Referencer uncovered. For example, the Right to Information Act,

Referencer

Chapter
Two – Interpretation of Statutes

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Glossary

 

·       
Statute – Statute means the written will of a legislative body as
expressed through an Act passed by the Parliament or a state legislature.

·       
Interpretation of statutes

·       
Codifying

·       
Declaratory

·       
Remedial

·       
Amending

·       
Consolidating

·       
Enabling

·       
Disabling/restraining

·       
 

Long
answer questions

Q. What are statutes? Explain the various types of
statutes.

Ans.
Statutes are acts passed by the legislature or parliament and made into laws.
They represent the will of the legislative of a nation or of a state.  Laws made in this way are seen as primary
laws, i.e. as highest sources of legal power, as opposed to secondary laws made
by authorities other than the legislature of that nation or state.

 

Types of statutes –

Statutes
can be of the following kinds  –

–        
Codifying statutes – These make a law for a subject for the first time,
i.e. statutes that cover new ground hitherto uncovered. For example, the Right
to Information Act, which has been made for the first time in India.

–        
Declaratory statutes – The ones that declare or clarify something
already encapsulated in some act, for example, the various amendment acts
passed, which give clarifications for previously passed acts.

–        
Remedial statutes – These are to change the secondary law, i.e. law
made by some other authorities, not through the legislature.

–        
Amending statutes – When it seeks to amend some legislative law already
in existence.

–        
Consolidating statutes – When they merge or combine several other
statutes existing in a disjoint manner until then.

–        
Enabling statutes – When they eliminate the difficulties present in an
existing statute.

–        
Disabling statutes – Those that stop certain acts.

–        
 Penal statutes – Which set out
the punishments or penalties.

 

Q. What are the primary rules used in interpretation of statutes?

Ans.
There are Primary and Secondary rules of interpretation. While trying to
interpret a statute, we first attempt to work with the Primary rules; if they
fail, we seek the Secondary rules to unlock the meaning of the statute under
study.

 

The
Primary Rules of Interpretation are – 

(i)               
Literal construction – This rule says that in interpretation of a
statute, we should give primary importance to the literal meaning of its words
and phrases. In doing so, we should understand the words in their basic
customary, grammatical context and not put any external meaning to the words.
Neither should we try to extend the meaning of the words used in the statute.
The only limitation to this rule is when such a construction does not include
within its purview a part of the statute. Then we need to use the other rules
of interpretation so that we can put to use the entire act.

 

(ii)            
The Mischief Rule/ Heydon’s Rule – According to this rule, when we
interpret statutes, we need to consider some facts – 

–        
what was the rule pertaining to the subject matter before the current
statute was made

–        
what was the mischief or wrong that the common law did not cover till
then, so that need for a special law was felt

–        
the solution established by the new statute and the motive behind it.

 

These principles were
established by Lord Coke in the famous case of Sir John Heydon. It was decided  that when the literal meaning of the words of
a statute is obscured, then seeking the mischief which the act seeks to correct
or mitigate would help in its interpretation.

(iii)
Rule of reasonable construction – Ut res magis valeat quam pereat  

 According to this rule, while constructing the
meaning of a statute, although we utilize the common or ordinary meaning of the
words used in it, it should be done while according due regard to the
following–

-The
subject matter or the core concern of the act


The objective intended to be fulfilled by it, for example, the wrongs it seeks
to address. 

If we ignore these two things and take the
words at their literal, face value, chances are that the interpretation would
be faulty. Only a well-rounded meaning would be of practical use, as it would
help assign a sensible meaning to the act. Hence, the act of interpretation would
begin from taking the literal or dictionary meanings of the words of a statute,
subjecting them to a scrutiny in light of its objective and only if such
meanings do not give a correct sense of the act should we resort to altering
the meanings of the words according to the context.

 

(iv)
Rule of Harmonious Construction – Where two provisions of the same enactment
cannot be reconciled with each other they should be so interpreted that, if
possible, effect may be given to both. This is the rule of Harmonious
Construction. It helps in maintaining a link between the parts of a statute or
between parts within a particular section when there is any discrepancy between
them. By doing so, it ensures that no part is rendered redundant. The meaning
is so construed that both the parts play a role in it.

 

(v) Rule of Ejusdem Generis – It is one of the basic
principles of interpretation. The term itself means ‘of the same kind’, and
helps when the statute is not clear as to the implications and coverage. The
rule says that when there is a specific class or classes of acts or things or
persons defined in an Act, any word occurring subsequently will be bound by
their coverage, i.e. a wider meaning than the one defined cannot be taken. For
example, under the Central Excise Tariff Act, there are lists of items that
come under the same head. If one of the lists say that it is to include textile
articles, viz, clothing, sheets, bed covers, etc., it can in no way be
inclusive of articles that cannot be termed strictly as being made of textile,
like sheets made majorly of a synthetic fibre, though containing a small
percentage of cotton fibre. Hence, if the list is an exhaustive or fairly
indicative list, a wider meaning cannot be given to it.

 

If,
however, there is no specific list, or the class is not that well defined, the
application could cover a wider scope. The universal logic behind this
principle is that if a statute had been intended for a general coverage, it
would not have included specific words to define the scope of its usage. It is
essential though, that this rule should be used with discretion, because there
exists the practical risk of the act becoming too specific for actual use.

 

Q. Comment
on the Secondary Rules of Interpretation of statutes.

Ans.
The Secondary Rules of Interpretation are –

(i)               
Expressio Unis Est Exclusio Alterius – Literally this rule means that
‘items not expressly included in the list are deemed to be excluded’, i.e. what
the statute does not mention, is not covered by it. It has to be judged from
the language of the statute whether an item has been willfully left out or it
has happened due to inadvertence. An inclusive list would be so defined by the
use of terms like ‘includes’,  ‘and’,
‘also’ etc. For example, if a statute says that it is made for controlling
public services like sanitation, electricity supply and water, these are the
only things to be included, to the exclusion of all others. The use of this
rule will be limited to uses that do not border on the absurd, unfair or
contradictory.

(ii)            
Contemporanea Expositio Est Optima Et Fortissima In Lege – The literal
meaning of this expression is – the contemporary meaning is the optimum and
most compelling and effective interpretation. This gives a strong context to
the statute, as the best meaning can be derived from the meaning the words had
when the statute was first made. The contemporary conditions of the law of the
period are reflected in the words of the statutes when they are understood
according to their original meanings.

(iii)          
Noscitur a socitis – It is one of the rules of interpretation.
According to it, the meaning of a word has to be derived from the words
mentioned along with it in the statute. This is because words at times have
contextual meanings, and support complete interpretation only when read with
contiguous words. This rule can be used when the word carries the same meaning
everywhere in the statute, but not where alternative meanings are possible.
This rule, like other rules of interpretation, is not resorted to when using it
would lead to absurdities of interpretation, or when the perspective differs,
or when the usage is in a different condition.

(iv)            
 Strict and liberal construction – They are
both ways of interpretation of statutes. Strict construction means that the
statute should be followed in letter, i.e. only that should be given effect to
which is expressly stated in the act. No external inputs or extended usage is
allowed. Such a construction would give more importance to the literal meaning
of the words, without putting much premium on external information. Liberal
construction means that the statute has to be followed in the spirit of the
act, i.e. whatever can be done to give effect to the intention of the
legislature in making that statute has to be done. This will include sources
other than the internal ones. For example, following the Mischief Rule, one can
easily gain the intention of the statute, thus giving effect to its original
objective.

 

Q. What are the internal aids used in interpretation
of statutes? When are they used?

Ans.
The internal aids are mostly those elements that form a part of the act
itself. They are used when there is sufficient help provided within the statute
itself to give us a good understanding as to its meaning.

Chief
among them are –

(i)               
Title of the act – There can be a
long title and a short title. The long title can be used for understanding the
context and brief description of the act, but the short title performs neither
of these functions. For example, the Foreign Exchange Management Act gives us
an idea that it contains rules about foreign earnings and currency, but FEMA
does not give us any idea unless we already what the acronym stands for. 

(ii)            
Preamble – The preamble specifies
the intention behind the making of the act, i.e. what is the mischief that the
makers of the act sought to correct. It can be one of the key starting points
when we begin to understand a statute.

(iii)          
Chapter heads or separate
headings separating the act into parts – This will help be dividing the act
into smaller parts, which are logically and sequentially linked to enhance
comprehension. Especially if we need to refer to a particular part, and not the
whole of the act, these help us in getting to the right portion without losing
valuable time.

(iv)          
Marginal notes – These are
generally not given much weightage if the meaning of the statute is clear I
itself, but where there is an ambiguity, these can provide an idea as to the
general meaning behind the statute.

(v)            
Interpretative clauses – These
may be portions where definitions or clarifications regarding the inclusions in
sections or definitions of words have been given, as used in the statute. These
can be inclusive or exhaustive definitions.

(vi)          
Proviso to a section – This gives
the treatment of exceptional cases; those which can be called as
qualifications, as they are to be treated in a different manner. It is
generally in a very language, and without any ambiguity. It has to be kept in
mind though, that it provides the exception to that particular section and
cannot be applied as a common rule.

(vii)       
Examples, illustrations or
explanations – If within the coverage of the provision of the section they
relate to, they can be treated as valuable aids to interpretation, as they
simplify the application of the section. They cannot, in any case, be seen as
making any extra provisions not mentioned in the section itself.

(viii)     
Schedules – These are there in
relation to the act itself as they provide the information mentioned in some
part of the act in greater detail, which aids application of the section. They
help in making the main act concise and provide a well-organized way of
presenting the statute. For example, the XIII Schedule of the Companies Act,
1956.

 

Q. What
external aids can we use for interpretation of statutes?

Ans.
The external or peripheral aids –

They
are as under –

(i)               
Legislative or parliamentary
history – This would help in giving a general direction to the
interpretation.  The parliamentary
history helps in understanding the trend of the legislative thought of the
country thus providing a background for the statute under study.

(ii)            
Committee reports – The reports
that are used as bases for statutes give a good insight into the very acts.
They are specialized studies into the need and scope of the act, as well as its
objectives. This also helps in clearing confusions about the usage of certain
terms used in the act itself, and provides an inside view to the act.

(iii)          
References to statutes in pari
materia – This rule of interpretation of statutes says that when there is
ambiguity in the comprehension of a statute, we can take the help of another
statute made on the same subject. The other statute may have been framed in a
different time, but if it relates to the same matter, it can provide a
direction to the interpretation of the statute in hand. The events for which
the statutes have been made may be comparable or with the same object.

(iv)          
Dictionaries – When the meaning
of terms is not clear from the statute itself, we can refer to dictionaries to
gather information about them. However, when we use such meanings in the legal
context, i.e. in the application of the act, we need to give due regard to the
context of the term, as the term might carry a different connotation in a
dissimilar context.

(v)            
Decisions passed by foreign
courts – These can be followed if they pertain to the same subject matter and
if countries having a similar legal backdrop have passed them. However, we will
use such decisions when they are contextually relevant. Moreover, we have to
take care to adapt them to the indigenous legal context and the other local
conditions.

 

The
external aids of interpretation are generally used when the statute is vague or
indistinct in meaning. Here, the inner means of interpretation would not serve
the purpose and some external means, like the circumstances that prevailed at
the time of making of the statute, committee reports, if any, links with other
acts, dictionaries or even case histories from other countries, would have to
be utilized. If there were other acts leading upto the current one, they could
be looked into as well on the assumption that they would shed some light over
the current statute.

These
external aids, however, have to be used with due care and only in situations
where the internal ones prove insufficient in giving an understanding of the
statute or its part. This is because firstly, they are extraneous to the
statute in question, and however close to the subject matter, they might not
give an accurate picture. For example, if an act is made in year 1889 regarding
a particular thing, and another is made in year 2008, the earlier act would not
give a true picture if used as an aid for interpretation of the new act. This
is because the conditions and situations of both acts were different; they were
made against different social, political and economic backdrops. This does not
mean that it cannot at all be use for shedding light on the subsequent act; it
simply means that it should be used in moderation and with care, and the
context and underlying situations too should be kept in mind, while doing so.
Only then would the interpretation be a fair one.

 

Short Notes

Q. What is the need for interpretation of statutes?

Ans. The exercise of interpretation of statutes helps in removing the
ambiguity in the comprehension of an act. It aids in understanding the statute
as the author intended it to be understood. The objects of interpretation might
be as under –

–        
The English language has a lot of scope for contextual
interpretation, since words change meaning when used in different contexts.

–        
It is necessary to know the milieu in which that act was made, i.e. the
state of the society, the legal conditions, etc.

–        
It becomes essential at time to know the author’s intentions in making
the act in order to allow it proper room to operate, and to address all the
issues it was made for.

 

The
Halsbury’s Laws of England state that interpretation involves getting to the
real meaning of the words of the author of the statute. These have formed the
cornerstone of interpretation of statutes.

 

Q. What presumptions are used in interpretation?

Ans. Presumptions are used in the interpretation of
statutes only when the intention of the legislature is not clear; when it is
clear, they are to be avoided. Conjecture or suppositions are used when it
becomes difficult to comprehend the statute in its own light. The basic
presumptions used in the interpretation of statutes are as follows –

(i)               
The words used in the statute have been used in the literal sense with
precise meanings unless otherwise defined.

(ii)            
There has been effected no change I the rights of the people unless the
statute prescribe such a change expressly.

(iii)          
Liability only attaches where there is mens rea (guilty mind).

(iv)          
The state or governmental institutions, unless expressly covered, are
deemed to be exempted.

(v)            
The legislature, while passing the new statute was aware of the manner
of functioning of the judiciary and the executive as well as the legal
condition in the country and unless stated, has not caused any changes in it.

(vi)          
 No mistakes have been committed
by the legislature in drafting the statute.

(vii)       
No pointless activity would be enjoined on the people. 

(viii)      The statute has been made
with a view to exercise the powers given through it equitably and fairly.

(ix)          
Where the statute creates a legal duty that is accompanied by a legal
power, and cannot stand without it, it is assume both go together.

 

 

 

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