UNIT 1

GENERAL
INTRODUCTION ON IOS
 “A VERBIS LEGIS NON EST RECEDENDEM” – you must not vary the words of a
statute.
 A statute is the will of the legislature. The legislature will follow the procedure laid down
or prescribed in the enactment of laws.
 The word ‘ interpretation’ is derived from the latin term ‘ interpretari’’which means to
explain or expound or to understand or translate.
MEANING OF STATUES
 A statute has been defined as “the will of the legislature” (Maxwell, Interpretation of
Statutes,).
 Normally, it denotes the Act enacted by the legislature.
 A statute is thus a written “will” of the legislature expressed according to the form
necessary to constitute it as a law of the State, and rendered authentic by certain
prescribed forms and solemnities.
 According to Bouvier’s Law Dictionary, a statute is “a law established by the act of the
legislative power i.e. an Act of the legislature. The written will of the legislature. The
term ‘statute’ is generally applied to laws and regulations of every sort of law which
ordains, permits or prohibits anything which is designated as a statute, without
considering from what source it arises”.
 The Constitution of India does not use the term ‘statute’ but it employs the term “law” to
describe an exercise of legislative power.
CLASSIFICATION OF STATUTES
 A statute is the will of the legislature. Statutes include Acts passed by the Imperial or
Provincial Legislature in Pre-independence days as well as regulations.

 Statutes generally refer to the laws and regulations of every sort, every provision of law
which permits or prohibits anything.

 A statute may be classified with reference to its duration, nature of operation, object and
extent of application.

1. On the basis of duration

 Perpetual / Permanent statutes
 Temporary statutes
2. On the basis of nature of operation
 Prospective statutes
 Retrospective statutes
 Directory statutes
 Mandatory statutes

3. On the basis of objective

 Codifying statutes
 Consolidating statutes
 Declaratory statutes
 Remedial statutes
 Enabling statutes
 Disabling statutes
 Permissive statutes
 Prohibitory statutes
 Penal statutes
 Taxing statutes
 Explanatory statutes.
1. EXPLIAN THE GUIDELINES FOR INTERPRETING THE PROVISION OF A
STATUTES AS MANDATORY OR DIRECTECTORY.

INTRODUCTION
MEANING
CLASSFICATION
MANDATORY AND DIRECTORY PROVISIONS
 In legal terminology where something is required to be done and the consequences of
failure to do so are also provided then it is known as mandatory provision.
 There is no universal rule regarding the directory or mandatory provisions except this
that language alone most often is not decisive, and regard must be had to the context,
subject-matter and object of the statutory provision in question in determining whether
the same is directory or mandatory.
 It is the duty of the courts to get the real intention of the legislature by carefully attending
the whole scope of the provision to be construed. The key to the opening of every law is
the reason and spirit of the law, it is the ANIMUS IMPOTENTIA, the intention of the
law maker expressed in the law itself, taken as a whole

DISTINCTION
 In the case of mandatory enactment it is said that they must be stated or fulfilled exactly
but in the case of directory enactments only substantial compliance is sufficient.
 It is a general rule that non-compliance of mandatory requirements results in nullification
of the Act.
 But there is an exception that if certain requirements or conditions are provided by a
statute in the interest of a particular person, the requirements or conditions, although
mandatory, may be waived by him if no public interest is involved and in such a case the
act done will be valid even if the requirement or condition has not been performed

CONSEQUENCES PROVIDED BY STATUTE

When on failure to comply with a prescribed requirement nullification as a consequence is
provided by the statute itself, there is no doubt that such statutory requirement must be
interpreted as mandatory.
Use of Negative words
 When the command is clothed in a negative form, it suggests that there is clear intention
to consider the enacted provision as mandatory.
Affirmative words
 When imply a negative For reading the provision as mandatory, affirmative words stand
at a weaker footing than the negative words; but affirmative words may also be so
limiting as to imply a negative.

Use of ‘shall’ or ‘shall and may’; ‘must’ and ‘should’

 Normally the word ‘shall’ prima facie ought to be considered mandatory but it is the
function of the court to ascertain the real intention of the legislature by a careful
examination of the whole scope of the statute, the purpose it seeks to serve and the
consequences that would flow from the construction to be placed thereon. The distinction
reflected in the use of the word ‘shall’ or ‘may’ depends on conferment of power.

Statutes imposing public duty

 When a statute imposes a public duty and lays down the manner in which and the time
within which the duty shall be performed, injustice or inconvenience resulting from a
rigid adherence to the statutory prescriptions may be a relevant factor in holding such
prescriptions only directory.

Formalities prescribed for making contracts or transfers

 Provisions of the Constitution Acts and Municipal Acts providing the manner in which
contracts and transfers shall be executed have been held to be mandatory

Statutes conferring power; Express & Implied conditions; Judicial Review

 Those statutes which confer power often contain certain express conditions for the
exercise of the conferred power and in the absence of or in addition to the express
conditions, there are also implied conditions for exercise of the power. If the express or
implied conditions are mandatory, exercise of statutory power in breach of these
conditions will be illegal. Such an illegal exercise of power can be challenged by the
public law remedy of judicial review or by a private law remedy of civil suit.

Manner of expression of exercise of power

 The power to make an order must also be distinguished from the manner of expressing an
order which may have been prescribed with a view to give the prescribed manner of
expression an evidentiary value
Statute conferring private rights and benefits:
 When certain requirements are prescribed by a statute as preliminary to the acquisition of
a right or benefit conferred by the statute, such prescriptions are mandatory for
acquisition of the right or benefit.

Use of ‘may’; ‘it shall be lawful’; ‘shall have power’ – power coupled with duty:
 The words ‘may’ and ‘it shall be lawful’ are not words of compulsion. They are enabling
words and they only confer capacity, power or authority and imply discretion. They are
both used in a statute to indicate that something may be done which prior to it could not
be done.

Use of ‘as he deems fit’; ‘thinks necessary’; ‘considers necessary’ – words conveying
discretion
 Where a statute provides for the grounds on which a person is entitled to a certain relief
and confers power on a tribunal to pass orders ‘as it deems fit’, the exercise of the power
to grant relief is not dependent upon the discretion of the tribunal. The words ‘as he
deems fit’ do not bestow a power to make any order on consideration dehors the statute
which the authorities consider best according their notions of justice.

Use of ‘have regard to’ when in a statute

 The words ‘have regard to’ occur,they should be construed in relation to the context and
the subject matter. These words ordinarily are understood as a guide and not a fetter.
When a court is enjoined to ‘have regard to’ certain provisions in the trial of a
proceeding and no regard is paid to them, the trial will not ‘be in accordance with law’
and such an error will be liable to correction in appeal or revision

CASE LAWS
Secretary of State v Kuchwar Lime & Stone Co. Ltd.
 In it was observed that the requirement as to registration of certain documents prescribed
by S 17 of the Registration act, 1908, or by any provision of the Transfer of Property
Act, 1882, is mandatory since the consequence of nonregistration is provided by S 49 of
the Registration Act in that such documents if not registered do not affect the property
comprised therein.
Pix Bux v Moahamed Tahar
 In the provisions of S 54, 59, 107 and 123 of the Transfer or Property Act, 1882,
prescribing modes of transfer by sale, mortgage, lease or gift may be mentioned.
 The formalities prescribed by these provisions for effecting a transfer of the nature
mentioned in them are mandatory and the language used although affirmative clearly
imports a negative
2. EXPLAIN THE RULES/PRINCIPLES OF INTERPRETATION OF TAXING
STATUTES.

INTRODUCTION
 Statute signifies an act of the legislature.
 A law established by the act of the legislative power.
 It is a law or enactment of a legislative authority and set forth in a formal document.
 It is said that ‘statute’ (statutum) was first used on an act of 55 Henry III.
 This word is used to designate the written law in contradistinction to the unwritten law.
 As the social, economic and political conditions of the society keeps on changing,
interpretations of the laws also require change.
 Legislature is not equipped to meet such changing conditions and legislature cannot
anticipate every situation which might occurred in real life.
 Thus, it is Courts which play the role and interpret the laws to adapt as per needs of the
society.
 Therefore, interpretation is the process by which the Courts seek to ascertain the meaning
of the legislation through the medium of authoritative forms in which it is expressed

RULE OF STRICT INTERPRETATION

 Strict rule of interpretation is one of the principles used to interpret fiscal and penal
statutes. According to this rule, plain, clear and direct meaning is given to words which
are used in common parlance by the general public to which such law is applicable.

 There can be no presumption by court with respect to particular meaning.

 Court cannot give particular meaning to a word which is not clear by making a
presumption that particular meaning is the intention of the legislature.

CONSTRUCTION OF TAXING STATUTES AND EVASION OF STATUTES

I. Strict Construction of Taxing Statutes
a. Taxing Statutes
b. General Principle of Strict Construction
c. Qualificatin of rule of Strict Construction
II. Evasion of Statutes
STRICT CONSTRUCTION OF TAXING STATUTES
a) Taxing Statutes
 A tax is imposed for raising general revenue of the State for public purposes.
 In contrast to tax, a fee is imposed for rendering services and bears a broad co-
relationship with the services rendered.
 Taxes are distributed between the Union and States by various entries in List I and List II
of the Constitution.
 Parliament can under its residuary power in entry 97 of List I levy a tax not mentioned in
these lists.
 A taxing statute means a statute or an Act making compulsory imposition whether of tax
or fee.
 There are following three stages in the imposition of tax:
i. Declaration of liability in respect of persons or property;
ii. Assessment of tax that qualifies the sum which the person liable has to pay;
iii. . Methods of recovery if the person taxed does not voluntarily pay.

b) General Principle of Strict Construction

 A taxing statute is to be strictly construed.

 If the person sought to be taxed comes within the letter of the law, he must be taxed,
however great the hardship may appear to the judicial mind to be.

 On the other hand, if the Crown seeking to recover the tax, cannot bring the subject
within the letter of the law, the subject is free, however apparently within the spirit of
law the case might otherwise appear to be.

 If there be admissible in any statute, what is called an equitable construction, certainly,

such a construction is not admissible in a taxing statute where you can simply adhere
to the words of the statute. There is nothing like implied power to tax.

 The source of power which does not specifically speak of taxation cannot be
interpreted by expanding its width as to include therein the power to tax by
implication or by necessary inference.

 The judicial opinion of binding authority flowing from several pronouncements of the
Supreme Court has settled following principles :
 In interpreting a taxing statute, equitable considerations are entirely out of place.
Taxing statutes cannot be interpreted on any presumption or assumption. A taxing
statute has to be interpreted in the light of what is clearly expressed. It cannot
 import provisions in the statute so as to supply any deficiency. It cannot imply
anything which is not expressed.
 Before taxing any person it must be shown that he falls within the ambit of the
charging section by clear words used in the section, and
 If the words are ambiguous and open to two interpretations, the benefit of
interpretation is to be given to the subject.

 TCS v State of AP , it has been held that although normally a taxing statute is to be
strictly construed but when the statutory provision is reasonably akin to only one
meaning, principle of strict construction may not be adhered to.
 Another important principle pertinent here is that of avoidance of double taxation by the
same Act:.
 The principle is that if the words of the Act on one construction result in double
taxation of the same income, that result will be avoided by adopting another
construction which may reasonably be open.
 On the basis of this general rule it is said that several heads of income mentioned in
the Income tax laws are mutually exclusive and a particular income can come under
only one of the heads.
 CIT v BC Srinivasa Setty
 It has been held that when there is a case to which the computation provisions cannot
apply at, it can be concluded that such a case was not intended to be brought within
the charging section

c. Qualifications of Rule of Strict Construction

 When the statutory provision is reasonably open to only one meaning, no question of
strict construction of a taxing statute arises.

 Strict construction of a taxing statute does not mean that where the subject falls clearly
within the letter of law, the court can avoid the tax by putting a restricted construction
on the basis of some supposed hardship or on the ground that the tax or penalty
imposed is heavy or oppressive.

 Where two views are possible, the one in favor of the assessee must be adopted
(Union of India v Onkar S Kanwar)

 Where the literal interpretation leads to absurd or unintended results, the language of
the statute can be modified to accord with the legislative intention and to avoid
absurdity also applies in interpreting a taxing statute.
  A taxing statute must be construed reasonably and receive purposive construction so
as to give effect to purport and object they seek to achieve. The Interest Tax Act is a
taxing statute. It has been held that the Act must receive purposive construction and
the Union of India cannot direct or permit the bankers or the financial institutions to
raise interest( Indian Bank’s Assn. v Devkala Consultancy Service).

 A provision of exemption from tax in a fiscal statute is to be strictly construed. It is a

well-known principle that a person who claims an exemption has to establish it and the
rule of strict construction does not negative its application. There is ample authority
for the view that this principle applies to exemptions granted in taxing law as well
441.

 There are two opinions regarding construction of exemptions:

i. One view says that an exemption in case of ambiguity should be liberally

construed in favor of the subject confining the operation of the duty;

ii. ii. Second view says that exemptions from taxation have a tendency to increase
the burden on the other members of society and should, therefore, be deprecated
and construed in case of doubt against the subject.

EVASION OF STATUTES
McDowell & Co. Ltd. v Commercial Tax Officer
 In this case it was observed that the proper way to construe a taxing statute, while
considering a device to avoid tax, is not to ask whether the provisions should be
construed literally or liberally, nor whether the transaction is no unreal and not prohibited
by the statute, but whether the transaction is a device to avoid tax, and whether the
transaction is such that the judicial process may accord its approval to it.
 It is neither fair nor desirable to expect the legislature to intervene and take care of every
device and scheme to avoid taxation.
 It is up to the court to take stock to determine the nature of the new and sophisticated
legal device to avoid tax and consider whether the situations created by the devices could
be related to the existing legislation with the aid of emerging techniques of interpretation.
3. EXPLAIN THE GENERAL PRINCIPLES REGARDING RETROSPECTIVE
OPERATION OF STATUTES. ******

INTRODUCTION
 The operation of statutes is of two types, i.e. the Prospective operation which seeks to
govern current activities, events & the Retrospective operation of statutes
which seeks to govern past acts, events as to impair an existing right or obligation.

 The use of expression retrospective operation of statutes is at times vague &

misleading.

 In the case of Indira Nehru Gandhi vs Raj Narain the court observed that:The
legislature can make a valid law, it may provide not only for the prospective operation of
the material provision of the said law, but it can also provide for the retrospective
operation of the said provisions.

 But a retrospective operation is not to be given to a statue so as to impair an existing

right or obligation, other than as regards matter of procedure, unless that effect cannot be
avoided without doing violence to the language of the enactment. If the enactment is
expressed in language which is fairly capable of either interpretation, it ought to be
construed as prospective.

RETROSPECTIVE OPERATION

General Principles

i. Power to make retrospective laws

 The Union Parliament and State Legislatures have plenary powers of legislation within
the fields assigned to them and subject to certain constitutional and judicially recognized
restrictions can legislate prospectively as well as retrospectively.

 The power to make retrospective legislation enables the Legislature to obliterate an

amending Act completely and restore the law as it existed before the amending Act317.
This power has also been often used for validating prior executive and legislative acts by
retrospectively curing the defect which led to their invalidity and thus even making
ineffective judgments of competent courts declaring the invalidity.

 Thus, if a state Legislature passes an Act on a subject which falls outside its competence
and within the competence of Parliament and is for that reason held invalid, Parliament
can by passing a retrospective Act which incorporates the State Act cure the invalidity
ii. Statutes dealing with substantive rights
 It is a cardinal principle of construction that every statute is prima facie prospective
unless it is expressly or by necessary implication made to have retrospective operation.

 There is a presumption of prospectively articulated in the legal maxim NOVA

CONSTITUTIO FUTURIS FORMAM IMPONERE DEBET NON PRAETERITIS, i.e.,
‘a new law ought to regulate what is to follow, not the past’, and this presumption
operates unless shown to the contrary by express provision in the statute or is otherwise
discernible by necessary implication.

 But the rule in general is applicable where the object of the statute is to affect vested
rights or to impose new burdens or to impair existing obligations. Unless there are words
in the statute sufficient to show the intention of the Legislature to affect existing rights, it
is ‘deemed to be prospective only’.

iii. Statutes dealing with procedure:

 Statutes dealing with matters of procedure are presumed to be restrospective unless such
a construction is textually inadmissible.

 The rule that an Act of Parliament is not to be given restrospective effect applies only to
statutes which affect vested rights. It does not apply to statutes which only alter the form
of procedure or the admissibility of evidence, or the effect which the courts give to
evidence. If the new Act affects matters of procedure only, then, prima facie, it applies to
all actions pending as well as future.

iv.Statements of the rule against retrospectivity:

 The classification of a statute as either substantive or procedural does not necessarily
determine whether it may have a retrospective operation. A statute of limitation is
generally regarded as procedural but if its application to a past cause of action has the
effect of reviving or extinguishing a right of suit such an operation cannot be said to be
procedural.

 It has also been seen that the rule against retrospective construction is not applicable
merely because a part of the requisites for its action is drawn from a time antecedent to
its passing.

 For these reasons the rule against retrospectivity has also been stated avoiding the
classification of statutes into substantive and procedural and avoiding use of words like
existing or vested.

v. Language not always decisive

 Although the language used is the most important factor in question on applicability of a
particular statute to past events but it cannot be said that use of present tense or present
perfect tense is decisive of the matter that the statute does not draw upon past events for
its operation

CASE LAWS
Union of Inda v Raghubir Singh
A close attention must be paid to the language of the statutory provision for determining the
scope of the retrospectivity intended by Parliament

Birmingham City Council v Walker

Another principle flowing from presumption against retrospectivity is that ‘one does not
expect rights conferred by the statute to be destroyed by events which took place before it
was passed
4. EXPLAIN THE RULES RELATING TO THE COMMENCEMENT OF STATUES
INTRODUCTION
MEANING
COMMENCEMENT OF STAUTES
 According to S 3 (13) of General Clauses Act, 1897, ‘Commencement’, used with
reference to an Act, means the day on which the Act comes into force.
 According to S5, General Clauses Act, ‘unless provided otherwise, a Central Act comes
into operation on the day it receives the Presidential assent and is construed as coming
into operation immediately on the expiration of the day preceding its commencement.
 The commencement of an Act at times, is
 Postponed to some specified future date or to such date as the appropriate
government may, by notification in the Official Gazette, appoint; or
 Provision is made for appointment of different dates for coming into force of
different parts of the same Act.
 Union of India v Sukumar Sen Gupta
 An Act cannot be said to commence or to be in force unless it is brought into
operation by legislative enactment or by the exercise of authority by a delegate
empowered to bring it into operation.
 A provision in a Bill does not come into operation unless the enacting process is over
and the resultant Act containing that provision is brought into operation.
 But an Act can provide the provisions of a Bill on a given subject will come into
operation on their introduction in the Legislature.

 Pieco Electronics & Electricals Ltd. v Collector of Central Excise

 In this case, it was held that S 4 of the Provisional Collection of Taxes Act, 1931
provides that a declared provision (which refers to a provision relating to increase of
a duty of Customs and Excuse with a declaration that it is in public interest that the
provision should have immediate effect) will have the force of law immediately on
the expiry of the day on which the Bill containing the provision is introduced and it
will cease to have the force of law when the provisions of the Act come into
operation as an enactment.
 Fuerst Day Lawson Ltd. v Jindal Exports Ltd
 In this case, it was held that when an Act is preceded by an identically worded
Ordinance and the Act contains a provision that ‘all actions and orders under the
Ordinance are deemed to have been under the Act’, for all practical purposes the Act
will be deemed to be in operation and effective from the date of commencement of
the Ordinance.

 Panchugopal Barua v Umesh Chandra Goswamy

 In this case, it was held that an Act not applicable to an area or a State cannot be
made to apply there by judicial fiat but if a provision in such an Act embodies a
principle of justice, equity or good conscience the principle so embodies may be
applied to a case arising from an area or state to which the Act does not extend, if the
fact situation of the case so requires.
5. WHY SHOULD PENAL STATUTE BE CONSTRUCTED IN TA STRICT SENSE?
EXAMINE.

INTRODUCTION
 Penal Statutes may be defined as those statutes that impose penal liability on a person
who is guilty of any offence.
 The word penal connotes some form of punishment imposed against the individual by
mandate of the State. In Halsbury’s laws of England a penal statute has been described as
one whose primary object is expressly enforceable by fine, imprisonment or other
punishment.
 A statute is to be regarded as penal if it imposes a fine, penalty or forfeiture other than a
penalty in the nature of liquidated damages, or other penalties that are of the nature of
civil remedies.

GENERAL RULE OF INTERPRETATION OF PENAL STATUTES

 In a penal law if there appears to be a reasonable dubiety or ambiguity, it shall be decided
in favour of the person who would be liable to the penalisation.

 If a penal provision fairly be so construed as to avoid the punishment, it must be so

interpreted. If there can be two reasonable interpretations of a penal provision, the more
lenient should be made applicable.

 The court will inflict punishment on a person only when the circumstances of the case fall
unambiguously fall under the letter of the law.

 Legislation which deals with the jurisdiction and the procedure relation to imposition of
the penalties will be strictly construed.

 Anup Bhushan Vohra v. Registrar General,

 In this case, High Court of Judicature at Calcutta on (2011) the Apex Court held that
the contempt proceedings being quasi-criminal in nature, burden and standard of
proof is the same as required in criminal cases.
 The charges have to be framed as per the statutory rules framed for the purpose and
proved beyond reasonable doubt keeping in mind that the alleged contemnor is
entitled to the benefit of doubt.
 Law does not permit imposing any punishment in contempt proceedings on mere
probabilities; equally, the court cannot punish the alleged contemnor without any
foundation merely on conjectures and surmises.
  As observed above, the contempt proceeding being quasi-criminal in nature require
strict adherence to the procedure prescribed under the rules applicable in such
proceedings.

STRICT RULE OF INTERPRETATION OF PENAL STATUTES

 It is a general rule that penal enactments are to be construed strictly and not extended
beyond their meaning.

 According to Crawford criminal and penal statutes must be strictly construed, that is they
cannot be enlarged or extended by intendment, implication, or by any equitable
consideration.

 In other words, the language cannot be enlarged beyond the ordinary meaning of its term
in order to carry into effect the general purpose for which the statute was enacted.

 The rule of strict construction requires that the language of a stature should be so
construed that no case shall be held to fall within it,which does not come within the
reasonable interpretation of the statute.

 It has also been held that in construing a penal statute it is a cardinal principle that in case
of doubt, the construction favourable to the subject should be preferred. But these rules
do not in any way affect the fundamental principles of interpretation

BASIS OF STRICT RULE OF INTERPRETATION OF PENAL STATUTES

 The purpose of strict construction was to mitigate the rigour of such harsh sentences and
sweeping condemnations.
 According to Maxwell the rule of strict construction of penal statutes manifests itself in
four ways :
1) Express language is necessary for creation of criminal offences; therefore, no act is to be
deemed criminal unless it is clearly made so by words of the statute concerned. But it is
not necessary that a particular penalty be specified in order that an act or omission may
constitute an offence.
2) The words setting out the elements of an offence are to be strictly construed. And if there
is any reasonable doubt or ambiguity it will be resolved in favour of the person charged.
A reasonable interpretation which will avoid the penalty must be adopted. If there are
two reasonable constructions the court must give the more lenient one. The court must
always see that the person to be penalized comes fairly and squarely within the plain
words of the enactment.
3) Punishments can be imposed only if the circumstances of the case fall clearly within the
words of the enactment.
4) Similarly, statutes dealing with jurisdiction and procedure are, if they relate to the
infliction of penalties, strictly construed.

PROCEDURE OF STRICT RULE OF INTERPRETATION OF PENAL STATUTES

 Strict construction of a penal statue means that it is to be construed narrowly in favour of
the person proceeded against.
 This rule implies a preference for the liberty of the subject in case of ambiguity in the
language of the provision.
 It is well founded principle that if the words used in a criminal statute are reasonably
capable of two constructions, the construction which is favourable to the accused should
be preferred but in constructing the relevant words it is obviously necessary to have due
regard to the context in which they have been used.

Tolaram v State of Bombay(1954)

 The Supreme Court observed that: “If possible and reasonable construction can be put
upon a penal provision the court must lean towards the construction which exempts the
subject from penalty . It is not competent to the Court to stretch the meaning of an
expression used by the legislature in order to carry out the intention of the legislature”
In Rattan Lal v State of Punjab (1965)
 In this case, the accused, a sixteen year old boy was convicted for outraging the modesty
of a girl aged seven years after having committed house trespass. The Magistrate
awarded him imprisonment for six months and fine. After this sentence was passed, the
Probation of Offenders Act 1958 came into existence. The accused appealed to the
Additional Sessions Judge and then to the High Court in revision without claiming
benefit under the Probation of Offenders Act. After the High Court rejected his revision,
he pleaded before the Supreme Court for benefit of probation as he was below twenty-
one years in age. The Supreme Court, by a majority, held that the benefit of probation
could be given to him.
Q: OPERATION OF INTERPRETATION OF STATUE.

Operation of statutes in general means usage of statutes which we bound to use law maker
and will be used by the law follower.

TYPES OF OPERATION OF STATUTES

The operation statutes are of two types, i.e.
Prospective Operation
which seeks to lead current and future activities, events which are deemed to organize the
regulatory system intact. prospective with reference to statutes shows that it is concerned
with or applying the laws in future or at least from the date of commencement of the statute

Retrospective Operation:
Which seeks to govern past acts, events as to impair an existing right or obligation. A
retrospective statute contemplates the past and gives to a previous transaction some different
legal effect from that which it had under the law when it occurred or transpired.

PROSPECTIVE OPERATION OF STATUTES

Meaning
The future activities and events of the law are been decided to analyze and articulate the all
the amendments made with respect to the fundamental rights till the day of the decision in
the case would continue to remain valid and effective. All the provisions made in the
purview of the future are meant to be prospective statutes.
Doctrine of Prospective Overruling
The doctrine of Prospective Overruling originated in the American Judicial System. It
dictates that a decision made in a particular case would have operation only in the future and
will not carry any retrospective effect on any past decisions
In Shankari Prasad Vs. Union of India:
The Supreme Court held that:
i. The power of the court to amend the constitution, including the fundamental rights, was
contained in Art, 368 of the Constitution.
ii. The word law in Art 13(2) did not include ‘ an amendment of law made in exercise of
constituent power’.
Sajjan Singh Vs. State of Rajasthan, AIR. 1965 SC 845.
In the case the 17th Amendment, which added several legislations to the 9th Schedule
making to the 9th Schedule making them immune from attack on the ground of violation of
fundamental rights, was challenged. Though this case reiterated the opinion of Shankari
Prasad's case, Justice Hidayathullah and Mudholkar J. expressed doubts whether
fundamental rights created no limitation on the power of amendment.

Restrictions on the Applications of the Doctrine of Prospective Overruling

The learned judges imposed following three restrictions on the application of this
principle:

a. That the principle of prospective overruling would for the time being used in
constitutional matters only;
b. That the Supreme Court alone, and no other court, would have the authority to apply
the principle; and
c. The scope of the prospectively to be imposed is a matter of discretion for the Supreme
Court which is to be molded in accordance with the justice of the cause or matter
before it.

Pros and Cons of the operation of statutes

i. It gave parliament vast power to amend

ii. it chooses and its exercise is essential for public good, to bring about radical changes
in the realm of property law.
iii. it saved the rights like right to equality, right to freedom, including rights like right of
the press, right to personal liberty, right against exploitation, right to freedom of
religion, cultural and educational rights to Constitutional remedies.
iv. it was hardly criticized that the judgment of the Supreme Court tied the hands of the
Parliament and prevented it in future to usher in the agrarian and other economic
reforms so essential reforms so essential for the progress and prosperity of the country
is without substance.

RETROSPECTIVE
CONCLUSION.

Q- REPEAL OF STATUES/ CONSEQUENCE OF REPEAL OF STATUE/WHAT IS

REPEAL AND EXPIRY OF STATUTE. ITS EFFECT
EXPIRY AND REPEAL STATUE
A Statute is a formal written enactment of Legislative authority that governs a country, state,
city or county. In Simple words, it is the Law, Enactment Act. There are Several Types of
Statutes, Such as Temporary Statute, Perpetual Statute, Consolidating Statute, Codifying
Status, Fiscal Statute, Remedial Statute, Penal Statute, Declaratory Statute. Generally,
Statute can be classified with reference to its duration, Method, Object, and extent of
Application.
A temporary Act (Statute) expires after a specified time unless its duration is extended by a
fresh enactment or under powers conferred under the Act. A statute is temporary when its
duration is only for specified time and such Statute expires on expiry of the specified time
unless it is repealed earlier.
After expiry of the temporary Statute, it cannot be made effective merely by amending the
same. The only remedy is to revive the expired Statute by and enacting a Statute in similar
terms or by enacting a Statute expressly saying that the expired Act is herewith revived.

EFFECTS OF EXPIRY OF STATUTES

When a Temporary Act expired Section 6 of the General Clauses Act 1897, which in terms
is limited to repeals, has no application. The effect of expiry, therefore, depends upon the
construction of the Act itself
Legal Proceeding under Expired Statute
 These type of questions often arises in connection with the legal proceeding in relation
to a matter connected with the temporary Act.
 . The legislature very often and enacts in the Temporary Act a saving provision similar
in effect to Section 6 of the General Clauses Act 1897. But in the absence of such
provision, the normal rule is that proceeding against the person under the temporary
statute ipso facto terminates as soon as stated expires,
 a person, therefore, cannot be prosecuted and convicted for an offense against the act
after its expiration in absence of the saving provision, and if prosecution has not ended
before the date of expiry of the Act, it will automatically terminate as a result of
termination of the Act.
Trust Mai Lachhmi Sialkoti Bradari v. Amritsar Improvement Trust(1962)
In this case the petitioner was facing detention under a temporary statute relating to
preventive detention. The statute got expired but some of its provisions were re-enacted.
The main issue was will detention automatically come to an end on the expiry of the statute?
Court held that a temporary Act expires, the normal rule is that any appointment,
notification, order, scheme, rule, form or bye-law made or issued under the Act will also
come to an end with the expiry of the Act and will not be continued even if the provisions of
the expired Act are re-enacted; the reason being that section 24 of the General Clauses Act,
1897, does not apply to such a situation

Notifications, Orders, Rules etc made under temporary Statutes

In case a Temporary Act expired, the general rule is that any appointment, order,
notifications schemes, rule form or bye-law made or issued under the Temporary Act also
comes to an end with the expiry of such act and will not be continued even the provision of
the expired Act are re-enacted, the reason being that Section 24 of the General Clauses Act
1897 does not apply to such a situation.

Expiry does not make the statute dead for all purposes
 A temporary Statute even in absence of a savings provision like Section 6 of the
General Clauses Act 1897, is not dead for all the purposes. The nature of right and
obligation resulting from the provisions of a Temporary Act and their character may
have to be regarded in determining whether the said right or obligation is enduring or
not.
 The person who has been prosecuted and sentenced during the continuance of
temporary Act for violating its provision cannot be released before he serves out his
sentence even if the temporary Act expires before the expiry of the full period of
sentence.
Wicks v.Director of Public Prosecutions
In this case it was held that when a temporary Act expires, section 6 of the General Clauses
Act, 1897, which in terms is limited to repeals, has no application, and the same has been
held in the case of. The effect of expiry, therefore, depends upon the construction of the Act
itself.

REPEAL OF STATUTES
 In general, the term repeal stands for to cancel or to revoke. But in the context of law, it
means to “abolish statutes”. Repeal of statutes means the abolition of the law, and once if
any statute is abolished then it is considered void and possesses no effects.
 As per Halsbury’s Laws of England, the term repeal stands for revoking and abolishing
an act and all its effects which cause it to cease to be a part of statutes of books or body
of law.
 According to the Black’s law dictionary, the term repeal means a legislative act which
abrogates or obliterates an existing statute
 There exist two types of statutes temporary and perpetual. Temporary statutes tend to
have effects for a specific period of time. They have no effects after the expiry of the
specific period, however, the permanent or the perpetual statute is the one in which the
statute remains effective until it is substituted or repealed by the legislative act. The
power to repeal a statute is conferred to the legislature is similar to the powers it has for
the enactment of a statute.
 . Under General Clauses Act, 1897, Section 6 "Repeal" connotes abrogation or
obliteration of one statute by another, from the statute book as completely "as if it had
never been passed."
 When an Act is repealed "it must be considered (except as to transactions past and
closed) as if it had never existed."

OBJECT OF REPEALING ACT

 The primary object of this act is to bring necessary changes in the existing law for
changing socio-economic and cultural conditions from time to time.
 The purpose of this Act is to remove the outdated or obsolete matter from the body of
law.
 After the removal of obsolete matter, it is the court that decides whether the new
provision meets its goal and has different intentions or not.
 This act is the editorial revision by abolishing obsolete and unnecessary matter of the
statute and adding new and proper information in the books of the statute.

KINDS OF REPEAL
There are two types of repeal:
1. Express repeal
2. Implied repeal
Express Repeal
 Express repeal is an expression which means the abolition of the previously enacted
statute by the newly enacted provisions of a statute through expressed words
embedded under the new statute enacted.
 The statute which has been repealed is called repealed statute and the one which
replaces the earlier statute is called the repealing statute.
 In general, when an earlier statute or some of its provisions are repealed through
express words embedded under the newly enacted statute stating that the provisions
are now of no effect is called the express repeal.
Essential Features That Constitute Express Repeal:
• The first and foremost feature is that there must be a repealing statute.
• The earlier statute must be repealed by the new enacting or repealing statute.
• The enacted statute must have clear intention showing the effect of the repeal..
R. v. longmead,
In the instant case, it was held that the legislature in order to pass a repeal or continue any
statute is not restricted to use precise forms of words.
Bhagat Ram Sharma v. Union of India
it was been held that "there is no real distinction between repeal and an amendment." It has
also been held that "where a provision of an Act is omitted by an Act and the said Act
simultaneously re-enacts a new provision which substantially covers the field occupied by
the repealed provision with certain modification, in that event such re-enactment is regarded
having force continuously and the modification or changes are treated as amendment coming
into force with effect from the date of enforcement of re-enacted provision."

Implied repeal
 The term implied means implicit or hinted. So when a statute becomes obsolete and it
is inferred that it is no longer and shall be repealed with the newly enacted statute then
this process of repealing is called implied repeal.
 In the case of implied repeal, the burden lies over the person who asserted the
implication of repeal.
 However, it has also been mentioned that if the newly enacted statute shows no clear
8intention or is inconsistent with the provisions of the earlier act then such an
assertion or presumption is rebutted and the act of repeal is done by inferring
necessary implications
 The concept of implied repeal is loosely based on the following maxim “Leges
posteriores priores contrarias abrogant”. This means that the earlier or previously
enacted law shall be obliterated or abolished by the new one
Under the following circumstances, the implied repeal is inferred:
 • The first circumstance is when both the subsequent and the earlier enacted acts are
inconsistent with each other one of the two can remain effective.
• When the subject of the earlier act is covered by the act and is intended to substitute.

Test of the Implied Repeal

There is the assertion against the repeal by implication. The reason for making such an
assertion is that legislature while making or enacting the law has full knowledge about the
current laws on the subject matters. If the legislature has no provision regarding the repeal of
the statute then it is asserted that the legislature has no intention to repeal the existing statute.
Municipal council, Palari v. T.J. Joseph (1963)
In the instant case, it was held that if an act or provision enacted is inconsistent from the act
previously enacted and one of the acts must be obliterated. The presumption, in this case,
rebutted and the implied repeal is inferred.
For the implied repeal of a statute following points are to be considered:
• Whether the previously enacted laws are in direct contradiction to the later enacted laws.
• The conflict between the laws is of such a nature that can’t be resolved and reconciliation
between the laws is not possible.
• Whether the newly enacted act is not consistent with the previously enacted act and one has
to be obliterated.
• When both the laws are of such a nature that occupy and deals with the same field.

EFFECTS OR CONSEQUENCES OF REPEAL

The effects of the repeal of a statute have been described under the following heads:
• In respect of common law
• The general effect of repeal
• General clause Act, 1897

Effects or repeal with respect to common law

• Common law is commonly known as the law made by the judge. It contains the following
effect regarding the repeal of the statute.
 • The first effect is that the statute repealed is abolished and obliterated and becomes dead as
if the enactment of the statute.
• All the rights created and enshrined under the repealed act is removed.
• The repealed portion gets resuscitate if the repealing act is repealed by the new subsequent
act and such an act shows its intentions.

General consequences of repeal

• A newly enacted law repudiate the existing one.
• The statute after getting repealed becomes ineffective.
• Statute repealed is abolished by the repealing statute as if it had never been made by the
legislature.
• Except for a saving clause, each and every part of the statute is considered unconstitutional.
• In order to validate a transaction made under a repealed statute, the law can retrospectively
amend the statute even after it is obliterated.

Effects embedded under the General Clause Act, 1987:

If any act made after the incorporation and commencement of this Act, repeals any statute
made until now then until a different intention or object appears between the act and the
repeal shall not- effects the operation commenced under the provision of this Act.

CONCLUSION
It can be concluded that the Repeal of statutes means the abolition of the law, and once if any
statute is abolished then it is considered void and possesses no effects
The primary object of this act is to bring necessary changes in the existing law for changing
socio-economic and cultural conditions from time to time. The purpose of this act is to
remove the outdated or obsolete matter from the body of law. After the removal of obsolete
matter, it is the court that decides whether the new provision meets its goal and has a
different intention or not. This act is the editorial revision by abolishing obsolete and
unnecessary matter of the statute and adding new and proper information in the books of the
statute.

Q. LANGUAGE OF STATUE SHOULD BE READ AS IT IS

BASIC RULES OF INTERPRETATION
 There are 3 widely accepted and adopted basic principles in interpretation of statutes
which runs across the process end to end, namely;
o Intention of the Legislature (LITERA LEGIS & SENTENTIA LEGIS)
o Statute must be read as a whole in its context (EX VISCERIBUS ACTUS)
o Statute to be construed to make it effective and workable than null (UT RES
MAGIS VALEAT QUAM PEREAT)
 And every principle and rule of interpretation and construction of statutes are in
furtherance on the basis of certain fundamental principles, namely;
 CONSTRUCTION EXVISCERIBUS ACTUS – connotes that every part of statute
should be considered with reference to context, and at the same time it is also duty of
the Court to determine the question while looking at the scope and purpose of the Act
and by examining the relation of that provision with the objects sought to be achieved
by such enactment. As cited in Pyare Lal Tandon V State of UP.
 JUS DICERE, NON JUS DARE - To declare the law, not to make it; the duty of the
court is to expound the law, not to make it.
 LEX NIL (Or NIHIL) FRUSTRA FACIT – The Law does nothing in vain.
 VERBIS LEGIS NON EST RECEDENDUM – From the words of the law there must
be no departure. VERBIS STANDUM UBI NULLA AMBIGUITAS – One must
abide by the words where there is no ambiguity.
 LOQUITOR UT VULGUS – Court should interpret / construct according to the
common understanding and acceptation of the terms.
 Statute must be read as a whole in its context (EX VISCERIBUS ACTUS)
 The meaning of this maxim is that every part of the Statute must be construed within the
four corners of the Act.
 No provision should be interpreted in isolation. Wherever the language of a provision is
ambiguous and open to alternative constructions due to uncertainty of meaning of the
words used therein, the provision has to be read as a whole in its context.
 It is not permissible to omit any part of it and the construction of a section should be
made of all parts together.
 Legislature, while enacting the law, is presumed to have used precise words and clear
language to express themselves and to have taken all precautions to ensure that no
ambiguity remains.
 Therefore, while construing a provision, the language should be read as it is and it should
not be strained to show an ambiguity therein.
 In Kehar Singh v State, the Supreme Court observed that the words and sections like
men do not have their full significance when standing alone because like men they are
better understood by the company they keep.
 In Union of India v Mamta Anurag Sharma, the respondent belonged to the IPS of
West Bengal Cadre, married to an IPS officer of Andhra Pradesh Cadre, sought for
transfer to AP which was not considered. She therefore moved the High Court of AP by
filing Writ Petition, which was allowed. On appeal before Supreme Court, it examined
the entire scheme of transfer policy under which respondent had sought transfer to AP
cadre, including its preamble and observed that the High Court has not taken into
consideration the preamble of aforesaid transfer policy which specifically provided that
the transfer of any spouse of All India Service Officers should not be allowed to Home
State and since the Home State of respondent is AP, there is no question of directing the
Central Government to consider the case of respondent to transfer her to AP IPS Cadre.
The order of AP High Court was set aside.
 In Rupak Kumar v State of Bihar, the Supreme Court held that from a conjoint reading
of sections, 7, 10 and 16 of Prevention of Food Adulteration Act, 1954, it will appear that
the Act is intended to prohibit and penalize the sale of any adulterated article of food, and
hence the term ‘store’ will take color from the context and the collocation in which it
occurs in S7 and S16 of the Act. Therefore, ‘storage’ of an adulterated article other than
fro sale would not fall within the purview of S16 of the Act..

 In Union of India v Sheo Shambhu Giri, the Supreme Court held that the expression
‘transships’ occurring u/S 23 of the Narcotic Drugs and Psychotropic Substances Act,
1985, must necessarily be understood in the context of the scheme of the section, and the
preceding expressions ‘imports into India’ and ‘exports from India’, to mean only
transshipment for the purpose of either import into India or export out of India.

Q. INTERPRETATION OF CODIFYING AND CONSOLIDATING STATUES.

INTRODUCTION ON IOS
STATUTES
CLASSIFICATION.
CODIFYING AND CONSOLIDATING STATUTES

CODIFYING STATUTES
 the purpose of a codifying statute is to present an orderly and authoritative statement of
the leading rules of law on a given subject, whether those rules are to be found in statute
law or common law.
 The essence of a codifying statute is to be exhaustive on the matters in respect of which it
declares the law and it is not the province of a Judge to disregard or go outside the letter
of enactment according to its true construction.
 In Commr. Of Wealth Tax v Chander Sen,in construing the Hindu Succession Act, 1956,
which is an Act to amend and codify the law relating to intestate succession among
Hindus, it is not permissible to apply the principles of Hindu law on matters covered by
the Act as a son inheriting his father’s separate property u/S 8 of the Act takes it as his
exclusive property and the property does not become coparcener property with his sons.
 In Mumbai Kamgar Sabha, Bombay v Abdulla Bhai Faizulla Bhai, it was held that the
Payment of Bonus Act, 1965 does not cover all categories of bonus and is restricted to the
subject of profit bonus. The result is that the Act speaks as a complete Code on the
subject of profit bonus and does annihilate by implication other different and distinct
kinds of bonus such as customary bonus. Consolidating Statutes – the purpose of a
consolidating statute is to present whole body of statutory law on a subject in complete
form, repeating the former statute.

A CONSOLIDATING STATUTE is not a mere compilation of earlier enactments

 . The object of the consolidation is to make a useful Code which should be applicable to
the circumstances existing at the time when the Consolidating Act is passed. For this
object, all the statutory law improvement, and • Consolidation with Law Commission
amendments bearing upon a particular subject is collect and is transformed into a useful
Code.
 The provisions contained in a consolidating statute may have their origin in different
legislations, and if between two such provisions inconsistency occurs, it may be
legitimate to refer to respective dates of their first enactment for resolving inconsistency.
 There are three types of Consolidation Acts: - • Pure consolidation i.e., re-enactment; •
Consolidation with correction and minor

ENABLING STATUES:
 Enabling is a term used for laws that confer legal powers to someone or something.
An enabling act makes it possible for authorities to take action.

 One meaning of the verb enable is "to provide with legal powers," so the adjective
formed by adding -ing gets used to describe legislation that has that empowering effect.

 Adjective- providing legal power or sanction, “an enabling resolution”,

“enabling power”

 The statute which officially allows what was previously forbidden or introduces new
powers is called Enabling Statute.

 As per law dictionary and Wikipedia enabling means “to give the meaning or to make
anything operational” and statute means “a written law passed by the legislature in the
state or federal state”.

 It basically puts forward the general propositions which the court can apply during its
procedure. Thus, we can conclude that enabling statute means “a statute that permits
what was previously prohibited or that creates new powers.” It is a statute which either
gives new powers or extends the powers to corporation or public in general.

 As mentioned above, Enabling Statute means statute which either enlarges common law
or makes something lawful which otherwise was unlawful. Instances of enabling statute
can be acts authorizing compulsory acquisition of land for public benefit or prohibition
of public and private nuisances. Such a statute grants or extends authority to carry on the
procedure of the act and these rules can provide for several matters sans the preconceived
opinion of the current provisions.

PURPOSE & EFFECTS

 It defines the procedural rules and formalities for all federal agencies and the rule book
for administrative agencies. Although powers differ from agency to agency, it is possible
to make accurate generalizations about the powers of the typical administrative agency.

 One of the principles of law with regards to the effects of an enabling statute is that if the
legislature gives the authority of something to be done, it at that same time gives the
powers by all the crucial presumptions and information to accomplish every act which is
necessary for carrying out the purposes in view.
 This general rule under the law is that whenever the legislature gives any power to the
public at large to do anything which is public in nature, the legislature also gives all the
rights without which the power would be completely isolated. However, all the above-
mentioned circumstances cannot be implied in Accidental situations.

CONSTRUCTION OF ENABLING STATUTE

 It is to be noted that the mentioned words in the statute should be compulsorily

considered principally where ‘object of the power’ (which is either increased or
introduced) is to put into operation a specified legal right. There have been many acts
which have compulsory effects like the acts which authorize the compulsory acquisition
of land for public purposes. Also, the acts which deal with public nuisances have the
same compulsory effects.

 Likewise, by an act of parliament, many other things can be done to an enabling statute
which passed down the powers to public bodies to accomplish the acts which are public
in nature with the perspective to fulfill the requirements with the power otherwise the
powers so given would be meaningless.

 Maxim “Expressio unius est excluio alterius” in English means “express enactment shuts
the door to further implications”. In the other words, we can say that it expresses a
certain rule which states that where the legislature expressly lays down, various terms
and modes of dealing with the matter, it excludes any other mode except as specifically
authorized.

 Under certain cases, the words must be read to cover the case. However, the words so
read to cover it by reasonable construction may sometimes point more exactly to another
case. These cases are clearly within the mischief. Thus, it is important to provide a cloak
to the case rather than make it a casus omissus.

 However, the right is gone if the legislation lucidly authorizes that the act to be done
should be physically inconsistent with the continuance of an existing right because the
act so mentioned cannot be completed sans repealing the right.
MEANING OF DISCRETIONARY POWERS & RELATED RULES

 According to Wikipedia, discretionary powers means the right to decide something based
on one’s own judgment.

 The statute gives discretionary powers to the authorities to carry out the acts mentioned
in the statute in a reasonable and fair manner after consideration of various circumstances
and conditions significant to the case. So, the discretionary powers mentioned in the
statute gives the right to the donee either to use or devoid oneself from the right at his/her
own will or discretion.

 Thus, it is not necessary that the intention of the legislature should always be expressed
in directory and imperative manner but if the statute gives discretionary power to the
person regarding the rights so mentioned then the discretion is absolute. It is the duty of
those people to abide by the rules and regulation so mentioned.

 However, if such discretion is to be exercised by the court of justice then it must be

governed by those rules i.e. it should not be vague and fanciful but should be clear and
legal.

 Legislature, however grants power to the court to employ permissive words in specific
cases and circumstances as mentioned in the statute. It thus becomes the duty of the court
to exercise the powers along with the proof according to the circumstances. In such
cases, those words of the legislature should be strictly adopted in administration of
justice.
POWER AND RIGHT CONFERRING STATUTE
Power and Right are often given the same meaning, but technically there is a big difference.
This difference is of sovereignty. Power is always sovereign, while rights are conditional,
not decisive.
(1) WHAT IS POWER

 In any subject, decisive, final and sovereign is power. And when public have this
decisive power it is called civil power. For example, a citizen having voting power is
civil power. Voting power is power because when the majority of citizens elect a person
following the election process, this decision of citizens can neither be challenged, nor can
it be changed on the criteria of right and wrong
 Once citizens have exercised the power of vote and the person who has been elected as
MP, now that person will become an MP. No appeal !! And the same true with all those
posts which are elected by the vote of the citizens, such as - MLA, Sarpanch, Councilor,
Chairman etc.
 When the citizens take a decision using the power of the vote, it is sovereign, decisive,
final, and the ruler class have not any discretion to review this decision of the citizens !!
Therefore, Voting Power is the power of citizens.
 If the majority of the citizens are given the right to take a decision or response in any
matter or subject, and if the decision of the citizens is final and decisive, then it will be
said that - in such a matter the citizens have power. But if the power to make the final
decision rests with any part of governance, then it is not civil power.

(2) WHAT IS RIGHT

The decisive power in civil rights rests not with the public but with the ruler. And the ruler
clasz can legally suspend/suppress any right of the public using its discretion. Some
examples of civil rights

(2.1) Right to get justice: Indian citizens have the right to get justice, but in the end, justice
is given by the judge. In this way, the "right to get justice" rests with the citizens, but the
ultimate power to "give justice" rests with the judge (ruler class).

(2.2) Right to Information: In India, despite the possession of citizens, the decisive power
to "give information" rests with the Information Commissioner. Important information
cannot be extracted because the citizens do not have the right to information, which the
government does not want to give.

So, if any statute conferring power then we called Power Conferring Statute and if any
statute conferring right then we called Right Conferring Statute.