Module 1

Interpretation and its needs

Interpretation means the art of finding out the true sense of enactment by giving the words of the
enactment their natural and ordinary meaning. It is the process of ascertaining the true meaning
of words used in a statute. The Court is not expected to interpret arbitrarily and therefore there
have been certain principles which have evolved out of the continuous exercise by the courts.
These principles are sometimes called the ‘rules of interpretation’.

According to Salmond, interpretation is the process by which the courts seek to ascertain the
meaning of the legislature through the medium of authoritative forms in which it is expressed.”
Interpretation of statute is the process of ascertaining the true meaning of the words used in a
statute. When the language of the statute is clear, there is no need for the rules of interpretation.
But, in certain cases, more than one meaning may be derived from the same word or sentence. It
is, therefore, necessary to interpret the statute to find out the real intention of the statute.

Interpretation of Statutes is basically required for two reasons:-

1. Legislative language – It may be complication for a layman, and hence may require
interpretation; and
2. Legislative Intent – The intention of the legislature or legislative intent assimilates two
aspects: a) the concept of meaning i.e. what the word means; and b) the concept of
purpose and object pervading through the statute.

The necessity of interpretation would arise only where the language of a statutory provision is
ambiguous, not clear or where two views are possible or where the provision gives a different
meaning defeating the object of the statute. If the language is clear and ambiguous, no need for
interpretation would arise.
Difference between Interpretation and Construction

1. In law, interpretation refers to understanding the words and true sense in the provision of
the statute. On the other hand, construction is described as drawing conclusions, in
relation to the case, that lie beyond the outright expression of the legal text.
2. While interpretation is all about the linguistic meaning of the legal text, Construction
determines the legal effect of the words and writing of the statute.
3. When the simple meaning of the legal text is to be drawn, then that will be called an
interpretation. Conversely, when the literal meaning of the words used in legal text
results in ambiguity, the construction is opted, so as to decide whether the case is covered
by it or not.

Nature and kinds of laws; Meaning and scope of Statute

Statutory, Non-statutory, Codified, Uncodified, State-made and State-recognized laws

Statutory Law is the term used to define written laws, usually enacted by a legislative body.
Statutory laws differ from regulatory, administrative, and common law. Regulatory or
administrative laws are passed by executive agencies. Common law is generated through court
decisions.

Statutory laws follow the usual process of legislation. A bill is proposed in the legislature and
voted upon. If approved, it passes to the executive branch (either a governor at the state level or
the president at the federal level). If the executive signs the bill it passes into law as a statute. If
the executive fails or refuses to sign the bill, it can be vetoed and sent back to the legislature.

Common law is law that a judiciary creates over time. It’s not passed by a legislative body.
Instead, case by case, the judiciary determines what they think are sound principles of law. When
they apply these principles, one at a time, in real cases, common law develops. This isn’t
statutory law. Statutory law is created in one act by a legislative body. It isn’t piecemeal like
common law. Rather, statutory law either exists, or it doesn’t.

Administrative law is the body of law that’s created by executive agencies. Legislators
authorize the agencies to exist. They allow the agencies to make their own rules in their area of
governance.
For example, if a state has a department of natural resources or a department of water
conservation, they might authorize the department to create their own laws and rules about
hunting and fishing. These rules have the force of law, and they can even be misdemeanor or
felony offenses. However, they’re not statutory law. Statutory law comes from a legislative body
rather than from executive administrators or bureaucrats.

“Code” means a systematic collection of statutes so arranged as to avoid inconsistency and

overlapping. So codification means collection, compilation, systemization and promulgation of
that body of laws in a coherent form by an authority, such as the government or the judiciary.

Uncodified laws are those that originated from sources such as court decisions, customs and
principles of jurisprudence. Simply the term 'Codified' means the constitution is written down in
a single document. The US constitution is codified.

An uncodified constitution just means it's not written down in one single document; the
constitution could be found in many documents or even not written down- this is called a
convention- where it's just tradition that gives a law it's power.

Statute – Statute simple means a written law passed by a legislative body.

General Clauses Act, 1897

It codifies all the rules of statutory interpretation. This Act is not confined to any particular
branch of law, but applies to all branches of law. It makes provisions as to construction of
general acts.

Objects:

a) To shorten the language of central acts and make it easily understandable.

b) To provide, as far as possible, for uniformity of expression in central acts, by giving

definitions of a series of terms in common use.

c) To state explicitly certain convenient rules for the construction and interpretation of central
acts.
Why to give importance to general clauses act?

By Article 367 of the Constitution, the General Clauses Act has been made applicable for
interpretation of the Constitution; it has been held that section 6 is not applicable to the repeal
brought about by the Constitution itself.

Because of Article 367 of the Constitution, the General Clauses Act, 1897, "unless the context
otherwise requires", applies for construction of the Constitution.

The definition of "State" in section 3(58) of the General Clauses Act, 1897 includes "Union
Territories" and, therefore, the word "State" in Article 3 and Entry 80 of the Union List in the
Constitution includes Union Territories. But as the context otherwise requires the word "State" in
Article 246 does not include Union Territories.
Module 2
General Rules of Interpretation

1. Literal Rule
2. Golden Rule
3. Mischief Rule
4. Rule of harmonious construction
5. Rule of strict interpretation

Literal Rule of interpretation

This rule is also called grammatical interpretation. This rule basically looks into what the law
says, not what the law means. It considers the original meaning of the word. Here judges cannot
come up with the words and interpret according to case basis. When the language used is simple
and the words have only one meaning to it at that time, judges will use this literal rule of
interpretation.

Case – R v Harris, 1836

The defendant bit off the victim’s nose. The statute says it is offence ‘to stab cut or wound’ a
person. Here the court applied the literal rule, the act of biting did not come within the meaning
of stab cut or wound as these words implied an instrument had to be used. Therefore, the
defendant’s conviction was quashed.

Fisher v Bell, 1960

Under the ‘Offensive Weapons Act of 1959’, it is an offence to offer certain offensive weapons
for sale. Bristol Shopkeeper, James Bell displayed a flick knife in his shop window. When
brought it to trial, it was concluded that Bell could not be convicted given the literal meaning of
the statute. The law of contract states that having an item in a window is not the intention of sale
but is an invitation to treat. Hence, Bell could not be convicted.
Deepak Aggarwal v Keshav Kaushik, (2013) 5 SCC 277, p 331. -

Article 233(2) of the Constitution of India, provides that a person shall only be eligible to be
appointed as a District Judge if he has been, for not less than seven years, an advocate or pleader,
and is recommended by the High Court for appointment.

Literal Interpretation – Supreme Court held that it is clear from the expression "has been" that
the present perfect continuous tense is used for a position which began sometime in the past and
is still continuing, and that therefore such person must, with the requisite period, still be
continuing as an advocate on the date of his application.

Criticism to Literal Rule

 Judges started giving more importance to the literal meaning of the statutory provisions
without considering the wider meaning of the context.
 This method ignores the limitations of the language.
 Words undergo changes in their meaning as time passes.
 Basing it on a wrong assumption that a word has only one fixed meaning.
 Lack of clarity in the statute.
 This leads us to prejudices and determines the meaning of the statute.

Golden Rule of Interpretation

This rule is also called as British rule of interpretation. The Golden rule is the modification of the
principle of grammatical interpretation. It is a form of statutory interpretation which allows a
judge to depart from a normal meaning of the word in order to avoid an absurd result. In order to
overcome an absurd result, the judges will give a chance to the lawyer to come up with a new
interpretation to the law which will be more certain and accurate to the case. As this rule solves
all problems, it is known as golden rule.

This method of interpretation is also known as the compromise method between literal rule and
the mischief rule. In the literal rule, judges will only use the word meaning nothing else, but
sometimes this may be irrational and gives unexpected results which will be unlikely to the
legislator’s intention.
This rule is used in two main situations:-

1. When the meaning of the word is too narrow

2. When the word itself has ambiguity or absurdity

For Example: Whenever you stand near the lift it will be written that ‘’Do not use lifts in case of
fire.’’ if you consider it in a literal meaning you should never use the lifts, this would be an
absurd result because the intention of the person who put the sign is to prevent using of lift when
there is live fire burning anywhere near the lift.

The Golden Rule is First time Propounded in Grey v Pealson (1857), Lord Wensleygale said:
“The literal rule should be used first, but if it results in absurdity, the grammatical and ordinary
sense of the words may be modified, so as to avoid absurdity and inconsistency, but no further”.

This became known as "Lord Wensleydale's golden rule". It only applies where the words are
ambiguous. An interpretation that is not absurd is to be preferred to one that is.

Case: R v Allen, 1872

The defendant was charged with an offence of bigamy under section 57 of ‘Offence Against
Person Act 1861’. The statutes states “whomsoever being married shall marry any other person
during the lifetime of husband and wife is guilty of an offence.”

Under the literal rule of interpretation of this section, the offence would be impossible to commit
since the civil law will not recognize a second marriage as an attempt to marry, in such
circumstances would not be recognized as a valid marriage. Court applied the golden rule and
held that the word marriage should be interpreted as ‘to go through a marriage ceremony.’ The
defendant was convicted and held guilty.

Case: Adler v George case, 1964

Under section 3 of the ‘Official Secrets Act, 1920’ it was an offence to obstruct HM Forces in
the vicinity of a prohibited area. Adler was arrested for obstructing forces whilst in a prohibited
area. Under The Literal Rule, Adler was not in the vicinity of the area; he was in the area and so
was not infringing the terms of the act. The Golden Rule was applied to extend the meaning of
‘vicinity’ and avoid the possible absurd outcome.
Case: Kehar Singh v. State (Delhi Admn.) AIR 1988 SC 1883

The Supreme Court has observed that there is a change in the approach of the Courts in the
interpretation of the Statute and what was considered as the golden rule previously laying
emphasis on “grammatical meaning” is now changed over to “intention of legislature” or
“purpose of Statute”.

Problems with the Golden Rule

1. Judges are able to add or change the meaning of statutes and thereby become law makers
infringing the separation of powers.
2. Judges have no power to intervene for pure injustice where there is no absurdity.

Advantages of Golden Rule

1. Errors in drafting can be corrected immediately

2. Decisions are generally more in line with Parliament’s intention
3. Closes loopholes
4. Often gives a more just result
5. Brings common sense to the law

Mischief Rule

The Mischief Rule is a kind of statutory interpretation where it attempts to determine the
intention of the legislators. It basically originated in the 16th century by the Heydon’s case in the
United Kingdom. The main objective is to find out the mischief and defect of the previous statute
which was in question and how the new statute will come up with the remedy that resolves the
defect. The main purpose of bringing the amendments in the statute is to add on additional areas
or to make certain changes in the existing law and make it wider where it covers many
circumstances. So here we can observe the retrospective effect in the process of making laws.

This rule is also called purposive construction as there is a purpose behind making this ruling.
Here court attempts to know the intention of the legislators for bringing in the change in the law.
It also tries to analyze the mischief and the defect which was present in the previous law which
leads to the creation of the new law.
Heydon’s Case

This case helps us to know four important points which we have to keep in mind while statute
interpretation.

1. What was the common law before making the act?

2. What was the mischief or defect which the common law did not provide?
3. What remedy did the Parliament had resolved by appointing to cure the disease of the
commonwealth?
4. What is the true reason behind the remedy?

Case: Bengal Immunity Co. V State of Bihar, 1955

In this case, the mischief rule was applied to the construction of Article 286 of the Constitution
of India, observing 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
Constitution.

Case: Thomas v Lord Clan Morris

Here it was stated that interpretation of any statutory enactment should not only restrict them to
the interpretation of words and phrases used, but they should also look at the history of the act
and the reasons behind passing such acts.

Advantages:

 Law Commission finds mischief rule more efficient as it is opposed to literal and golden
rule.
 It avoids unjust and absurd results.

Disadvantages

 It is considered as an outdated rule as it came into the picture in the 16th Century
 Gives excess power to the judiciary who are unelected and it is considered undemocratic
 This makes the law uncertain
  In the 16th Century, the kings used to give judiciary complete power to draft laws so at
that time they were qualified about the mischief acts.

Rule of Harmonious Construction

This rule of interpretation is adopted when there is a conflict between two or more statutes or
between two provisions of the same statute. Every law has a certain purpose set, so judges should
take purposes into consideration and it should be read as a whole while interpreting. Judges
should apply such provisions which are in accordance with the public interest. The laws which
are applied must be consistent and shouldn’t overlap with other existing laws.

Sometimes it’s impossible to harmonize between two provisions of the statute at that time the
decision of the judges will prevail above everything. When there is a “head-on clash” between
the provisions of law, the judges should bring harmony and make justice to both parties.

Supreme Court has laid down five principles of rule of Harmonious Construction in the landmark
case of CIT v Hindustan Bulk Carriers:

1. The Courts should avoid such provisions which are contradicting in nature and which
brings the head-on clash between each other.
2. The courts should interpret in such a way that brings harmony to the contradicting
provisions.
3. The provision of one section cannot defeat the other provision.
4. When a court fails to bring harmony to both parties, it should atleast interpret in such a
manner where both the provisions are given effect as much as possible.
5. Courts should keep in mind that the interpretation which reduces one provision to the
dead is not harmonious, here harmonising doesn’t mean destroying.

-----------E.N.D. S.E.M.E.S.E.T.E.R----------

Module III – Application of Maxims in Statutory

Interpretation
Noscitur a sociis

The application of Noscitur a sociis is a rule of construction. It is one of the rules of language use
by court to interpret legislation. This means that, the meaning of an unclear word or phrase
should be determined by the words immediately surrounding it. The questionable meaning of a
doubtful word can be derived from its association with other words. It can be used wherever a
statutory contains a word or phrase that is capable of bearing more than one meaning.

This rule is explained by Maxwell in simple words, “When two or more words susceptible of
analogous meaning are coupled together, they are understood to be used in their cognate sense.”
The words take their colour from and are quantified by each other, the meaning of the general
words being restricted to a sense analogous to that of the less general.

Scope

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 cannot 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 words of narrower significance
is doubtful, or otherwise not clear that present rule of construction can be usefully applied.

Bageshwari Charan Singh v Jagannath, AIR 1932 PC 55,

'Declare' is placed along with 'create', 'limit' or 'extinguish' a right, title or interest and these
words imply a change of legal relation to the property by an expression of will embodied
in the document. — I think this is equally the case with the word 'declare'. It implies a
declaration of will, not a mere statement of fact.

In construing the word "declare" in the phrase "to create, declare, assign, limit or extinguish" as
it occurs in section 17 of the Indian Registration Act, 1908, the Privy Council held that though
the word "declare" was capable of bearing a wider meaning but in section 17, being in
association with other words, its meaning was restricted to connote a definite change of legal
relationship as distinct from a mere statement of facts.
Limitation to the rule

The rules need not to be applied where the series of words convey a clear and definite
meaning - It is not always correct to interpret the general words in the light of 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 words must be carefully looked into.

Commissioner of Custom v Savoy Hotel, (1966) 2 All ER 299

While dealing with a Purchase Tax Act, which used the expression "manufactured beverages
including fruit-juices and bottled waters and syrups etc.", it was held that the description
"fruit-juices" as occurring therein should be construed in the context of the preceding words
and that orange-juice unsweetened and freshly pressed was not within the description.

Rainbow Steels Ltd v Commissioner of Sales Tax, AIR 1981 SC 2101 –

In interpreting Entry 15 of the Schedule to the UP Sales Tax Act, 1948 which reads "old,
discarded, unserviceable or obsolete machinery stores or vehicles including waste products",
the expression "old" was construed to refer to old machinery which had become non-
functional or non-usable.

Ejusdem Generis

According to Black’s Law Dictionary, the principle of this maxim is where general words follow
an enumeration of persons or things, by words of a particular and specific meaning, such general
words are not to be construed in their widest extent, but are to be held as applying only to
persons or things of the same general kind or class as those specifically mentioned. It is a canon
of statutory interpretation, where general words follow the enumeration of particular classes of
things, the general words will be construed as applying only to things of the same general class
as those enumerated.

The expression simple means of the same kind. Normally general words should be given their
natural meaning unless the context requires otherwise. But when a general word follows specific
words of a distinct category, the general word may be given a restricted meaning of the same
category. The general expression takes it meaning from the preceding particular expressions
because the legislature by using the particular words of a distinct genus has shown its intention to
that effect. This principle is limited to its application to general word following less general word
only. If the specific words do not belong to a distinct genus, this rule is applicable. Consequently,
if a general word follows only one particular word, that single particular word does not constitute
a distinct genus, therefore, Ejusdem Generis rule cannot be applied in such a case.

Tillman Ltd. v S.S. Knutsfor d Co. 1908 – Where this maxim rule was applied. The basic rule
is that if the legislature intended general words to be used in unrestricted sense, then it need not
have used particular words at all. This rule is not of universal application.

Example – ‘Cattle and Bull’ – If two words having similar meaning are used and one is general
and the other is more specific, the later word qualifies the former. This rule can be illustrated by
a reference to the decision of the Kerala High Court in the case of Kerala Cooperative
Consumers’ Federation Ltd v. CIT 1988. In this decision, the court was required to interpret
the meaning of the phrase ‘Body of individuals’. It has said that in construing words ‘Association
of Persons’. The term ‘Body of individuals’ would have to be understood in the same
background, context and meaning given to the words “Association of Persons”.

The Supreme Court in Siddeshwari Cotton Mills (P) Ltd v. UOI, 1989, while interpreting the
expression ‘any other process’ appearing along-with the words ‘bleaching, mercerizing, dyeing,
printing, water-proofing, rubberizing, shrink-proofing, organic processing’ in section 2(f) of the
Central Excise & Salt Act, 1944 (as it stood prior to its substitution by Central Excise Tariff Act,
1985) read with Notification No 230 and 231 dated 15th July, 1977 with the aid of the principle
of Ejusdem Generis has said that the foregoing words, which precede the expression 'or any
other process' contemplate process, which import a change of a lasting nature must share one or
the other of these incidents.

The rule of Ejusdem Generis applies as mentioned by the Supreme Court in Amarchandra
Chakraborty v. Collector of Excise, 1972 when:

 The statute contains an enumeration of specific words

 The subjects of enumeration constitute a class or category
 The class or category is not exhausted by the enumeration
  The general item follows the enumeration
 There is no indication of a different legislative intent

Reddendo Singula Singulis

This maxim is a latin term that means by referring each to each; referring each phrase or
expression to its corresponding object. In simple words, it means that when a list of words has a
modifying phase at the end, the phrase refers to only the last. It is a rule of construction used
usually in distributing property. Where there are general words of description, following a record
of particular things, such general words are to be construed distributively, and if the general
words will apply to some things and not to others, the general words are to be applied to those
things to which they will, and not to those to which they will not apply; that is to say, each
phrase, word or expression is to be referred to its suitable objects.

For example – When a will says “I devise (intend to) and bequeath (write a will) all my real and
personal property to A, the principle of reddendo singular singulis would apply as if it read “I
devise all my real property, and bequeath all my personal and real property to B, since the word
devise is appropriate only to real property and the term bequeath is appropriate only to personal
property. The principle concerns the use of words distributively. Where a complex sentence has
more than one subject, and more than one object, it may be the right construction to provide each
to each, by reading the provision distributively and applying each object to its appropriate
subject. A similar principle applies to verbs and their subjects, and to other parts of the speech.

Sandberg v McDonald – The penalty provisions of the Seaman’s Act of 1915 may be
distributively applied and such application has many examples in legislation. It is justified by the
rule of reddendo singula singulis. By it words and provisions are referred to their appropriate
objects, resolving confusion and accomplishing the intent of the law against, it may be, a strict
grammatical construction.

This legal maxim has also been applied to the case of Koteshwar Vittal Kamat v. K Rangappa
Baliga, 1969 – Proviso to Article 304: Provided that no Bill or amendment for the purposes of
clause shall be introduced or moved in the Legislature of a State without the previous sanction of
the President. It was held that the word introduced applies to bill and moved applies to
amendment. Where a sentence in a statute contains several antecedents and several
consequences, they are to be read distributively, that is to say, each phrase or expression is to be
referred to its appropriate object.

Nabha Power Limited v. Punjab State Power Corporation Ltd, 2020 – The appellant also
invoked the principle of ‘business efficacy’ and the maxim ‘Reddendo Singula Singulis’ for
interpreting the terms of the PPA and the Energy Charges Formula, as set out at Article 1.2.3 of
Schedule 7 of the PPA.

Where there are general words of description, following an enumeration of particular things such
general words are to be construed distributively, reddendo singula singulis; and if the general
words will apply to some things and not to others, the general words are to be applied to those
things to which they will, and not to those to which they will not apply; that rule is beyond all
controversy.

Expressio Unius Exclusio Alterius

It is a Latin phrase that means express mention of one thing excludes all others. This is one of the
rules used in interpretation of statutes. The phrase indicates that items not on the list are assumed
not to be covered by the statute. When something is mentioned expressly in a statute it leads to
the presumption that the things not mentioned are excluded. This is an aid to construction of
statutes.

R (Veolia ES Nottinghamshire Ltd) v Nottinghamshire County Council, 2010 – Section

15(3) of Audit Commission Act 1998, grants a specific exception to the section 15(1) right of
inspection so far as any document ‘contains personal information’. ‘Personal information’ is
closely defined and cannot extend to commercial confidential information of the kind in issue in
these proceedings. The argument is made (based on the principle of expression unius exclusion
alterius) that the express exception made in favour of personal information prevents any
consideration of a further exception in favour of confidential information.

Parbhani Transport Cooperative Society Ltd v Regional Transport Authority,

Aurangabad & ors, 1960 – It is a maxim for ascertaining the intention of the legislature. Where
the statutory language is plain and the meaning clear, there is no scope for applying this rule.
Drawback – Maxim is rarely applied by a court.
Generalia Specialibus Non Derogant

It is a latin maxim which when interpreted means that general laws do not prevail over special
laws or, the general does not detract from specifics. This maxim has been widely used in cases
where there is a conflict between general and special provisions of an act or different acts. It has
helped our judiciary in the interpretation of statutes. Using this maxim along with other
interpretation tools provides a better understanding of various statutes thus aiding in
implementing the law in a better fashion and preventing repeal.

When two provisions are in conflict and one of them deals specifically with the matter in
question while the other is of more general application, the conflict may be avoided by applying
the specific provision to the exclusion of the more general one. The specific prevails over the
general; it does not matter which was enacted first. This strategy for the resolution of conflict is
usually referred to by the Latin name generalia specialibus non derogant. The English term
“implied exception” is adopted for, in effect, the specific provision implicitly carves out an
exception to the general one.

Justice Griffith said in R v Greenwood, 1992 – For the purpose of interpretation of two statutes
in apparent conflict, the provisions of a general statute must yield to those of a special one. The
provisions of the special rule are preferred over general rule as they are meant to address that
subject in greater detail. This may manifest as exceptions to the general rule.

Suresh Nanda v CBI - There are 2 acts that provide for impounding of passports: CRPC and
Passports Act, 1967. In this case, the petitioner lost access to his license as the result of
the procedures of a case in which he was the accused. His passport was seized by C.B.I.,
thus, he couldn’t travel. In this case, there was a conflict between section 104 of CrPC
and section 10(3) of the Passport Act. The court decided that: Since impounding of
passports are governed by special legislation namely the passports act, normal CrPC
provisions concerning impounding shall not be attracted, the courts or the police can at
best seize a passport, but for impounding (which is far more enduring and continuous
possession) passport authority would have to be approached– and the authority can take a
decision on whether it would be impounded or not.
 In this case, the scope of the law under CrPC was defined by saying that the courts or the
police cannot impound but can only seize a passport. As impounding (permanent seizure)
a passport has far-reaching and permanent consequences, special law provisions will
prevail to provide a better remedy to the petitioner.

Limitations – The application of this maxim negates the use of the principle: Harmonious
Construction and Principle of the election.

It is evident that more than one form of remedy exists for the same issue under two different acts.
Thus, the courts should perform harmonious construction and principle of election. Principle of
election means that the remedy to be applied should be left to the discretion of the concerned/
aggrieved individual when there is more than one remedy available.

Ut Res Magis Valet Quam Pareat

This maxim is a rule of construction which literally means the construction of a rule should give
effect to the rule rather than destroying it i.e. when there are two constructions possible from a
provision, of which one gives effect to the provision and the other renders the provisions
inoperative, the former which gives effect to the provision is adopted and the latter is discarded.
It generally starts with a presumption in favor of constitutionality and prefers a construction
which embarks the statute within the competency of the legislature. But it is to be noted that
when the presumption of the constitution fails, then the statutes cannot be rendered valid or
operative accordingly. The landmark case of Indra Sawhney (2000), where the Supreme Court
struck down the state legislation as it was violative of constitution and ultra-vires of the
legislative competency.

It is the duty of the court to try and avoid that construction which attributes irrationally to the
legislature. And hence must obviously prefer such a construction which renders the statutory
provision constitutionally valid instead of making it void. Similarly, "In the case of an
agreement, also, the Courts are bound so to construe it, ut res magis valeat quam pereat - so
that it may be made to operate rather than be inefficient; and, in order to affect this, the words
used shall have a reasonable intendment and construction.
Case – In Marquest Industries v Willows Poultry farms, Justice Bull said, “If the real
intentions of the parties can be collected from the language within the four corners of the
instrument, the Court must give effect to such intentions by supplying anything necessarily to be
inferred and rejecting whatever is repugnant to such real intentions so ascertained”.

Case – Corporation of Calcutta v Liberty Cinemas, 1956 – When it comes to interpreting any
provision or law it is very vital to note that there are almost always two interpretations that may
arise. One which is ultra vires while the other which is intra vires. According to this maxim, the
latter interpretation shall always prevail over the former. If the words of the statute on a proper
construction can be read only in a particular way, then it cannot be read in any other way by a
court of construction anxious to avoid its unconstitutionality.

MODULE IV – Internal Aids to Interpretation

An ‘aid’ is a device that helps or assists. While performing the function of interpreting provisions
of a statute, the court can take help from within the statute or even outside the statute. The former
is called ‘internal aids’ and the latter is called ‘external aid’. The internal aids include title,
preamble, headings, marginal notes, illustrations, punctuations, proviso, definition or
interpretation clauses, explanations, schedules and punctuation.

Title

Short Title – The short title of any act is only its name and is given solely for the purpose of
facility of reference. It is merely a name given for the identification of the Act and not for
description and generally ends with the year of passing the Act, such as Indian Contract Act,
1872, the Indian Penal Code, 1860, the Indian Evidence Act, 1872. Even though it is a part of the
statute, it has no role to play while interpreting a provision of the Act. Neither can it extend nor
can it delimit the clear meaning of a particular provision.

Long title – A statute is headed by a long title whose purpose is to give a general description
about the object of the act. Normally it begins with the words An Act to…

For instance, the long title of the CrPC, 1973 says: An Act to consolidate and amend the law
relating to criminal procedure, and that of the Prevention of Corruption Act, 1988 says: ‘An Act
to consolidate and amend the law relating to the prevention of corruption and matters connected
therewith.’

In the olden days, the long title was not considered a part of the statute and was, therefore, not
considered an aid while interpreting it. There has been a change in the thinking of courts in
recent times and there are numerous occasions when help has been taken from the long title to
interpret certain provisions of the statute but only to the extent of removing confusions &
ambiguities. If the words in a statute are unambiguous, no help is derived from the long title.

In Popatlal Shah v State of Madras, 1953 – The title of Madras General Sales Tax, 1939, was
utilized to indicate the object of the Act is to impose taxes on sales that take place within the
province.
In Amarendra Kumar Mohapatra v State of Orissa, 2014 – The court held that the title of a
statute determines the general scope of the legislation, but the true nature of any such enactment
has always to be determined not on basis of the label given to it but on the basis of substance.

In Manoharlal v State of Punjab, 1961 – It was held that no doubt the long title of the Act
extracted by the appellant’s counsel indicates the main purposes of the enactment but it cannot
control the express operative provisions of the Act.

Limitation of Title as Internal Aid

 Title has no roles to play when the words employed in the language are plain and precise
and bear only one meaning
 Title can be called in aid only when there is an ambiguity in the language giving rise to
alternative construction
 Title cannot prevail over the clear meaning of an enactment
 Title cannot be used to narrow down or restrict the plain meaning of the language of the
statute.

Preamble

The Preamble to the Act contains the aims and objectives sought to be achieved, and is therefore,
part of the Act. It is a key to unlock the mind of the law makers. Therefore in case of ambiguity
or uncertainty, the preamble can be used by the courts to interpret the provisions of that statute.
But there is a caution here. The apex court has held in Maharishi Mahesh Yogi Vedic
Vishwavidyalaya v State of M.P., 2013 – the court cannot have resort to preamble when the
language of the statute is clear and unambiguous.

Similarly it has been held that help from preamble could not be taken to distort clear intention of
the legislature – Burrakar Coal Company v Union of India, 1961. In re Kerala Education
Bill, 1957, it was observed that policy and purpose of the Act can be legitimately derived from
its preamble.

In Global Energy Ltd. v Central Electricity Regulatory Commission – It was held that the
object of legislation should be read in the context of the Preamble. In Maharashtra Land
Development Corporation v State of Maharashtra – it was held that Preamble of the Act is a
guiding light to its interpretation. Another important example is found in Kesavanada Bharati v
State of Kerala. 1973 – wherein the apex court strongly relied on the Preamble to the
Constitution of India in reaching a conclusion that the power of the Parliament to amend the
constitution under Article 368 was not unlimited and did not enable the Parliament to alter the
Basic structure of the Constitution.

Limitations of Preamble as Internal Aid

 Preamble can only be resorted to when the language of a provision is reasonably capable
of alternative construction
 Preamble cannot either restrict or extend the meaning and scope of the words used in the
enacting part
 In case of conflict between Preamble and a section, the Preamble would succumb and
section shall prevail
 Preamble cannot be regarded as a source of any substantive power or of any prohibition
or limitation.

Marginal Notes

Marginal Notes are those notes which are inserted at the side of the sections in the Act and
express the effect of the sections. These are known as side notes. In the old times, help used to be
taken sometimes from marginal notes when the clear meaning of enactment was in doubt. But
the modern view of the courts is that marginal notes should have no role to play while
interpreting a statute.

The basis of this view is that the marginal notes are not parts of a statute because they are not
inserted by the legislators nor are they printed in margin under the instructions or authority of the
legislature. These notes are inserted by the drafters and many times they can be inaccurate too.
However, there may be exceptional circumstances where marginal notes are inserted by the
legislatures and, therefore, while interpreting such an enactment, help can be taken from such
marginal notes. The Constitution of India is such a case. The marginal notes were inserted by the
Constituent Assembly and, therefore, while interpreting the Indian Constitution, it is always
permissible to seek guidance and help from marginal notes.
In Bengal Immunity Company v State of Bihar, the Supreme Court held that the marginal
notes to Article 286 of the Constitution were a part of the Constitution and therefore, it could be
relied on for the interpretation of that Article.

In Tara Prasad Singh v Union of India, it was held that marginal notes to a section of the
statute cannot take away the effect of the provisions.

In S.P. Gupta v President of India

 The Supreme Court held that if the relevant provisions in the body of a statute firmly
points towards a construction which would inflict with the marginal note, the marginal
note has to yield.
 If there is any ambiguity in the meaning of the provisions in the body of the statute, the
marginal note may be looked into as an aid to construction.

Limitations of Marginal Notes as Internal Aid

 Marginal notes are very rarely used for interpretation as they are not considered to be a
good aid to construction.
 Only those marginal notes can be used for construing a provision which have been
inserted with assent of the legislature.
 Marginal notes can be called in aid only when language suffers from ambiguity and more
than one construction is possible.
 Marginal notes cannot frustrate the effect of a clear provision.

Headings

In all modern statutes, generally headings are attached to almost each section, just preceding the
provisions. For example, the heading of Section 437 of the CrPC, 1973 is “When bail may be
taken in case of non-bailable offence”. Headings are not passed by the Legislature but they are
subsequently inserted after the Bill has become law.

Headings are of two kinds – One which is prefixed to a section and the others which are prefixed
to a group or set of actions. These headings have been treated by courts as preambles to those
sections or set of actions. Naturally the rules applicable to the preamble are followed in the case
of headings also while interpreting an enactment. Therefore, if the plain meaning of an
enactment is clear, help from headings cannot be taken by the courts. However, if more than one
conclusion is possible while interpreting a particular provision, the courts may seek guidance
from the headings to arrive at the true meaning.

A heading to one set of actions cannot act as an aid to interpret another set of actions – Shelly v
London County Council, 1949. But chapter heading can be used to interpret ambiguous
provisions – Bullmer v I.R.C.

In Sarah Mathew v Institute of Cardio Vascular Diseases, it was held that sectional headings
have a limited role to play in the construction of statutes. The heading of Chapter XXXVI of
CrPC is not an indicator that the date of taking cognizance is the date on which limitation period
commences. In N.C. Dhoundial v Union of India, it was held that “Heading” can be relied upon
to clear the doubt or ambiguity in the interpretation of the provision and to discern the legislative
intent.

Limitations to Headings as Internal Aid

 Headings can neither cut down nor extend the plain meaning and scope of the words used
in the enacting part.
 Headings cannot control the clear and plain meaning of the words of an enactment.

Illustrations

Illustrations are sometimes appended to a section of a statute with a view to illustrate the
provision of law explained therein. A very large number of Indian Acts have illustrations
appended to various sections. They being the show of mind of the legislature are a good guide to
find out the intention of the framers. But an enactment otherwise clear cannot be given an
extended or a restricted meaning on the basis of illustrations appended therein

The Supreme Court in Mahesh Chand Sharma v Raj Kumari Sharma observed that
illustration is a part of the section and it helps to elucidate the principle of the section. However,
illustrations cannot be used to defeat the provision or to modify the language of the section. This
is reflected by a legal maxim “Exampla illustrant, non-restringent legem” which means
examples only illustrate but do not narrow the scope of rule of a law.
In Mudliyar Chatterjee v International Film Co, it was observed that in construing a section,
an illustration cannot be ignored or brushed aside. In Mohammed Sydeol Ariffin v Yeah Ooi
Gark, it was held that illustrations are of relevance and value in the construction of the text of
the section, although they do not form part of the section. Therefore, they should not be readily
rejected as repugnant to the sections.

Exceptions and Saving Clauses

Exceptions are generally added to an enactment with the purpose of exempting something which
would otherwise fall within the ambit of the main provision. For instance, there are ten
exceptions attached to Section 499, IPC which defines ‘Defamation’. These ten exceptions are
the cases which do not amount to defamation.

Similarly, there are five exceptions attached to Section 300 of the IPC which defines ‘Murder’.
These five exceptions are the cases which are not murders but culpable homicide not amounting
to murder. An exception affirms that the things not exempted are covered under the main
provision. In case a repugnancy between an operative part and an exception, the operative part
must be relied on. Some decisions have, however, been given on the principle that an exception,
being the latter will of the legislature, must prevail over the substantive portion of the enactment.

In Director of Secondary Education v Pushpendra Kumar, the Supreme Court held that a
provision in the nature of an exception cannot be so interpreted as to subserve the main
enactment and thereby nullify, the right conferred by the main enactment. In Collector of
Customs v. M/s. Modi Rubber Ltd, the Supreme Court held that whenever there is a provision
in the nature of an exception to the principal clause thereof; it may be construed with regard to
that principle clause.

Saving Clauses are generally appended in cases of repeal and re-enactment of a statute. By this,
the rights already created under repealed enactment are neither disturbed nor are new rights
created by it. A saving clause is normally inserted in the repealing statute. In the case of a clash
between the main part of the statute & a saving clause, the saving clause has to be rejected.

In Shah Bhojraj Kuverji Oil Mills v Subhash Chadra Yograj Sinha, the Supreme Court did
not allow the use of a saving clause, which was enacted like a proviso, to determine whether a
section in an Act was retrospective in operation. In Agricultural and Processed Food Products
v Union of India, the Supreme Court while interpreting the saving clause in the Export Control
Order, 1988 held that the clause only saved the rights which were in existence before the order
was issued and it did not confer new rights which were not in existence at the time.

Schedules

Schedules attached to an Act generally deals with as to how claims or rights under the Act are to
be asserted or as to how powers conferred under the Act are to be exercised. The Schedules are
appended towards the end of the enactment. Sometimes, a schedule may contain some subjects in
the form of a list as is the case with the Constitution of India to enable the Union and the states to
legislate in their respective fields.

Schedules are parts of the Statute itself and may be looked into by courts for the purpose of
interpreting the main body of the statute. Similarly, while interpreting the schedules help may
always be taken from the main body of the Act to find out the true spirit of the Act. Sometimes, a
schedule may contain transitory provisions also to enable an Act to remain in existence till the
main provisions of the Act begin to operate, such as the Ninth Schedule of the Government of
India, 1935.

In M/s Aphali Pharmaceuticals Limited v State of Maharashtra, the Supreme Court held that
in case of a clash between the schedule and the main body of an Act, the main body prevails and
the schedule has to be rejected. In Jagdish Prasad v State of Rajasthan & ors, the Supreme
Court ruled that the purpose of a schedule is to advance the object of the main provision and
deletion of the schedule cannot wipe out provisions of an Act in effect and spirit.

Punctuation

In ancient times, statutes were passed without punctuation and naturally, therefore, the courts
were not concerned with looking at punctuation. But in modern times statutes contain
punctuation. Therefore, whenever a matter comes before the courts for interpretation, the courts
first look at the provision as they are punctuated and if they feel there is no ambiguity while
interpreting, the punctuated provision, they shall so interpret it. However, while interpreting the
provision in the punctuated form if the court feels repugnancy or ambiguity, the court shall read
the whole provision without any punctuation and if the meaning is clear will so interpret it
without attaching any importance whatsoever to the punctuation.

In Aswini Kumar v Arabinda Bose, the Supreme Court held that punctuation cannot be
regarded as a controlling element and cannot be allowed to control the plain meaning of a text.
Therefore, in Shambu Nath Sarkar v State of West Bengal, the Supreme Court held that the
word ‘which’ used twice in Article 22(7) of the Constitution, followed by a comma after each,
was to be read conjunctively because the context so required.

In Dadaji v Sukhdeobabu, the Supreme Court held that the punctuation marks by themselves do
not control the meaning of a statute where its meaning is otherwise obvious.

Limitation of Punctuation Marks as Internal Aid

 Some jurists have opined that punctuation marks are of no use as internal aids to
construction and it is an error to rely on punctuation marks in construing the Acts of
Legislature.
 Presence of comma or absence of comma must be disregarded if it is contrary to plain
intention of the statute.

Explanations

Explanations are inserted with the purpose of explaining the meaning of a particular provision
and to remove doubts which might creep up if the explanation had not been inserted. It does not
expand the meaning of the provision to which it is added but only ties to remove confusion, if
any, in the understanding of the true meaning of the enactment.

A large number of Indian Acts have explanations attached to various sections. For instance,
Section 108 of IPC which defines the word ‘abettor’ has five explanations attached to it.
Sometimes, explanations are inserted not at the time of enactment of a statute but at a later stage.
For instance, the two explanations of Section 405 of IPC, which defines the crime of ‘Criminal
breach of trust’, were inserted in 1973 and 1975 respectively.

There may be a case where in spite of many clauses in a section only one explanation is attached
to the section as is the case with Section 20 of CPC, 1908. In such a case, it must be seen as to
which clause the explanation is connected with – Patel Roadways Ltd v Prasad Trading
Company.

In Bengal Immunity Company v State of Bihar, the SC observed that an explanation is a part
of the section to which it is appended and the whole lot should be read together to know the true
meaning of the provision. In Bihta Co-operative Development Cane Marketing Union v State
of Bihar, the SC said that in case of a conflict between the main provision and the explanation
attached to it, the general duty of the court is to harmonize the two.

The object of an explanation to a statutory provision is:

 To explain the meaning and intendment of the Act itself;

 Where there is any obscurity or vagueness in the main enactment, to clarify the same so
as to make it consistent with the dominant object which it seems to subserve;
 To provide additional support to the dominant object of the Act in order to make it
meaningful and purposeful.

An explanation cannot in any way interfere with or change the enactment of any part thereof but
where some gap is left which is relevant for the purpose of the explanation, in order to suppress
the mischief and advance the object of the Act it can help or assist the court in interpreting the
true purport and intendment of the enactment, and it cannot, however, take away a statutory right
with which any person under a statute has been clothed or set at naught the working of the Act
by becoming an hindrance in the interpretation of the same.

Limitation of Explanation as Internal Aid

 Explanation cannot have the effect of modifying the language of the section
 Explanation cannot control the plain meaning of words of the section

Definition or Interpretation Clauses

They are generally included in a statute with the purpose of extending the natural meaning of
some words as per the definition given or to interpret such words, the meanings of which are not
clear, by assigning them the meaning given in the definition clause. Generally the meaning given
to a particular word in the interpretation clause will be given to that word wherever it is used in
the statute. The only exception to this rule is that if the court feels that in the context of a
particular provision the definition clause, if applied will result in an absurdity, the court will not
apply the definition clause while interpreting that provision. Similarly, the definition clause of
one Act cannot be used to explain the same word used in another statute. However, if both the
statutes are in pari materia and the word has been defined in one Act, the same meaning may be
assigned to the word in the other Act also.

In M/s. Hamdard (Wakf) Laboratories v. Deputy Labour Commissioner, the Supreme Court
observed that when an interpretation clause uses the word ‘includes’, it is prima facie extensive.
When it uses the words ‘means and includes’, it will afford an exhaustive explanation to the
meaning which for the purposes of the Act must invariably be attached to the word or
expression.  In Ramanlal Bhailal Patel v. State of Gujarat, the Supreme Court observed that
the use of the word ‘includes’ indicates an intention to enlarge the meaning of the word used in
the statute. The use of the word denotes in the interpretation clause shows that the expressions
denoted therein are covered within the ambit of that particular word. The expression deemed to
be in the interpretation clause creates a fiction. The use of the phrase that is to say in the
definition clause is illustrative of the meaning and not restrictive.

The Supreme Court in Jagir Singh v. State of Bihar 

 Was seized of the question of interpreting the word ‘owner’ in the Bihar Taxation on
Passengers and Goods (Carried by Public Service Motor Vehicles) Act, 1961 which
defined it as the owner and includes bailee of a public carrier vehicle or any manager
acting on the owners behalf. 
 The Court held that the use of the word includes gives a wider concept to the word
and so it means the actual owner as well as the others included in the definition. 

In Commissioner of Income-Tax, Madras, v. G.R. Karthikeyan 

 The question was whether prize money received by a participant in a motor rally was
‘income’ within the premise of Section 2 (24) of the Income-tax Act, 1961. 
  The Supreme Court held that several clauses in Section 2 (24) were not exhaustive in
nature and, therefore, money received under any new head not covered under the
provision is income and so subject to income-tax under the law. 

In Delhi Judicial Service Association v. State of Gujarat 

 The words “including the power to punish for contempt of itself” occurring in Article
129 of the Constitution of India were construed by the Supreme Court. 
 This Article declares the Supreme Court to be a Court of Record. 
 It was held that these words do not limit the inherent power of the Supreme Court to
punish for contempt of itself as also of subordinate courts. 

Proviso

In some sections of a statute, after the main provision is spelled out, a clause is added, with the
opening words “provided that…” The part of the section commencing with the words “Provided
that…” is called Proviso. A proviso is a clause which is added to the statute to accept something
from enacting clause or to limit its applicability. As such, the function of a proviso is to qualify
something or to exclude, something from what is provided in the enactment which, but for
proviso, would be within the purview of enactment.

The general rule about the interpretation of a proviso is that proviso is not to be taken absolutely
in its strict literal sense but is of necessity limited to the ambition of the section which it
qualifies. The court is not entitled to add words to a proviso with a view to enlarge its scope. The
proviso must reasonably be conveyed by the words used therein. Where the proviso is directly
repugnant to a section, the proviso shall stand and be held a repeal of the section as the proviso
speaks the latter intention of the makers. The real nature and function of a proviso has been
effectively laid down in following case laws:

In Union of India v. Sanjay Kumar Jain, the function of proviso was declared that it qualifies
or carves out an exception to the main provision. In Vishesh Kumar v. Shanti Prasad, the
Supreme Court held that a proviso cannot be permitted by construction to defeat the basic intent
expressed in the substantive provision.
In Union of India v. Dileep Kumar Singh, it has been held that though a proviso does not travel
beyond the provision to which it is appended, golden rule is to read the whole Section, inclusive
of the proviso in such manner that they mutually throw light on each other and result in a
harmonious construction. It has been held in R. v. Leeds Prison (Governor) that the main part
of an enactment cannot be so interpreted as to render its proviso unnecessary and ineffective.

In Shimbhu v. State of Haryana, the Apex Court held that a proviso should be construed in
relation to the main provision. But, in Sree Balaji Nagar Residential Assn. V. State of Tamil
Nadu, the apex court clarified that where the main provision is clear and unambiguous, recourse
to the proviso cannot be taken to interpret it. In State of Punjab v. Kailash Nath, the Supreme
Court held that the proviso has to read as an exception to the main provision of a section.

Sometimes more than one provisos are attached with the section. If there is any repugnancy
between the two provisos, the latter shall prevail. A proviso may serve four different purposes:

 Qualifying or excepting certain provisions from the main enactment;

 It may entirely change the very concept of the intendment of the enactment by insisting
on certain mandatory conditions to be fulfilled in order to make the enactment workable;
 It may be so embedded in the Act itself as to become an integral part of the enactment
and thus acquire the tenor & colour of the substantive enactment itself; and
 It may be used merely to act as an option addendum to the enactment with the sole object
of explaining the real intentions of the statutory provision.

Limitation of Proviso as Internal Aid

 Proviso is constructed in relation to the section to which it is appended

 The ambition and scope of enacting sections cannot be widened or curtailed by the
proviso.

Non-Obstante Clause

It is generally appended to a section with a view to give the enacting part of the section, in case
of a conflict, an overriding effect over the provision in the same or other Act mentioned in the
non-obstante clause. It is equivalent to saying that in spite of the provisions or the Act mentioned
in the non-obstante clause, the provision following it will have full operation or the provisions
embraced in the non-obstante clause will not be an impediment for the operation of the
enactment or the provision in which the non-obstante clause occurs.

“Notwithstanding anything contained in the Act where any person transports any goods or
stores any goods while they are in transit in contravention of the provisions of this Act or the
rules made thereunder, all such goods & conveyances used as a means of transport for carrying
the said goods and documents relating to such goods and conveyances shall be liable to detention
or seizure and after detention or seizure, shall be released.”
It has a non-obstante clause. It overrides the entire CGST Act.

When there is a non-obstante clause in more than one provision

When two or more laws or provisions operate in the same field and each contains a non-
obstante clause stating that its provision will override those of any other provisions or law,
stimulating and intricate problems of interpretation arise. In resolving such problems of
interpretation, no settled principles can be applied except to refer to the object and purpose of
each of the two provisions, containing a non-obstante clause. Two provisions in the same Act
each containing a non-obstante clause requires a harmonious interpretation of the two
seemingly conflicting provisions in the same Act. In this difficult exercise, there are involved
proper consideration of giving effect to the object and purpose of two provisions and the
language employed in each. Case: Shri Swaran Singh & Anr. v Shri Kasturi Lal, 1977.
MODULE V: External Aids to Interpretation
Dictionaries

Dictionary use/ references are of great importance and immense value in interpretation of a
statute. Where a word or an expression used in a statute cannot be understood in common
parlance, the courts, while interpreting the statute may resort to dictionaries for its meaning in
common parlance. Therefore, the dictionaries are referred/consulted by the courts, whenever
need arises to find out the ordinary sense of words. However, the courts must be very careful
while referring the dictionaries because the dictionary meaning of the word may not be true at all
times in a particular sense. If a word or expression in an Act has been defined, there is no need to
refer the dictionary to find out its general meaning. One of the main objects of every dictionary
of the English language is to give an adequate and comprehensive definition of every word
contained in it. Dictionaries are referred to, not only for meaning of the word, but also to find out
the general use of it.

Textbooks

Sometimes, courts, while interpreting a statute refer textbooks authored by distinguished jurists
and eminent scholars, so as to arrive at a true meaning of an enactment. However it is necessary
that the meaning of the words given in textbooks should correspond to the views/opinions of the
Courts. In certain cases, Vedas are quoted with approval by the courts. For example – Manu
Smriti, Agna Valkya Smriti etc.

Case: Kesavananda Bharati v State of Kerala, 1973 – In this case, the Supreme Court referred
to a large number of textbooks. The majority opinion was that, in view of many opinions and
counter opinions expressed by authors and jurists in the textbooks, it was not desirable to follow
the opinions quoted in the textbooks.

Travaux Preparatiores

The literal meaning of this French Term is preparatory works. It constitutes the materials used in
preparing the ultimate form of an agreement or a statute, especially of an international treaty.
The materials constitute a legislative history. It contains various documents including reports of
discussions, hearings and floor debates that were produced during the drafting of a Convention,
treaty or an agreement. Travaux Preparatiores of a statute or treaty are usually recorded so that it
can be used later in order to interpret that particular statute or treaty. This is a secondary form of
interpretation and is used to clarify the intent of the makers of the statute or treaty.

In Sigurjonsson v Iceland case, the Court noted that the use of the travaux preparatiores in the
earlier Young James and Wester case was not decisive but merely providing a working
hypothesis. The preparatory work was legitimately invoked by the Commission to show that the
provision that “Every shall be free to leave any country, including his own”, does not entitle a
convicted prisoner to leave the country in which he is lawfully detained. The most well-known
travaux are associated with the drafting of the Genocide Convention.

Statutes in Pari Materia

The doctrine of Pari Materia is a useful tool for the interpretation of statutes that work towards
the same objective. It is an ordinary rule of interpretation of statutes that the words of a statute
when there is uncertainty about their meaning are to be perceived in the sense in which they
harmonize with the subject of the enactment and the object which the legislature has in see. The
doctrine helps in harmonizing aim & subject of the legislation. It is a doctrine in statutory
interpretation that are in pari materia must be construed together.

Statutes are considered to be in pari materia to pertain to the same subject-matter when they
relate to the same individual or things, or to the same class of people or thing, or have the same
reason or object. The doctrine of ‘pari materia’ provides that reference to different statutes
dealing with the same subject or shaping part of the same system is a permissible aid to the
construction of provisions in a statute. Where there are various statutes in pari materia, however,
made at various occasions, or even lapsed and not alluding to each other, they shall be taken and
construed together, as one system and as explanatory to each other. It is to be gathered, that a
code of statutes relating to one subject was administered by one spirit and policy and, planned to
be consistent and harmonious in its several parts and provisions. It is along these lines an
established rule of law, that all Acts in pari materia are to be taken together as in the event that
they were one Law, and they are directed to be compared in the construction of statutes because
they are considered as framed upon one system, and having one object in seeing. The rationale
behind this rule is based on the interpretative assumption that words utilized in legislations are
utilized in an identical sense. Nonetheless, this assumption is rebuttable by the context of the
statutes.

There are certain considerations discussed in Bennion on Statutory Interpretation for naming acts
to be pari materia and the same has been alluded to by the Delhi High Court in Raees-Uz-Zama
and Anr. v. State NCT of Delhi.

In the matter of J.K. Steel Ltd. vs. Union of India and Ors., the Hon’ble Supreme Court, while
considering pari materia provisions of Central Excises and Salt Act held that Acts being in pari
materia must be taken together as framing one code and as interpreting and enforcing each other.
Alluding to its earlier judgment in the matter of C.A. Abraham vs. I.T.O., Kottayam, it was seen
that “In interpreting a fiscal statute the Court cannot proceed to make great deficiencies if there
may be any; the Court must interpret the statute as it stands and in case of uncertainty in a
manner favorable to the taxpayer.”

Contemporanea Exposito
The word ‘Contemporanea’ means ‘of the same time or the same period’ and the word
‘Exposito’ means explanation. Hence the expression means interpreting a statute or any other
document by referring to the exposition it has received from contemporary authority. The rule of
Contemporanea Exposito was coined for the first time by Lord. Coke.
In R.S. Nayak v A.R. Antuley, 1984, the Supreme Court construed Section 21 of IPC, 1860, by
referring to the principle of Contemporanea Exposito and it was held that a member of legislative
assembly is not a public servant as defined in the section.
The rule of construction by reference to Contemporanea Exposito is a well-established rule for
interpreting a statute by reference to the exposition it has received from contemporary authority,
though it must give away where the language of the statute is plain and unambiguous.
Doctrine of Contemporanea Exposito is based upon the precept that the words used in a statutory
provision must be understood in the same way in which they are usually understood in ordinary
common parlance by the people in the area and business. The Doctrine of Contemporanea
Exposito has to be applied with caution and the rule must give away when the language of the
statute is plain and unambiguous.
Foreign decision/ Judgments and Foreign Statutes
Most of the Indian legislations are modeled on the previous English statutes. Similarly, the
principles laid down in many decisions of the common law courts in England have been
approved and followed in Indian Courts. Therefore, the Indian Legal System is the replica of
English jurisprudence. Before independence i.e. before the establishment of the apex court in
India, appeals from the Indian High Courts were heard by the Privy Council & were followed
and applied in Indian Courts, even after the independence till date. It has to be noted that a
number of statutes in India, substantial & procedural namely the Indian Penal Code, 1860, the
Indian Evidence Act, 1872 etc. were drafted by the British Parliament, which are applied in
Indian Courts.

Government Circulars, Publications (Reports of Commissions and Committees)

Government circulars, Publications and Reports have been considered as external aids in
construction of statutes. Hence, the courts, at the time of interpretation, refer them unless they do
not go against the spirit of the statute under which they are issued.
In Express Newspapers Pvt Ltd v Union of India, 1958 – The Supreme Court referred the
Press Commission’s Report.
Module VI – Principles of Constitutional
Interpretation
Doctrine of Pith and Substance

The meaning of the term Pith is “true nature” or “the essence of something” and Substance is “a
most important part of something”. The court applies this doctrine when the matters of any list
encroach the boundary of other lists. It identifies the true nature of the matter and its basis and
gives judgement whether the said legislation will fall under this list or not.
This doctrine is, therefore, used to determine the legislative competency with regard to a
particular enactment by looking into the “substance” of that enactment.

Salient Features

Situations in which the doctrine is applied– It is applied in the circumstances where subject
matter of list seems to be conflicting with the subject matter of list two.

Reason behind adopting the doctrine– The powers of the legislature would be sternly limited if
every law is declared invalid on the ground that it encroaches upon another law.

True nature and character– The doctrine is known to examine the true nature and character of the
subject in order to ascertain as to in which list it fits.
Provision for a degree of flexibility– It takes under consideration the fact as to whether the state
has the power to make a law which involves a subject mentioned in the Union list of the
constitution.

First judgment which upheld the doctrine– It was in the case of State of Bombay v. F. N
Balsara that the doctrine was first applied in the case and the same was upheld.
STATE OF BOMBAY AND ANOTHER V. F.N BALSARA-
Facts- The sale and possession of liquor was restricted in the state of Maharashtra by way of
the then existing Bombay Prohibition Act and this Act was challenged on the matter that
there was an incidental encroachment on the act of importing and exporting of liquor through
 the borders. This matter was taken up by the High Court of Bombay and the following was
held.

Significance of the Doctrine in the judgment– The court gave out the judgment stating that
the act was in its Pith and Substance and rightfully fell under the State list even though such
an act was said to have a bearing on the import of liquor in the state.

STATE OF RAJASTHAN V. G CHAWLA-

This case was regarding the sound amplifiers and the confusion as to whether the state or the
central government has the right to legislate on the matters concerning public interest.

Facts-According to an existing law in the state of Rajasthan, restrictions were placed on the
usage of sound amplifiers in the state. The primary question involved here was the power to
legislate on matters of Public health. The state government argued that entry 6 of the list II gives
power to the state government to regulate the use of amplifier as it produces loud noise. On the
other hand, the opposition put forth the point that entry 31 of list I, which speaks about various
means of communication like that of telegraphs, telephones, wireless broadcasting, etc., gives the
union government the right to make laws regarding the use of the amplifiers.
Finally, in its judgment the court held that amplifiers do not come under entry 31 of list I. The
court justified its point by stating- ‘though amplifier is an apparatus of broadcasting and
communication, the legislation in its pith and substance would lie with the state government and
not the central government’.

Interpretation of the Doctrine of Pith and Substance

Recognized by various High courts and Supreme Court in India, this doctrine is an established
principle of law. Whenever a law is seen to be encroaching or trespassing upon a field, the
legislation of which has been assigned to another, the Doctrine of pith and Substance comes into
play. The crux of the doctrine is that whenever a question arises regarding the determination of
whether a particular law relates to a particular subject (which will be mentioned in one of the
lists) the court while dealing with such issues looks into the substance of such matter.
Hence, from the above mentioned points it can be stated that Doctrine of pith and Substance
states- “Whenever a question arises as to determination of whether a particular law relates to a
particular subject (which might be mentioned either in one list or another) the courts mainly
looks at the substance of the matter. Thus, for instance, if the substance falls in the union list then
the incidental encroachment by the law on the State list does not make it invalid”.

One of the most historic cases on the doctrine of pith and substance is the case of Prafulla
Kumar Mukherjee v. Bank of Khulna Ltd. The validity of the Bengal Money Lenders Act,
1946 was challenged which limited the amount and the rate of interest recoverable by a
moneylender on any loan. It was argued that promissory notes were a Central subject and not a
state subject. It was held by the Privy Council that the act was in pith and substance law in
respect of ‘money lending and money lenders’ was a state subject and was valid even if it
incidentally trenched upon ‘Promissory note’ i.e. a central subject.
In the case of Atiabari tea co. ltd. v. State of Assam, the court opined that in cases where there
is the encroachment of powers to legislate, the doctrine can be applied, else the doctrine is of no
use.

Doctrine of Colourable Legislation

Black’s Law Dictionary defines ‘Colorable’ as:

1. Appearing to be true, valid or right.

2. Intended to deceive; counterfeit.
3. ‘Color’ has been defined to mean ‘Appearance, guise or semblance’

The literal meaning of Colorable Legislation is that under the ‘color’ or ‘guise’ of power
conferred for one particular purpose, the legislature cannot seek to achieve some other purpose
which it is otherwise not competent to legislate on.

This Doctrine also traces its origin to a Latin Maxim:

“Quando aliquid prohibetur ex directo, prohibetur et per obliquum” - This maxim implies
that “when anything is prohibited directly, it is also prohibited indirectly”. In common parlance,
it is meant to be understood as “Whatever legislature can’t do directly, it can’t do indirectly”.

Rule of Interpretation
The rule of interpretation relates to the question of legislative competency to enact a law.
Doctrine of Colorable Legislation like any other constitutional law doctrine is a tool devised and
applied by the Supreme Court of India to interpret various Constitutional Provisions. It is a
guiding principle of immense utility while construing provisions relating to legislative
competence. The doctrine becomes applicable when a legislature seeks to do something in an
indirect manner when it cannot do it directly. It refers to the competency of the legislature to
enact a particular law.

Legislation may be regarded as colourable when a legislature having no power to legislate

frames the same as to make it appear to fall within its competence. The essence lies in fact that
the legislature cannot overstep the field of its competency indirectly. Such an instance is clear
fraud on constitution. In India ‘the doctrine of colorable legislation’ signifies only a limitation of
the law making power of the legislature. The Supreme Court has explained the meaning and
scope of doctrine of colourable legislation in the case of K.C. Gajapati Narayan Deo v. State
Of Orissa, [1954] S. C. R. 1, as follows:

“ If the constitution of a State distributes the legislative powers amongst different bodies, which
have to act within their respective spheres marked out by the constitution in specific legislative
entries, or if there are limitations on the legislative authority in the shape of Fundamental rights,
the question arises as to whether the Legislature in a particular case has or has not, in respect to
subject-matter of the statute or in the method of enacting it, transgressed the limits of its
constitutional powers. Such transgressions may be patent, or direct, but it may also be disguised,
covert or indirect, or and it is to this latter class of cases that the expression colourable legislation
has been applied in judicial pronouncements.”

In India parliamentary and state legislatures, legislative powers are delegated by Article 246 and
allocated in the Seventh Schedule of the Indian Constitution by lists I, II, and III. Parliament has
the power to legislate on any of the List II matters, and Parliament and the State Legislatures
both have the power to make laws on any of the List III matters, and the residual power of
regulation is vested on Parliament by way of Article 248 and Article 97, List I. It is a matter of
how legislative power must be exercised between the Center and the States, or it relies only on
the relationships between them, to create some legislation or the legitimacy of that rule. The
main point is that the government with punitive authority cannot invade the field of competency.
It's called the "constitution scam."

Limitations on the Application of Doctrine of Colourable Legislation

1. If the constitution has adopted the doctrine of separation, it might mean the legislature
should not exercise judicial functions. It means that under the guise of doing legislative
functions, a covert attempt to exercise judicial functions or to overcome those limitations
may attract the Doctrine of Colourable legislation.
2. Most of the constitution contains a bill of rights and the power legislature might be
limited in many ways regarding any law in contravention to the bill of rights. Any
concealed attempts of the judiciary to overcome those limitations might attract the
doctrine of colourable legislation.
3. In a federal constitution there might be demarcation of legislative power of the Union and
the states as the sovereignty of the state is shared by them. Any concealed attempts of
central or state legislatures to legislate out of its powers may attract the doctrine of
colourable legislation.
4. The attempts of the legislature to exceed the limits under the colour of ancillary power
may also attract the principle of colourable legislation in addition to the above mentioned
conditions.
5. The very well established rule of interpretation ‘construction ut res magis valeat quam
pereat’ which says any enacting provision or statute should be interpreted in a way which
make the statute effective or operative explains why courts are tilted against a
construction which makes the statute futile. Courts would tend to look for a construction
which keeps the statute within the competence of the legislature.
6. For the doctrine of colourable legislation to be applicable, the transgression of the
constitutional power should be covert, disguised and indirect too, not just patent, direct or
manifest.

MOHAN LAL TRIPATHI Vs. DISTRICT MAGISTRATE, RAE BAREILLY AND ORS.,
1993 AIR 2042 – A Legislature does not act on extraneous consideration. Ordinance issued in
1990 was replaced by Act 19 of 1990. The Act came into force on 24th July 1990 but it was
made retrospective with effect from 15th February 1990, the date when the ordinance was issued.
But for lack of legislative competence or for being arbitrary a legislative action cannot be struck
down on ground of malafides.

STATE OF BIHAR Vs. KAMESHWAR SINGH, AIR 1952 SC 252 – This is the only case
where a law has been declared invalid on the ground of colourable legislation. In this case the
Bihar Land Reforms Act, 1950, was held void on the ground that though apparently it purported
to lay down principle for determining compensation yet in reality it did not lay down any such
principle and thus indirectly sought to deprive the petitioner of any compensation.

The zamindari abolition act was challenged by the zamindars post-independence drawing
inspiration from the constituent assembly debates. Even though the court did not consider their
prayers, two provisions of Bihar Land Reform Act was struck down by the court in the name of
Colourable legislation.

Balaji v. State of Mysore, AIR 1963 SC 649 – SC held that the order reserving 68% of the seats
for students belonging to backward classes was violative of Article 14 in disguise of making a
provision under Article 15(4).

Ram.Prasad v. State of Bihar, A.I.R. 1952 Pat. 194 – The Bihar Sathi Land restoration Act
was held invalid as it was out legislative competence of the legislature. The Act which was
passed on the basis of the congress working committee cancelled the settlement made in favour
of a person of the lands involved under administration of Court of wards. One of the judges in
the high court opined that the act was more of the nature of a decree than legislation. Finally the
SC too invalidated the as it was not within the legislative competence of the legislature.

Doctrine of Eclipse

The Doctrine of Eclipse is a principle that advocates the concept of fundamental rights being
prospective. If any law made by the Legislature is inconsistent with Part III of the Constitution,
then that law is invalid and inoperative to the extent of it being overshadowed by the
Fundamental Rights. The laws are hidden by the relevant fundamental rights, and the Eclipse is
said to be cast on it.
The inconsistency of the eclipsed law can be removed only when the corresponding fundamental
right is amended. The shadowing is then removed, and the law becomes automatically valid and
operative again.

Eclipse occurs when one object overshadows the other, so as the name suggests that Doctrine of
Eclipse is applied when any law or act violates the fundamental rights then the fundamental
rights overshadows the other law or act and make it unenforceable but not void ab initio. They
can be enforced again if the restrictions posed by the fundamental rights are removed.

RULE OF INTERPRETATION

The concept has its origins in the theory of limited Government and the theory of two laws - the
ordinary and the Supreme (i.e., the Constitution) - which entails that any act of the ordinary law-
making bodies that contravenes the provisions of the Supreme Law must be void, and there must
be some organ possessing the power or authority to pronounce such legislative acts void.

The historic case of Marbury v. Madison , 2 US L. Ed. 60 (1803), which established this
doctrine in the United States. Constitutional supremacy is an accepted canon of Constitutional
law, and is enshrined in Constitutions the world over. For instance, Article 98 of the Japanese
Constitution provides: This Constitution shall be the Supreme Law of the State, and no public
law or ordinance or Imperial transcript or other act of Government, or part thereof, contrary to
the provisions hereof, shall have legal force or validity. With the adoption of a written
Constitution and the incorporation of Part III conferring Fundamental Rights therein, it was
inevitable that the validity of all laws in India would be tested on the touchstone of the
Constitution.

The Doctrine applies to and can be invoked only in the case of Article 13(1) dealing with pre-
constitutional laws, which states, “all laws in force in the territory of India immediately before
the commencement of this Constitution in so far as they are inconsistent with the provisions of
this Part, i.e. Part III, shall, to the extent of such inconsistency, be void.”

Salient Features of this Doctrine

Applicability to Pre Constitutional Laws

For the Doctrine to apply, the law must be valid at its inception and thus, can be invoked only in
the cases of pre-constitutional laws that have become operational with the adoption of the Indian
Constitution on 26th January 1950.

Non Applicability to Post Constitutional Laws – They cannot apply to post-constitutional laws
because they are invalid at their inception and thus, cannot be validated by any subsequent
amendment. But there are certain exceptions to the same; non-citizens cannot take advantage of
the voidness, as the violation does not affect them.

In Deep Chand v. State of Uttar Pradesh, A.I.R. 1959 S.C. 648 the Supreme Court very
meticulously observed that the Doctrine applies only to pre-constitutional laws as given under
Article 13(1). It does not apply to any post-constitutional law as under Article 13(2) because the
post-constitutional laws in violation of fundamental rights are void ab initio and stillborn.

The judgment of Bhikaji and Deep Chand was upheld in the case of State of Gujarat v. Ambica
Mills, Mahendra Lal Jain v. State of Uttar Pradesh, P. L. Mehra v. D. R. Khanna and Sagir
Ahmed v. State of Uttar Pradesh.

Doctrine of Eclipse and Section 309 of IPC

The Doctrine is seen to extend to the provisions under the Indian Penal Code, as observed in the
cases of Rathinam and Gian Kaur. In the case of Rathinam v. Union of India, Section 309 of
IPC that criminalizes attempt to suicide was challenged. The Court drew a parallel between
Article 19 and Article 21 and observed that Article 21 holds right to live, so it also induces right
not to live and holds Section 309 to be unconstitutional, and therefore it was eclipsed. After two
years, a five-judge constitutional bench in the case of Gian Kaur v. State of Punjab reversed
the Judgment of Rathinam case and upheld the validity of Section 309. Thus, the Eclipse on
Section 309 was removed and became operational again.

In conclusion, the Doctrine of Eclipse is one such theory that is said to safeguard the pre-
constitutional laws from being completely wiped out. It gives us a very refined, nuanced aspect
of the rule of law. Theorists believe that if there were no Doctrine of Eclipse, then
constitutionalism would’ve been compromised. This theory has helped break the thin line
between pre-constitutional laws and the post-constitutional laws. It is a tool to harmonize the
central dictates of the Indian Constitution.

Doctrine of Repugnancy

The constitution of India having 395 Articles, 12 Schedules and 8 parts, is known as Lengthiest
written Constitution in the world. It took a long duration of 2 years 11 months and 18 days to be
formed. Federalism is known as one of the essentials of Basic Structure. Indian Constitution is
known as federal Constitution because there is a division of power between Center and States but
many jurists were of the opinion that it is amalgamation of Unitary and Federal Structure. Due to
this federal structure, many a time’s conflict or collision takes place.

To avoid the conflict, Article 254 of the Indian Constitution provides the mechanism for
resolution of conflict between the Centre and the State Legislation enacted to with respect to any
matter enumerated in List III of Seventh Schedule.

Meaning – Inconsistency or contradiction between two or more parts of a legal instrument (such
as a statute or a contract)

Repugnancy means the conflict between two pieces of legislation which when applied to the
same facts produce different results. Repugnancy arises when the provisions of two laws are so
inconsistent and irreconcilable that it is impossible to do one without disobeying the other. In the
Indian context, if such a conflict arises between a central and a state legislation, then the central
law will prevail. This has been stated in Article 254 of the Indian Constitution and has also been
further clarified by the Supreme Court in various cases

Doctrine of repugnancy refers as where the law is enacted by the legislation which is in conflict
with a law made by the state in the concurrent list the parliamentary legislation would prevail
over the state legislature. Doctrine of repugnancy occurs when both the statues have made law in
the concurrent list. The aim of the concurrent list was to confirm uniformity across the country
where both centre and state can legislate.
Justice Fazal Ali reviewed the decision passed by the courts on the doctrine of repugnancy and
held in the case of M Karunanidhi v. Union of India, AIR 1979 SC 898 that the doctrine of
repugnancy can be used when:

1. There must be a clear and direct inconsistency between the two enactments
2. There can be no repeal unless inconsistency appears on the face of the two statutes
3. Two statutes occupy same field without coming in collision, there can be no repugnancy
results
4. There is no inconsistency between the statutes in the same field, both statutes continue to
operate.

Salient Features

If any law passed by the legislature of the state enumerated in the concurrent list which is
repugnant to the earlier law made by the parliament or an existing law the law passed by the state
legislature would remain in existence in that state if the assent is given by the president. After
receiving the presidential assent the law can still be held void if the parliament amend, verify and
repeal any law in respect to the same matter.

The state legislature and the parliament have equal competence to legislate in the concurrent list.
It is the duty of the court to interpret the enactments and avoid conflicts. No repugnancy of law
passed by the state legislate would be required if the matter is different. Then Article 254(2)
would have no application. Under article 254 of the Indian constitution when a law passed by the
legislature of the state which is inconsistent with the law parliament the whole law won’t be held
void it will be held void to the extent of repugnancy.

To ascertain repugnancy it is necessary to check law made by the parliament is an exhaustive

code if it is not then the state law won’t be held void. In order to strike down a law passed by the
state legislature in the court it is necessary to prove both laws are made on the same matter and
both are inconsistent with each other. The state law which becomes void after repugnancy till the
time the union law is not repealed once it is repealed it becomes operative.

Deep Chand vs. Sate of UP, AIR 1959 SC 648

Facts: The state government introduced UP transport service Act and was added in the
concurrent list. There were certain provision which were in the UP transport service Act which
was not in the motor vehicles Act. So the parliament amended the Motor Vehicles Act to create a
uniform law. Judgement: The court held that both the law were in a direct conflict and occupied
the same field. Therefore it is void to the extent of repugnancy.

Zaveribhai vs. State of Bombay, AIR 1954 SC 752

Facts: The parliament enacted essential supple Act 1946 regarding production and distribution of
essential commodities. If the rules listed are not followed the person would be imprisoned for 3
years. The state passed an Act with the assent of the president the Act increased the punishment
up to 7 years. The parliament amended the Act and enhanced the punishment. Judgement: The
court held that both the legislations made law in a same fields conflicting each other . Therefore
law passed by the state is void to the extent of repugnancy.

In the case of Govt. of A.P. v. J.B. Educational Society, the court held that:

1. There is no doubt that both Parliament and the State Legislature are supreme in their
respective assigned fields. It is the duty of the court to interpret the legislations made by
Parliament and the State Legislature in such a manner as to avoid any conflict. However,
if the conflict is unavoidable, and the two enactments are irreconcilable, then by the force
of the non obstante clause in clause (1) of Article 246, the parliamentary legislation
would prevail notwithstanding the exclusive power of the State Legislature to make a law
with respect to a matter enumerated in the State List.
2. With respect to matters enumerated in List III (Concurrent List), both Parliament and the
State Legislature have equal competence to legislate. Here again, the courts are charged
with the duty of interpreting the enactments of Parliament and the State Legislature in
such manner as to avoid a conflict. If the conflict becomes unavoidable, then Article 245
indicates the manner of resolution of such a conflict.”

The Court also said that:

 1. Where the legislations, though enacted with respect to matters in their allotted sphere,
overlap and conflict. Second, where the two legislations are with respect to matters in the
Concurrent List and there is a conflict. In both the situations, parliamentary legislation
will predominate, in the first, by virtue of the non obstante clause in Article 246(1), in the
second, by reason of Article 254(1).
2. Clause (2) of Article 254 deals with a situation where the State legislation having been
reserved and having obtained President's assent, prevails in that State; this again is
subject to the proviso that Parliament can again bring a legislation to override even such
State legislation.
3. In Hoechst pharmaceuticals vs State of Bihar, 1983 case, parliament enacted the
Essential commodities Act,1955 under entry 33 list III. The law was on the subject of
price fixation of essential commodities. Under this act, the Central government passed an
order that the manufacturer or the producers of goods can pass on sales and excise duty to
the consumers. But on the other hand, section 5 of the Bihar Finance Act, 1981 prohibited
dealers to recover sales tax from the consumers. The finance act was challenged on the
ground that under the Central law the manufacturer and the producer are allowed to
recover the sales tax from consumers. The court observed that the two acts operate on
separate and distinct fields and both are capable of being obeyed. There was no question
of any clash between the two and the question of repugnancy does not come into play.

Explaining the effect of Article 254(2), the Supreme Court said in the case of Hoechst Pharm
Ltd. v. State of Bihar, that the result of obtaining the assent of the president in respect to a state
act which was inconsistent with a previous union law relating to a concurrent subject would be
that, the state law would prevail in that state and it would override the provisions of the Central
act in that state only.

In Security Association of India v. Union of India, AIR 2014 SC 3812

Court was of the opinion that Article 254 is only applicable when the State law is in ‘Pith and
Substance’ a law relating to an entry in the concurrent list on which the parliament has legislated.

Doctrine of Territorial Nexus

Doctrine of territorial nexus says that laws made by a state legislature are not applicable outside
the state, except when there is a sufficient nexus between the state and the object. The Doctrine
of Territorial nexus can be invoked under the following circumstances – Whether a particular
state has extra-territorial operation. If there is a territorial nexus between the subject- matter of
the Act and the state making the law. It signifies that the object to which the law applies need not
be physically located within the territorial boundaries of the state, but must have a sufficient
territorial connection with the state.

MEANING

Clause 1 of article 245 says- Subject to the provisions of this Constitution, Parliament may
make laws for the whole or any part of the territory of India and the Legislature of a State may
make laws for the whole or any part of the State. However, second clause says that a law made
by parliament cannot be held invalid on ground that it has an extra-territorial operation.

This implies that state law cannot have extra-territorial operation. The Doctrine of territorial
nexus emanates from the Supreme Court interpretation of this provision in context with extra-
territorial operation of a law made by state government in India.

Territorial nexus is a concept described in Article 245 of the Constitution of India that
determines how legislative powers are divided. "Article 245 provides, inter alia, that (subject to
the provisions of the Constitution).

i. Parliament may make laws for the whole or any part of the territory of India, and
ii. The legislature of a State may make laws for the whole or any part of the State.

Thus, article 245 sets out the limits of the legislative powers of the Union and the States from the
geographical (or territorial) angle.

Article 245 (2) of the Constitution of India makes it amply clear that “No law made by
Parliament shall be deemed to be invalid on the ground that it would have extra-territorial
operation” (“Extra- territorial operation” – Law made to operate outside territorial limits of
India.) Thus, legislation cannot be questioned on the ground that it has extra-territorial operation.
See, it is well-established that the Courts of our country must enforce the law with the machinery
available to them; and they are not entitled to question the authority of the Legislature in making
a law which is extra-territorial. Extra-territorial operation does not invalidate a law. But some
nexus with India may still be necessary in some of the cases such as those involving taxation
statutes.

TESTS OF TERRITORIAL NEXUS

The sufficiency of the nexus is to be seen based on the test laid down by our Supreme Court in
State of Bombay v. R.M.D.C., AIR 1957 S.C., 699, according to which two conditions should
be fulfilled:

i. The connection must be real and not illusory; and

ii. The liability sought to be imposed by that law must be pertinent to that connection.
iii. It is valid only if both the conditions are fulfilled by a law simultaneously otherwise not.

In the case of Sondur Gopal v.Sondur Rajini AIR 2013 S.C. 2678, the general principle was
laid that laws made by one State cannot have an operation in another State. A law that has extra-
territorial operation cannot directly be enforced in another State but such a law is not invalid and
saved by Article 245(2) of the constitution.

The determination of territorial nexus qua levy of income-tax came up for adjudication as early
as in 1943 before the Privy Council in the case of the The Patiala State Bank v. Commissioner
of Income-tax. The Patiala State Bank, which was the appellant in the instant case, was owned
and controlled by the Maharaja of Patiala. The appellant carried on banking business with the
head office and all of its branches situated in that State and no part of the business of the
appellant was carried on in British India. During the assessment year in question, the appellant
took over a property situated at Mussoorie (which was a part of British India) from its debtor
who was a subject of the Patiala State, in part satisfaction of a loan advanced to him. Further, the
appellant also collected and received in British India through the hands of its agents, sums
representing the interest on certain Government of India securities that it had acquired in the
course and for the purposes of its business. Both the income received by the appellant from its
investments in British India and income received from the Mussoorie property were held to be
income arising in connection with a trade or business carried on in British India and therefore
liable to be assessed to tax.

In Wallace v/s Income-tax Commissioner, Bombay, AIR 1948 SC 118 – A company which
was registered in England was a partner in the firm in India. The Indian Income-tax Authorities
sought to tax the entire income made by the company. The Privy Council applied the doctrine of
territorial nexus and held the levy of tax valid. it said that derivation from British India of major
part of its income for a year gave to company for that year sufficient territorial connection to
justify its being treated as at home in India for all purposes of tax on its income for that year
from whatever source income may be derived. The Doctrine of Territorial Nexus governs the
taxation of non-residents.

The Hon'ble SC in the case of Shrikant Bhalchandra Karulkar v. State of Gujarat, 1994
SCC (5) 459 dealt with the legislative competence to make laws having extra territorial
operation in view of the provisions of Article(s) 245 and 246 of the Constitution of India. It was
held that so long as the law made by State legislature is applicable to the persons residing within
its territory and to all things and acts within its territory, it cannot be considered extra-territorial.

State of Bihar vs Charusila Dasi, 1959 Supp 2 SCR 601

Facts – Bihar legislature enacted the Bihar Hindu Religious Trusts Act, 1950, for the protection
and preservation of properties appertaining to the Hindu religious trusts. The Act applied to all
trusts any part of which was situated in the state of Bihar. The Respondent created a trust deed of
her properties of several houses and land in Bihar and Calcutta. The trust is situated in Bihar.

Issue – The main question for decision was whether the Act can apply to trust properties which
are situated outside the state of Bihar. Can the legislature of Bihar make a law with respect to
such a trust situated in Bihar and other properties appertaining to such trust which is situated
outside Bihar?

Decision – Applying the doctrine of territorial nexus, the Supreme Court held that the Act could
affect the trust property situated outside Bihar, but appertaining to a trust situated in Bihar where
the trustees functioned. The Act aims to provide for the better administration of Hindu religious
trusts in the state of Bihar. The trust is situated in Bihar the state has legislative power over it and
also over its trustees or their servants and agents who must be in Bihar to administer the trust.
What is necessary is that the connection between the trust and the property appertaining thereto
is real and not illusory and that the religious institution and the property appertaining thereto
form one integrated whole as one cannot be dissociated from the other.