The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often Is not decisive. The use of words 'shall' and 'may' is not the determinant factor. Regard must be given to the context, subject matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. The rules may be as follows: 6 a- The golden rule is that when consequences are provided by statute then the provisions are definitely mandatory .If no consequences then the provisions are merely directory. EXAMPLES OF MANDATORY PROVISIONS; 1. The provisions relating to limitation for seeking remedy in Courts or Tribunals; 2. The provisions relating to principles of natural justice; 3. The provisions relating to registration of certain documents; b- Use of negative words shows a clear intention that the provision enacted is mandatory-EXAMPLES;- Section 80 CPC. Section 87 B, CPC. Section 77 of Railways Act, 1890, Section 213 of the Succession Act, 1925, Section 7 of the Stamp Act, 1899. Section 20 (1) of the Prevention of Food Adulteration Act, 1954, c- Affirmative words stand at a weaker footing than negative words for reading the provision as mandatory. d- When no discretion, the provision Is generally treated as mandatory. When discretion given then the provision is directory. [J.T.R.I. JOURNAL – First Year, Issue – 3 - Year – July – September, 1995]