INTERPRETATION OF STATUTES

FULL NOTES AS PER KSLU SYLLABUS

- Yasmeen Tabassum
(Vice Principal Al-Ameen College of Law)

UNIT I

BASIC OR GENERAL RULES OF INTERPRETATION

Primary function of the court is interpretation of statutes court

interprets the legislation whenever the case comes before the
court the will of the legislature is to interpret & find out the
intention of the legislature in the language used by it in the
statute.
The courts cannot arbitrarily & consequently interpret but there
have to be certain principles which have to evolve out of the
continuous exercise by the court. The principles are sometimes
called rules of interpretation.
Interpretation means the art of finding out the true sense
of an enactment even though the same does not appear if the
words used in the enactment are given their natural meaning.

A statute is the will of the legislature; it may have the following

particulars.
1. Short tittle.
2. Long tittle.
3. Preamble.
4. Marginal Notes.
5. Headings of a group of sessions or of individual sessions.
6. Definition of Interpretation of clauses.
7. Provisions.
8. Illustrations.
 9. Exceptions & saving clauses.
10. Explanations
11. Schedules
12. Punctuations.

If it feels that legislature has expressed itself unambiguously, the

court will not deviate from the grammatical meaning as that is the will
of the legislature.

In Ramawater V/S Asst sales Tax officer (AIR 1961 SC 1325)

The question was sale of beetle leaves could not be taxed because
they are vegetables which were not subject to sales tax.
Held by SC that beetle leaves have been use in its ordinary
sense so it is not vegetable.

CLASSIFICATIONS OF STATUTES

Statutes basically are classified according to they durations,

methods, object, & extent of applications.

1. Classification based on duration

2. Classification with reference to method and
3. Classification with reference to object.

Classification based on the duration:

This type of classification is based on the time period,
1. Temporary.
2. Permanent.

A temporary statute is one where its period of operation or

validity has been fixed by the statute itself such statute
continues in force unless it has been repealed earlier until time
is fixed. E.g. Finance Act is a temporary Act, & it requires to be
passed every year.
 Permanent statute is one where no such period is mentioned but
this does not make the statute unchangeable, such statutes may
be amended, or replaced by another statute. E.g.

Classification with reference to method:

There are two classification based on method
1. Mandatory or imperative or obligatory Statute
2. Directory or Permissive Statute

Mandatory Statutes are those which compel the performance of

certain things or it compels certain things to be done in certain
manner or form. These provisions have to be strictly followed.
A directory Statute merely directs or permits a thing to be
done without compelling its performance. The neglect of these
statutes involves nothing more but liability to a penalty.
Substantial compliance of directory provision is sufficient.

CLASSIFICATION REGARDING OBJECT:

1. Codifying statutes
2. Consolidating statutes
3. Declaratory statutes
4. Remedial statutes
5. Enabling statutes
6. Disabling statutes
7. Penal
8. Taxing statutes
9. Explanatory statutes
10. Amending statutes
11. Repealing statutes
12. Curative & validating statutes.

INTERNAL AIDS OF CONSTRUCTION

various parts of the same statute pressed into service by the courts for
construing anyone of its provision, are called internal aids to
construction, such aids can be invoked under the circumstances,
whenever difficulty arises as to the meaning of the statututory
provision due to the ambiguity of the words & true intention of the
legislature cannot be inferred from the language, in such context it is
required to read the statute as a whole following the principle of ‘ex
visceribus actus’, & every part of the statute may be called internal
aid.

Various parts of the which constitutes internal aids to construction:

1. Title
2. Preamble
3. Headings
4. Marginal notes
5. Punctuation notes
6. Illustrations
7. Proviso
8. Explanation &
9. Schedules.

Title: earlier was not considered as important part of statute, & was
not used for interpretation,
According to Jus SR Das, title is an important part of the statute & is
used for ascertaining its general scope & throwing light on its
construction.
True nature of is to be ascertain not by title but by its substance.
Two kinds of titles, short title & long title
Acc to Justice Donovan ‘long title is a legitimate aid to construction,
where there is doubtful or ambiguous, long title may be looked into
to resolve that ambiguity or doubt but in the absence of doubt or
ambiguity, the meaning of the statutes cannot be narrowed down.
Use of the title for resolving an ambiguity.

Limitations of title as Internal Aids:

 1. Title has no role to play where the words are precise & bear only
one meaning.
2. Title can be called in aid only when there is an ambiguity in the
language.
3. Cannot be used to narrow down or restrict plain meaning of
language.
4. Title cannot prevail over clear meaning of an enactment .
5. Nature of statute can be determined by statute &not by title .

Preamble : it is a part of the act & it reflects the object & scope of
the statute(gist of law).
Limitations :
1. It cannot be applied as long as the words are clear & precise,
giving one meaning.
2. It can be resorted to only when the language of the provision is
capable of alternative construction.
3. It cannot extend or limit the scope of the statute.
4. It cannot over ride the provisions of the act it can only give
information on the generality of act.
5. In case of conflict b/w the provision & preamble, the latter would
fail
6. If the provision do not accord with the preamble those provisions
would cannot be invalidated on the grounds.
7. It cannot be used to control or qualify the clear & precise language
of the enactment.
8. It cannot be regarded as source of any substantive power or any
prohibition or limitation .

Definition or interpretation clauses:

meaning of the word to avoid uncertainty .

Kinds ;

1. Restrictive or exhaustive.
2. Inclusive or extensive.

Restrictive or exhaustive : which starts with the word means,

Restrictive as it does not admit of anything more than what has been
spelt in the act.

Exhaustive: because of its comprehensive nature. E.g. India defined in

sec 2(g) of Evidence Act. Meaning of deficiency, in consumer
protection Act.
In Bhuwalka Steel Industrial V/S Bombay Iron & Steel Labour
Board(2010 2 SCC 273) the SC held that use of words means in
definitions clause rules aside any meaning other than that dependent
upon plain & unambiguous language of the provision .

Inclusive or extensive definition: The definition, in which the word

used includes is known as inclusive or extensive definitions.
It is called inclusive because it embraces certain facets of meaning of
words defined leaving other open.
It is extensive because of the possibility of extension or expansion or
enlargement of meaning of defined word . The meaning is not limited
to what is provided but is capable of wider connotations .
Eg. Court, defined u/sec3 of evidence act, it says court includes all
judges & magistrates & all persons except arbitrators, legally
authorized to take evidence .
Sec2(p) of Crpc, places includes a house, building, tent, vehicles &
vessel, the word includes widen the meaning of the expression
defined.
In Oswal Fats & oils LtdV/S Add Commissioner Bareilly dist
Bareilly(2010 (4) SCC726)

Exceptions to the rules that ‘Means is exhaustive & Includes is

extensive:
Even though the words includes is used in the definition extensive in
nature yet in circumstances declared as exhaustive.
In Hemens (valuation Officer)V/S Whitsbury Farm & Stud Ltd(1988 1
All ER 72)
Sec 2(3) of Rating Act 1971 was construed. Definition of ‘Livestock’,
When both the words are used together to define a word, it is
considered to be exhaustive in nature i.e. no further addition is
possible to the enumerations already mentioned in the definition.
In Bharath coop. Bank(Mumbai) Ltd V/S Coop Bank Employees
Union(2007 4 SCC 685) the SC held the use of words means followed
by the word includes in the definition is clearly indicative of legislative
intent to make definition exhaustive.

Headings:

They are not passed by the legislature but are subsequently inserted
after the bill has become law .
They are of two kinds one which are prefix to the section & other
which are prefix to a group or a set of sections .
Acc to Lord Upjohn, while construing the act ,must read the cross
headings as well as body of the act & that will always be a useful
pointer as to intention of parliament .
In Dhoundial V/S Union of India(2004 2 SCC 579)
Headings can be relied upon to clear the doubt or ambiguity in the
interpretation of the provision.
Union of India V/S national Federation of the Blind(2013 10 SCC 772)
Limitations of Headings :
1. They cannot be called in aid if words are precise,& having one
meaning .
2. It can be referred only when language is open to more than one
construction due to uncertain meaning of words .
3. They cannot cut down nor extend the plain meaning & scope of the
words.
4. It cannot explain the clear & plain meaning of the word .
5. Heading of one section or one group of section cannot be used to
interpret another section or group of section.
Marginal Notes:
Are those notes printed on the side of the section, they are inserted
by the draftsmen & not by the legislators.
Earlier they were considered as aid to construction, but now as per
majority of the opinions they are not considered helpful.
Acc to Lord Reid, marginal notes cannot be used as aid to construction.
Aside note is a poor guide to the scope of a section for it can do more
than to indicate the main object with which the section deals .
In Union of India V/S National Federation of the Blind(2013 10 SCC
772)
It was held that the heading of a section or marginal note may be
relied upon to clear of body of the section. Heading of sec 33
‘reservation of Posts ‘in person with disabilities Act 1995 will not play
a crucial role when section is clear & unambiguous.

Limitation of Marginal Notes:

1. Marginal notes are not considered to be good aids of construction.
2. Only those marginal notes can be used which have been inserted by
the legislation .
3. Marginal notes cannot be resorted to when only provisions are clear
& giving only one meaning .
4. It can be used only when the language is ambiguous & when more
than one construction is possible.
5. It cannot control the real meaning of the word of the statute.
6. Marginal note of one section cannot be used to interpret another
section.

Punctuation Marks:

They are some conventional marks like ; , . Etc

In Director of Public Prosecution V/S Schildkamp(1969 3 All ER 1640)
here Lord Reid agreed that punctuations can be of some assistance in
construction .
In Bihar SEE V/S Pulak Enterprises (2009 5 SCC 641) it was held that
punctuations is a minor element in the interpretation of statutes, in
cases of subordinate legislation.

Limitations of punctuations : 1. no use as an internal aid.

2. Presence of comma or its absence should be disregarded if it is
contrary to plain intention of statute.
3. It cannot expand or cut down the meaning of the words .

Illustration:

These are appended to the section of the act in order to explain the
provision of law contained in that section .
It may be considered that purpose of illustrations is to make the
meaning of the section abundantly clear by giving examples .
Mahesh Chandra Sharma V/S Rajkumar Sharma(AIR 1996 Sc 869) , the
SC in this case stated observed that illustration is a part of the section
& it helps to elucidate the principal of the section .
Mudiliyar hatterjeeV/S International Film CO (AIR 1943 PC 34)
In Bengal Nagpur Railways Co Ltd V/S Ruttanji Ramji(AIR 1938 PC 37)

Limitations of illustrations:
1. Little use for interpretation as they are not part of the statutes.
2. They cannot be resorted to for construing the provision if words are
clear
3. It can be considered only when language is ambiguous.
4. Cannot control the plain meaning
5. Cannot be used to curtail or expand the ambit of the sec.
6. Cannot modify the language
7. Cannot control the context of the section.

Proviso: In some sections of the statute, after main provision is spelt

clause is added like, ‘provided that..’Eg. Sec 23, Consumer Protection
Act says “ any order arrived by an order by the National Commission
in excise of its powers conferred by sub-clause (i) of clause(a) of sec
21 may prefer the an appeal against such order to SC within a period
of 31 days.

From the date of order:

Provided that SC may entertain an appeal after the expiry of the said
period of 30 days, if it feels satisfied that there is sufficient cause for
not filing it within time “.
The part of the section commencing with provided is called proviso.
The principal of interpretation do not permit construction without
referring to proviso attached to it .
Actually proviso & section should be construed as a whole each
portion throwing light on the other .
The nature & function of the proviso is well explained in following
cases :
In CIT, Mysore V/S Indo Mercantile bank Ltd(Justice Kapur)
He said that the proper function of a proviso is that it qualifies the
generality of the main enactment by providing the main exception &
taking out as it were from the main enactment, a portion which but
for the proviso would fall within the main enactment.
In Anil M.K V/S State of Kerala (2003, 11 SCC 632)
It was held that the normal function of the proviso is to except
something out of the enactment or to qualify something enacted
therein which but for proviso would be within the purview of the
enactment. A proviso to a section cannot be used to import into
enacting part something which is not there but where enacting part is
susceptible to several meanings, it may be controlled by proviso.

Limitations of proviso:
1. It is construed in relation to section to which it appears .
2. Proviso attached to one section or sub-sec cannot be used to
qualify another section or sub-sec, nor it can be used to accept
to any thing from any other section.
In Union of India V/S Dilip Kumar Singh (2015 4 SCC 421)
Here it was held that though the proviso does not travel beyond
provision to which it is appended, Golden Rule has to be applied to
read the whole sec inclusive of the proviso in such a manner that they
mutually throw light on each other & result in Harmonious
construction.

1. If something is embraced by clear words in the enactment the

proviso cannot be used to nullify the same or exclude something or
include something in it by implication.
When the main proviso is clear a proviso cannot be used to cut it down
.
2. The ambit & scope of the enacting section cannot be widened or
curtailed by the proviso.
3. Proviso cannot be used to frustrate the real object of the main
enactment unless the words of the proviso are such that it is necessary
effect.
4. Proviso to a sec cannot be used to import into enacting part
something which is not there.

Explanation:
In some section explanation is appended after the statutory
provisions.
An explanation is considered to be part & parcel of the enactment.
They can be many reasons for adding an explanation eg. To explain
the meaning of the words contained in the section & to remove
doubts, to include something in the ambit of main enactment or to
exclude something from it , to clarify any obscurity or vagueness in the
,main enactment.
While construing a provision, the explanation attached to it should not
be neglected.
Function of explanation is not to expand but only to explain. An
explanation must be read in the view to harmonize & clear up
ambiguity of the provisions of the section or rule. However the
explanation should be restricted to the purpose for which it has been
created & should not be stretched beyond the legitimate field.
It can neither be used for curtailing or enlarging the scope of the
section . It can neither control the plain meaning of words of the
section nor can have the effect the modifying the language of the
section.

Schedule:
In many statutes the schedule is added at the end of the statute, they
are considered as the part of the statute. They provide how claim
under the act can be enforced or as to how the powers vested by
virtue of the statute are to exercised & contained prescribed forms for
working out the policy underlining the sections of the statutes .
Purpose of statutes, it is avoid encumbering the sections with the
matters of extensive details. Much importance is not attached to the
schedule, but where the words in the statute are doubtful & uncertain
in meaning, schedule may be used for throwing light on the section to
determine the meaning.

UNIT II

EXTERNAL AIDS OF CONSTRUCTION

Other than Internal Aids to interpretation which are part of the statute
itself there are other aids which are not part of the statutes they are
called External Aids. Like, dictionaries, text books, historical
background, legislative history, pleadings, conveyancing, etc the
question is whether these can be considered as external aid.
In G Shaker V/S Geetha (AIR SC 2009 2469)
In this case the report of the law commission of India may be looked
into construction of statute. But the same would not prevail over clear
& unambiguous provisions contained.
When other statutes like other statutes or documents etc. are called
in aid for the purpose of construing a provision, it is called external
aids to construction.
Parliamentary History: most important function of legislature is
enacting the law. In the process of making the law various stages are
involved.
1. Before introducing the bill in the parliament, appoints a
commission or an inquiry commission or joint parliamentary
committee or a study group for collecting the background, such
committee or commission to submit report.
2. In the light of contents of the report, a draft of proposed law is
prepared. This is bill.
3. A bill not only outlines the scheme of law to be enacted but also
contain the statement of object & reasons for which the proposed law
is required to be legislated.
4. A Bill may originate in either of the Houses i.e. The bill may first be
moved before the Raj Sabha & then lok Sabha.
According to the procedure the bill has to pass three stages known as
the first reading, second reading & third reading, first stage the bill is
introduced in the house (no discursions)
Second stage, consideration stage, in this stage the parliament holds
discussions & debates on that bill & it is discussed clause by clause. At
this stage amendment to the bill may also be moved. The same may
be recorded.
The third reading a brief general discussion of the bill takes place &
the bill is finally passed. When the bill is passed by one house to
another house, unless both the houses have given their ascend the bill
cannot be deemed to have been passed.
5. When the bill is passed by both the houses it is sent to the president
of India for his assent. It becomes law when it is ascended by the
president.
All this documents, materials created during various stages is called
Parliament History.

English practice,

1. Traditional practice, it rejects the parliamentary History as a good

aid to construction, according to this view the intention of the makers
of the law is not gathered from Parliamentary History of law. The bill
in their original form or along with their amendments, cannot be
considered as an aid to construction. The speech of ministers in the
parliament while enacting the law cannot also be considered as aid to
constructions.

The report of the debates held in the parliament while discussing the
bill & the resolution passed are also not used for finding out the
legislative intent.
The courts can consider
1. External facts to understand the subj matter.
2. Mischief which is intended to be remedied by present statute .
3. The reports of commission .
In black Clawson International Ltd V/S Papierwerk Aschaffenburg
A.G.(1975 1 ALL ER 810 HL), It was held by the House of Lords that, the
report of the committee presented to the parliament prior to
enactment could be looked for finding out the state of law at the time
of passing of act & the mischief to be remedied by the parliament but
the same report could not be relied upon for finding out the intention
of the legislature.

Criticism of traditional view: True spirit of law lies in its reason. If we

know what was the decease sought to be cured by law & the purpose
of which law was made then true interpretation of the statute can be
made & ambiguity can be resolved in the best possible manner. The
report of the committee will reflects the state of law, at the time of
passing of the act & the mischief which was to be remidified, the
report of the committee lays foundation of new enactment. The key
to opening any law is the reason & the spirit of law & the statute is the
best interpreted when we know why it was enacted, the steps taken
for understanding the object of law & the mischief intended to be
delth by statute should be part of process for getting its meaning.
Then why the report of the committee should not be considered.
Modern view: The English traditional view started losing ground & a
modern view gained momentum which considered the material
relating parliamentary History as a good aid to construction.
According to this view, the parliamentary material is the background
material which unfolds the position of common law, the mischief for
which the common law did not provide & defects or Shortcomings in
the common law due to which it failed to effectively control the
mischief.
On this basis only, new law has been enacted, object of new law is to
remedy the mischief reflected in the parliamentary material &
therefore the intention legislature can be deduced from such material.
In view of this the parliamentary material must be admitted as
legitimate aid to construction.
Other than rejecting it should be utilized for gathering the intention of
the legislature.

In Pepper V/S Hart(1993 1 ALL ER, HL) it was held here that reference
to the parliament material should be permitted as an aid to
construction of legislature, further it was stated that meaning to the
words which they cannot bear but if the words are capable of bearing
more than one meaning than why should not parliaments true
intention be enforced, clear & ambiguous statements of the ministers
in the parliament are as much the background to the enactment of the
legislation as white papers & parliamentary report.

Objections of the modern law,

1. Parliamentary material is not available easily nor easily
accessible.
2. Calling in aid the parliamentary material for construction of
statutory provision amounts to encroaching upon the freedom of
speech & debates in the parliament.
What comprises of parliamentary History,
 1. Debates on a Bill in the process of its passing Statement of
objects &
2. Reasons accompanying a legislative bill .
3. Reports of commission, inquiries.

Limitations: Debates on Bills,

1. When terms of the statute are plain & clear, debates on the
Bills cannot be considered.
2. Where the words used in the language bear more than one
meaning & hence there exists an uncertainty then only debate on bill
can be looked into.
3. Speech made in course of the bill is only indicative of the subject
intent of the speaker.
Use of data base : in chrinjith lal choudri V/S Union of India(1998 SCC
4 626)
Judge Fazal Ali, admitted that parliamentary History including the
speech of the minister introducing

Bill as evidence of circumstances which necessitated the passing of the

Act.
In Maandvi Cooperative Bank Ltd V/S Nimesh Thakur(2010 3 SCC 83)
the statement of object & reasons & speech of Finance Minister in
course of debate on Bill could be relied on. Object & reason :
1. Is not admissible as to as an aid to the construction of the
statute.
2. It cannot be used to frustrate the provisions of enactment
specifically when words used are sufficiently clear.
3. It cannot be used for deriving legislative intent & to interpret the
sections accordingly.
Use of statement of object & reasons,
In Telco V/S Gram Panchayat pimperi Waghera (AIR 1976 SC 2463)
In Utkal Contractors & Joinery Pvt Ltd V/S State of Orissa( 1987 3 SCC
279)
In Bharath Glass Tubes Ltd V/S Gopal Gas Works Ltd( 2008 6 SCC 657)
.
Use of Report of Commission, inquiry committee
In Madan Lal F Dudheiya V/S Changdeo Sugar Mills Ltd(AIR 1962 SC
1543)
In Nayak V/S AR Anthulay(AIR 1984 SC 684)

2. Historical Facts :
The state of things existing at the time when the law was enacted, the
evils existing at the time of passing of statute falls in this .
In Haydon's Case, it was laid down that ‘for the sure & true
interpretation of all statutes in general, be there any penal or
beneficial restricting or enlarging the common law, four things should
be considered;
1. The common law before making of the act.
2. The Mischief & the defects.

3. Remedy of the parliament.

4. True reason of the remedy.
The courts shall always suppress the mischief & advance the remedy.
For the purpose of understanding the subject matter of the statute
the court may consider the Historical facts which existed at the time
of passing of the statute, the could also consider the surrounding
circumstances prevailing at the time of enacting the statute.
Lord Halsbury, the subject matter with which the legislature was
dealing & facts existing at the time with respect to which the
legislature was legislating are legitimate topics to consider in
ascertaining what was the object & purpose of the legislature in
passing the act.
In Auckland Jute Co. Ltd V/S Tulsi Chandra Goswami (AIR 1949 FC 153)
acc to Justice Mukherjee, observed that for the purpose of
appreciating the scope & object of the old Act & for expanding its
language which may be susceptible to different meaning it may be
useful to remember the well known historical facts which leads to
enactment . It is settled concept of construction that the interpreter
should place himself as far as possible, in the position of those whose
words he is interpreating & the meaning of certain words & the terms
used in an ancient document or a statute can be properly explained
only by reference to the circumstances existing at the time when the
statute was enacted or the document was written.

Limitations:
1. The inferences drawn from this cannot be used to defeat the clear
language employed in the enactment itself.
2. In the case of conflict, the plain language shall survive & inferences
(conclusion) drawn from it will fail.
3. Subsequent Social Political & Economic Developments: this is an
ongoing process, the socio; political scenario of the country keeps
changing with the time.
The economic status improves with the passage of time after a couple
of years it depicts totally altered panorama. New scientific invasions
keep coming, what was out of imagination becomes a scientific reality
today.
Therefore strict adherence to that meaning of a word could cause
inconvenience. The court is bound to construe a statute in such a
manner to remove the hardship & make the law effective & workable.
Lord Steyn: the statutes are usually intended to operate for many
years; it would be most inconvenient if the courts never rely on the
current meaning of the statute.

In Kashmir Singh V/S Union of India (2008 7 SCC 259) the courts while
construing the ongoing statutes must take into account the changes
in the societal conditions, the courts also should take into
consideration development in science & technology.

In Suresh JindalsV/S Bses Rajdhani power Ltd (2008 7 SCC 663) the
court held that the creative interpretations to be adopted to give
effect to benefits of new technological advancement.

Subsequent social political & economic developments & scientific

inventions are considered by the courts & it is in this view that the
approach of the court on the same question differs.
Importance of opinion of CJ in appointment & Transfer of judges,

In SP Gupta V/S Union of India (AIR 1982 SC 149)

If husband does sexual intercourse with his wife without her consent,
he can be convicted for raping his wife , held in RV/R case(1991 All ER,
HR)
Concept of personal liberty as enshrined in Art 21 of the constitution.

In AK Gopalan V/S State of Madras( 1950 SC AIR 27)

In Ashok V/S Union of India(AIR 1997 SC 2298)

4. Dictionaries:
Words used in the statute should be interpreted in the light of their
ordinary sense. To find the meaning of dictionaries can be of
enormous help. The courts must be careful while interpreting as
the meaning of the words may be the true meaning in a particular
context. It is for the court to interpret the statute to its best.
According to Lord Coleridge, ‘iam quite aware that dictionaries are not
to be taken as authoritative exponents of the meaning of the words
used in the Acts & parliament, but it is well known rule of the court of
law that words should be taken to be used in the ordinary sense & we
are sent for instruction to these books’.
Diverse meaning of words are given in the dictionary it is very difficult
for the court to choose the correct meaning out of them.

The court has to keep in mind the context in which the word has been
used while choosing the correct meaning of the word.
In Alamghir V/S State of Bihar (AIR 1956 Sc 436)
The appellant was charged with having committed an offence
u/sec498 of IPC. One of the contentions of the accused was that the
women had come to live with him voluntarily leaving her husband,
here it could not be said he has detained her. Rejecting the contention
of the Accused the SC, stated that the dictionary meaning of the word
is not the true meaning in its true context.
The provision aims at the protection of the rights of the husband
against any person interfering with it by depriving him of the company
of his wife & in this context, hence the contention of the accused
cannot be accepted.

In ESI Corporation V/S The electric & Locomotive Company (AIR 1976
Sc 66) the question was whether the respondents were bond to
contribute monetarily under the ESI Act 1948 in respect of apprentices
of the company, the dictionary meaning of the word apprentice under
the mutually terms & conditions.
The SC held that even if apprentice is paid some kind of money by the
company, this does not make him an employee of the company & his
status remains as that of a learner.

Use of Dictionary for resolving Ambiguity: SC has consulted

dictionaries to find the meaning of the words in question & relied
upon the dictionary meaning in several cases.

In State of Orissa V/S Titagarh Paper Mills Co. Ltd (AIR 1985 SC 1293)
The SC observed that dictionary meaning of a word cannot be looked
at where word has been stationary defined. But where would not
defined course may take aid of dictionaries for meaning of word
bearing in mind that a word is used in different sense according to its
context. It was held that timber & sized or dressed logs are one & the
same commercial commodity, Beams, rafters, planks etc are also
timber.

Limitation of Dictionaries:
1. Dictionary is of no use if the language of the provision is so plain &
clear that it brings out what was intended.
2. Dictionary may be consulted only when the word is not defined in
the statute.
3. Where the expression is defined, it will bear same meaning &
dictionary meaning cannot be considered.
 5. Text Books: where the language of the statute is not precise &
words employed there in are capable of bearing more than one
meaning, the text book may be referred to resolve the ambiguity.
The analysis of the statute by a text writer of repute may also help to
understand the meaning of the enactment & hence may be consulted
for ascertaining the meaning of ambiguous word or language.
Reference to text books shall not bind the court in any manner. It is
desecration of the court to either accept or reject the meaning given
in the text book.

6. Statutes in pari Metria: Pari means same & Metria means subject
matter, & statutes in Pari Meria would refer to the statutes on
the same subject matter.
Two statutes are said to be in Pari Metria when they deal with same
subject person or thing.
It is a settled rule of construction while construing one provision of the
act it is legitimate to look into the related provision in another act
related to the same subject although those may be available in
different act.

The statutes in pari Metria can be lawfully referred to determine the

meaning of an ambiguous word, in order to resolve the ambiguity,
help can be taken from other statutes also provided they are in Pari
Metria, only the statute in Pari Metria could be legitimately taken as
aid.
The basis of this rule is the presumption that where the same words
are used in similar connection in two statutes on the same subject
matter they are intended to convey the same meaning.
But this rule shall not be applicable when the decisions on earlier acts
are inconsistent.

In Southern Petrochemical Industries Co Ltd V/S Electricity inspectors

(AIR 2007 5SCC 447)
In R V/S Loxdale(1758 97 ER 398), where there are different statutes
in Pari Materia though made at different time or even expired & not
referring to each other they shall be taken & construed together as
one system & as explanatory of one another.
When two statutes are not pari materia help of one cannot be taken
to interpret another.

In state of Madras V/S Vidhyantha Iyar(AIR 1958 SC 61),sec4 of

prevention of corruption Act 1947 was ion question which provides
that on proof that the accused any gratification other than legal
remuneration, it shall be presumed unless contrary is established by
the accused that the gratification was accepted as a bribe. This section
was held to be pari metria to the provision of Evidence Act, for
construing the words ‘it shall be presumed’, occurring in sec4

Of Prevention of Corruption Act 1947 the expression shall presume,

provided in the evidence act was considered.
Merits of the rule;
1. Avoids contradiction b/w a series of statutes dealing the same
subject.
2. Allows use of earlier statute to throw light on the meaning of a
phrases used in later statute in the same context.
3. Permits a presumption that the meaning of the same word in later
statute is same as it was in the earlier one, if context remains the
same.
4. Help from earlier statutes if in Pari Metria may be taken if used in
the same context.

7. Help from Earlier Statute:

There is a presumption that legislature knows the judicial decision
as to interpretation of the word. When a word has already
assigned a particular meaning in course of interpretation of the
act & the legislature repeats the same word in same context in a
Different legislation, it has accepted the interpretation put on
such word by the court & reproduce them intentionally so as to
 bear the same meaning. For resolving ambiguity help may be
sought by the earlier existing statutes.

Amending Acts, they add or remove certain words, language of the

statute & provisions.

After amendment, a statute is to be read & construed with

reference to the new provisions, if terms in the amending act are
ambiguous, the evolution of the statute book may be logically &
justifiably be construed.

Use of Earlier Statutes for resolving ambiguities,

In Bengal Immunity Co Ltd V/S State of Bihar (AIR 1955 SC 661)

In Commissioner of Wealth Tax West Bengal V/S Imperial Tobacco

Co of India Ltd (AIR 1967 Sc 230)

8. Help from Subsequent legislation: An earlier statute is referred

for resolving ambiguity in later Act. A later statute is generally not
used as an aid to construction of an earlier enactment.
Subsequent legislation may be looked into to derive the
legislative intent of the earlier statute.

In Ram Krishna Ram Nath V/S Janpad Sabha(AIR 1962 SC 1073) it was
held that the earlier act is truly ambiguous, the later act may in certain
circumstances serve as parliamentary exposition.

In Anand Bros (p) Ltd V/S Union of India(2014, 9, SCC 212)the Apex
court held that when an earlier enactment is ambiguous, & is open to
diverse meanings later enactment may in certain circumstances serve
as parliamentary exposition of former.

9. Incorporation of earlier act into later:

sometimes the legislation intends that certain provisions of the
earlier statute should remain operative for the purpose of later
enactment but at the same time it does not want to reproduce
those provisions word to word in such later acts for the sake of
convenience, in such events legislature adopts a particular
method which is known as incorporation, by this method
reference of the earlier act is made to the later act. In such cases
the exact language of the provision is to be imported from an
earlier act E.g.Sec 2(y) of CrPC 1973 provides ‘words &
expressions used herein are not defined but defined in the IPC
(45of 1860)’.Sec55 of MRTP (monopolies restrictive trade
practices) Act 1969, it provides for Appeal to SC against the orders
of MRTP commissioner. This sec lays down the ground for appeal
in following words ‘on one or more grounds specified in sec 100 of
CPC 1908.
When the earlier provisions of an earlier act are incorporated by
reference into subsequent legislation, the provision so
incorporated becomes the part & parcel of the later Act.

In C.M Paramasivam V/S Sunrise Plaza (2013 9 SCC 460)

Effect of incorporation, the Act presumed to have been
incorporated into later act with all the amendments made in
it.After incorporation the provision incorporated in the later act
becomes part & parcel of the later act & the later act does not get
affected by modification or repeal of the earlier act.
Ram Swaroop V/S Munshi(AIR 1963 SC 553)

10. Codifying statutes:

Factures, of codifying statutes are as follows,
1. A codifying statute may be a code only with respect to a
particular branch of a subject. It may not cover other branches
of the same subject.
2. In contrast to an ordinary enactment a code is self contained &
complete.
3. When the code covers a situation, it is not permissible to apply
to general principles; the court has to proceed on the mandate
of the code only.

11. Consolidating Statute:

It is a statute which presents the whole body of statutory laws on
the subject in complete form repealing the former statute. It is a
statute various laws on a subject at one place (it collects all
statutory enactments on a specific subject & give them the shape
of one statute .

Object of consolidating statute, is to collect the statutory law on a

particular subject & bring it down to date, in order that it may form
a useful code applicable to the circumstances existed at that time
when consultation act was passed.

Features:
a. A consolidating statute is not intended to alter the law &
therefore it is relevant to refer to the previous state of law or to
judicial decisions interpretation the repealed acts for the purpose
of construction of corresponding.
b. A consolidating act may be an amending act. This additional
purpose is usually indicated in the preamble or long title by use of
words.

Difference b/w consolidating statutes & consolidating statutes.

 1. It presents orderly statement of leading rules of law on a given
statute. It presents the whole body of statutory law on the subject
repealing former statutes.
2. Former statutes survive. Former statutes are repealed.
3. It is self contained & complete .Not as such

4. Unless the code is ambiguous or silent on an issue, the court

cannot go outside the letter of law.
Judges may refer to earlier state of law & the judicial decision
interpreting repealed act.
5. Presumption that the same words when used at different places in
same act would bear the same meaning holds good & applicable.
Presumptions are not applicable.

12. Contemporanea Expositio :

It means contemporaneous (same time or period)exposition
(explanation). They should be given contemporaneous explanation,
i.e. they should be understood in the sense which they bore at the
time when the statute was passed.
The words must be assigned the same meaning which they bore at the
time of enactment of law; the courts may enlarge the meaning to
cover the meaning of the same genetic conception, which were not
known at the time of passing of the enactment.
Foreign decisions or foreign

13.Judgments:
It is establisher rule to abide by former precedents, where the same
points came in litigation, so as to keep the scale of justice even &
steady.
Question whether foreign decisions can serve as precedent before
Indian courts & whether they have a binding force.
The use of foreign decisions is permissible, there are certain
conditions in this regards.
1. The foreign judgments sought to be referred must be of those
countries which follows the same system of jurisprudence.
 2. Importance to be given to language of Indian statutes,
circumstances & setting in which it was enacted & Indian
conditions where it is to be applied.
3. There should be similarity in political thoughts of India & that
country, the decision of the court of which is been relied.
Several judgments the SC has expressed its view on admissibility
of foreign decisions as external aid to construction.

UNIT III

SUBSIDARY RULES OF INTERPRETATION

According to Lord Halsbury, the reading of or as & is not to be resorted

to unless some other part of the same statute or the clear intention of
it requires that to be done.
The word or, is disjunctive (lacking connection or connectivity), and is
conjunctive, at time it is read vice versa, to give effect to the intention
of the legislature.
The court has interpreting the word or in sec 25N (6) of the ID Act
1947, Power is conferred on the appropriate govt to either on its own
motion or on an application made, review its order or refer the matter
to the tribunal, whether one or the other course could be adopted
depends on the facts of each case, the surrounding circumstances &
several other relevant factors.

Ishwar Singh Bindra V/S State of AP sec3 (b)(i)

(AIR 1968 SC 1540)

In State of Bombay V/S RMD Chamar Baugwala (AIR 1957 SC 699 p

709)
SAME WORD SAME MEANING: the legislature uses the same word in
different parts of the section or statute; there is a presumption that
the word is used in the same sense thought.
In parrell V/S Alexander (1976 ALL ER 726)
When same word is

The presumption is very week, & readily displaced by the context. Ie.
When the same word is used at different places in the same clause of
the same section, it may not bear the same meaning, it may differ.

Maharaja Singh V/S State of UP (AIR 1976 SC 2602)

The words or expressions used before or after the amendment should

be given the same meaning. The legislature uses the same words in
similar connection; it is to presumed that in the absence of any context
indicating a contrary intention the same meaning is to be attached.

Use of Different Words:

When in relation to the subject, matter different words are used in the
same statute, presumption lies that they are not used in the same
sense, those words have to be read in the context in which they are
referred, & if they indicate the same meaning they have to be
construed accordingly.

Rule of last Antecedents: as a corollary to the rule that phrases &

sentences in a statute are interpreted according to the grammatical
meaning, relative & qualifying words, phrases are applied to the
antecedent immediately preceding.
This is subordinate to the rule of context, a qualifying phrase has to be
referred to the next antecedent which will make sense with the
context & to which the context appears to be properly related.

In Ashwani Kumar Ghose V/S Arbinda Bhose(AIR 1952 SC 369)

In federal court also applied this principle in interpreting sec 226(1) of
Govt of India Act 1935.
In GG Council V/S Shiromani Sugar Mills Ltd (AIR 1946 FC 16)

NON OBSTANTE CLAUSE:

means ‘not withstanding’, clause begning with ‘notwithstanding

anything contained in this Act’, or in some particular provision in the
Act, or in some particular Act or in any law for the time being in force,
is some time written in the begning of the section, this is to give
enacting part of the section, in case of conflict, in over riding effect
over the provision of the statute mentioned in the non obstante
clause.

The expression notwithstanding anything in any other law occurring

in a section or an act cannot be construed to take away the effect of
any provision of the act in which that section appears.
When non-obstante clause does not refer to any particular provision
it intends to override, but refers to the provision of the statute there
has to be a determination as to which provision of determination it
answers & to which it does not
The court is required to find out the extent to which the legislature
intends to do so & the context in which the non obstante clause is
used.
When two or more laws or provisions operate in the same field & each
contain non obstante clause stating that its provisions will override
those of any other laws or provisions, stimulating the intricate
problem of interpretation arise. When two provisions in the same act
contain
Non obstante clause, they require Harmonious Interpretation of the
two seemingly conflicting provisions in the same Act. Proper
consideration is given to the object, purpose& the language employed
in both the acts.
The very purpose of non obstante clause is that the provision shall
prevail over any other provision & that the other provision shall be of
no consequences in case of any discriprency between non obstante
clause & other provisions non obstante clause would prevail over the
other clauses. Even by dictionary sense, the expression
notwithstanding implies that other provisions shall not prevail over
the main provisions.

In RC Pondayal V/S Union of India (AIR 1993 SC 1840)

In Municipal Corporation Indore V/S Rathnaprabha(AIR 1977 SC 308)

Lakshminarayan Saw Mill V/S State of Orissa(AIR 1995 Ori 114, FB)

LEGAL FICTION: Legal fiction is one which is not an actual reality which
law recognizes & the court accepts as a reality. Therefore in cases of
legal fictions, the court believe something to exist which in reality does
not exist. It is nothing but a presumption of the existence of the state
of affairs which in actually is non-existence. The effect of such legal
fiction is that a position which otherwise would not obtain is deemed
to obtain under the circumstances.

Legislature can create not only one, but a chain of legal fictions by the
same act, when a legal fiction is created by a statute, it must be given
its full effect. But the same would not mean that it should be applied
beyond the point which was not contemplated by the legislature or
which would lead to anomaly or absurdity.

Legal fiction must be given full effect although it has its limitation.
Example for legal fiction, can be found in Explanation of sec2 (15) of
the Estate Duty Act 1953, & sec7 (3) of Hindu Succession Act 1956.

A fiction should not be extended beyond its purpose.

This is well explained in case of Union of India V/S Sampath Raj (AIR
1992 SC 1417), in this case sec 5(3)(ii) of the import control order was
construed, this sec provides that ‘it shall be deemed to be a condition
of every such license (import) that the goods for import of which the
license is granted shall be the property of the licensee at the time of
import that the goods of import & thereafter upon the Clearance
through customs. The fiction created by this clause was held to be for
the proper implementation of the import order & the Imports & the
Exports Act 1947 & also for holding the license responsible for
anything & everything that happens form time of import till the goods
are cleared through customs & that the fiction cannot be employed to
attribute ownership of the imported goods to the importer in a case
where he abandons them.
I.e. In a situation where he does not pay & receive the documents of
title.
A deeming provision is a legal fiction & is in admission of non existence
of facts. When a court is interpreting a legal fiction, court has to
ascertain purpose for which fiction is created.

In Lokmat Newspapers pvt ltd. V/S Shankarprasad

MANDATORY & DIRECTORY PROVISIONS

The question whether the statute is mandatory or directory depends
upon the intent of the legislature & not upon the language in which
the intent is.
Mandatory legislation is where legal technology is required to be done
& 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
provision except this that language alone most often is not decisive &
regard must be had to the context, subject matter & object of the
statutory provision in question determining whether the same is
directory or mandatory does not depend upon phraseology used in
the statute, but it has to be determined having regards to the purpose
& object of the statute.
Directory provision in a statute, rule of procedure, consists of only
direction or instruction of no obligatory force & involves no
invalidating consequences for its discharge, as an imperative or
mandatory provision. It is a statutory or contractual instruction that is
desirable but not absolute necessary.
If a provision is mandatory an act will done in its breach will be invalid,
whereas if it is directory, the act will be valid although the non
compliances may give rise to some other penalty if provided by the
statute.

Difference b/w Mandatory provision & Directory provision.

In case of a mandatory enactment it is said that they must be stayed

or fulfilled exactly.
Directory enactments only substantial compliance is sufficient.
Whereas if it is directory, the act will be valid although the non
compliances may give rise to some other penalty if provided by the
statute.

Difference b/w Mandatory provision & Directory provision.

In case of a mandatory enactment it is said that they must be stayed

or fulfilled exactly.
Directory enactments only substantial compliance is sufficient.
The provision is not mandatory unless non-compliance with it is made
penal.
A mandatory provision must be obeyed & any act done in its breach
will be invalid but if it is directory, it will be valid.
One exception to the general rule, if certain requirement, or
conditions are provided by the statute in the interest of a particular
person, the requirement or conditions although mandatory may be
waived by him if no public interest is involved & in such a case the act
done will be valid even if the requirement or condition has not been
performed.
Use of shall, or shall & May, must & should.
The use of the word is usually mandatory, but sometimes it is not so
interoperated if the scope of the enactment.
Normally the word prima facie ought to be considered mandatory but
it is the function of the court to ascertain the real intention of the
legislature by examining the scope of the statute. The word shall
therefore shall be construed not according to the language but in the
context in which it is been used & the purpose it seeks to serve. The
question as to whether a statute is mandatory or directory would
depend upon the statutory scheme. Use of the expression shall or may
itself is not decisive. A statute must be read in the text & its context.
Whether statute is mandatory or directory would not depend upon
the user of the word shall or may. E.g. where a statute is asked to
perform a statutory duty within the time prescribed therefore, the
same would be directory & not mandatory.

But when a statute requires a public functionary to do a thing within

a specified time & also provides for consequences of inaction, it must
be held to be mandatory.
The word shall in social welfare legislation should be so read so as to
advance the cause of intended beneficiaries of the social legislation.

STATUTES IMPOSING PUBLIC DUTIES: where a statute impose a public

duty & also lays down the manner in which the act has to be done &
the time in which the duty has to be performed, injustice or
inconvenience resulting from a rigid adherence to the statutory
prescription may be a relevant factors in holding such perceptions
only directory.
A provision fixing a time, within which a public officer or authority has
to Act in performance a duty. Generally means that the statute
considers it reasonable for the officer or the authority to act within
the said period. In Chandra Mohan V/S St of UP(AIR 1966 SC 268)

FORMALITIES FOR MAKING CONTRACTS OR TRANSFERS:

For making transfers certain formalities and requirements are

prescribed, they are generally held to be imperative (vry imp) e.g.
Mode of making sale, mortgage & other transfers prescribed by the
TP Act 1882. Transfers of shares in the company law are held to be
imperative.
In these cases the language is held to be mandatory, because by
holding it directory it would be defeating the very object of the
provisions.
Provisions of the constitution & Municipal Act & the manner in which
the contracts & transfer shall be executed have been held to be
mandatory.

STATUTES CONFERRING POWER: This statute which confers power

often contains certain express conditions there are also implied
conditions for exercise of the power.
If the express or implied conditions are mandatory, excise 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 suits.
In Haridwara Singh V/S Begum Sumbarui(AIR 1972 SC 1242)
An express grants of statutory power carries with it necessary
implication the authority to use all reasonable means to make such
grants effective.
Eg. When an Act of parliament gives to the judge the jurisdiction over
an offence, it impliedly gives him when a power is conferred on a
particular body or person to institute legal proceeding for
enforcement of an Act which confers such powers, legal proceedings
can only be instituted in the manner prescribed by the act & not
otherwise.
In Ballabhdas Agarwala V/S JC Chakravarthy (AIR 1960 SC 1242)
Statutory power must be exercised only by that That on whom it is
conferred unless the statute permits for express or implied
delegation.

E.g. Power conferred by the University Act. Where a university Act

confers the power to dismiss an officer of the executive council & to
delegate the exercise of power to some other person with the
approval of the Chancellor or the Vice Chancellor, cannot exercise the
power. It was further held that the vice
Chancellors Act in dismissing an officer without valid delegation could
not also be ratified by the executive council.
The person whom the power is conferred must exercise in good faith
for furtherance of object of the statute. He must not proceed upon a
misco instruction of statutes; he must take into account matters
relevant for excise of the power.
When a statute confers power upon public official to destroy defeat
or prejudice a person’s right Interest or legitimate exceptions, the
rules of natural justice regulate the exercise of that power, unless they
are excluded by plain words or necessary intendment.

Union of India V/S Tulsiram (AIR1985 SC 1416), it has been held that
liberal interpretation of Art 14 & 21 of constitution brings in the
requirements of natural justice to administer action against a person.
It has become an implied principle of law that any order having civil
consequences should be passed only after following the principles of
natural justice.
Art 14, is said to be constitutional guardian of principles of natural
justice because Art 14 requires the state & every public authority or
instrumentality of the state must act reasonably in public interest &
fairly.

Manner of expression:

The manner of expressing an order is also prescribed along with the

power to make order. This is done with the view to give prescribed
manner of expression of evidentiary value. Non compliance with the
prescribed manner of expression does not invalidate the order if the
same is proved otherwise to have been validly made.

EJUSDEM GENERIS
Ejusdem generis, means of the same kind or nature.
This rule provides that where the words of specific meaning are
followed by general words, the general words will be construed as
being limited to persons or things of the same general kind or class as
those enumerated by specific words Eg. Where law lists specific
classes of persons or things & then refers them to general, the general
statements only apply to the same kind of persons or things
specifically listed.
Regarding the application of the rule, it is said that the general
expression has to be read to comprehend things of the same kind as
those referred to by the proceeding specific things construing a genus,
unless from the language of the statute it can be inferred that the
general words were not intended to be so limited.
The rule applies in the following situation:
1. When the statute contains an enumeration of specific words
2. The subjects of enumeration constitute a class or category.
3. The class or category is not exhausted by the enumeration.
4. The general terms follow the enumeration &
5. There is no indication of a legislative intent.
This rule has to be applied with care & caution. This is not an
inviolable rule of law but it is a permissible inference, in the absence
of any indication to the contrary.
The applicability of this rule can be seen
In Kerala Cooperative Consumer Federation Ltd V/S CIT (1988 170
ITR 455 Ker)
In Siddeshwari Cotton Mills (P) Ltd V/S Union Of India(AIR 1989 SC
1019)

Reddendo Singula Singulis:

Where there are general words of description, following an
enumeration of a particular thing, such general words are to be
construed distributive, this rule states if general words will be applied
to some things & not others, The general words are to be applied to
those things to which they will & not to those to which they will not
apply .

This rule is applied in construction of provision of the article 304 of the

constitution which reads; provided that no bill or amendment for the
purpose of clause (b) shall be introduced or moved in the legislature
of a state without the previous sanction of the president. Here the SC
held that the word ‘introduced’ referred to ‘Bill’ & the word moved to
‘Amendment’.

Expressio Unius Est Exclusio Alterius:

The expressio literally means ‘the express mention of one thing

excludes other’,

According to this rule, where one or more things are specifically

included in some list & others have been excluded it automatically
means that all others have been excluded. However sometimes a list
in a statute is illustrative not exclusionary. This is usually indicated by
a word such as ‘includes’ or ‘such as’. This maxim has wide
application& has been used by courts to interpret constitution,
treaties, wills & contracts as well as other statutes.

Courts have held that this maxim should be disregarded where an

expanded interpretation of statute will lead to beneficial results or will
serve the purpose for which the statute was enacted.
This rule assumes that the legislature intentionally specified one set
of criteria as opposed to another.
Therefore issue to be decided addresses an item not specifically
named in the statute; it must be assumed that the statute does not
apply.
The SC in interpretation of sec9 (2) of the Central Sales Act 1956,
In Khemka & co V/S St of Maharashtra (AIR 1975 SC 1549) the 1st part
of the provision vested powers in the state officials to act on behalf of
the Central Govt for assessing, re-assessing & enforcing the payment
of tax, Latter part of the provision provided that this will be as if the
tax or penalty under the general sales tax law of state . The SC held
that the penalty provisions in the central & the state legislations were
special provisions in each act & were not part of the general sales tax
law of the central or the state. Therefore this principle was made
applicable.
This maxim is like a valuable servant but as well a dangerous master.
It may be employed to denote the intention of the legislature, but it
would not be safe to regard it as an obligatory rule of law.
Where legislature expressly made certain provisions of one statute
applicable to another statute, it was held to be deemed that all the
other provisions of former statute with respect to the latter are
intentionally excluded from their applicability.

Generalia Specialibus Non Derogant: the two co-related maxims,

generalia Specialibus non Derogant & Generalia Specialibus derogant,
the first maxim means, general things do not derogate from special
things while the second maxim means, the special things derogate
from the general things.
According to this principle, a general act is not construed as repealing
a particular or special act.
This maxim was made applicable as early as 1884

In the case of Mary Seward V/S The owner of the Vera Cruz.
In this case the question was whether sec 7 of the Admilarity court Act
of 1861 also gave jurisdiction for claim for loss of life which otherwise
would have come under the Fatal Accidents Act. It was held that the
admiralty court had no such jurisdiction.

In JK Cotton Spinning & Weaving Mills Co Ltd V/S State of UP (AIR 1961
SC 1170)
The SC observed that the rule general provision should yield to specific
provisions is not an arbitrary principle made by the lawyers & judges
but springs from the common understanding of Men & women that
when the same person gives two directions one covering large
number of matters in general & other to only some of them his
intention is that these letter direction should prevail as regards These
while as regards all the rest earlier directions should have effect.
In case of S Prakash V/S KM Kurian(AIR 1999 Sc 2094) the SC held that
if the language of the provision is clear & unqualified, it prevails over
the special provision, & special provision must give way to general
provision if legislative intent was to establish a rule of universal
application.
In this case, there was no repugnancy b/w general provision & special
provision because the amendment brought in by the general provision
only filled up the lacuna in special provision regarding determination
of vacancies.

Presumption of Constitutionality:
There is a presumption of constitutionality of the rule, this applies
when two meanings of the provision are possible & one is in favor of
its validity will be accepted. The court ought not to interpret the
statutory provision unless compelled by they language, in such a
manner as would involve its unconstitutionality since the legislature
or the rule making authority is presumed to enact a law which does
not contravene or violate the constitutional provision.

There is a presumption in favor of constitutionality of a legislation of

statutory rule is unless ex facie, it violates the fundamental rights
guaranteed under Part III of the constitution. If the provision of a law
or a rule is construed in such a way as would make it consistent with
the constitution & other interpretation would render the provision or
the rule unconstitutional, the court would lean in favor of former
construction. Presumption in favor of constitutionality of statutes
prevails & only in the event of gross violation of constitutional
sanction would the law courts be within their jurisdiction to declare
the legislative enactment to be an invalid piece of legislation & not
otherwise.

The presumption of law is that an act is valid & legislature does not
intent to enact a law which is ultra virus the constitution.
Presumption of constitutionality is for the purpose of shifting onus of
proof on the person who challenges the same.
Presumption ceases to operate on the statute if it shows clearly
unconstitutional.

OPERATION OF STATUTES
Law comes into force from the date from which it receives presidents
ascent. Similarly a state law comes into force when the governor gives
his ascent.
The parliament in respect of central law & the state legislature in
respect of state law may appoint a future date from which
effectuation of the law is intended. Such a date is expressly mentioned
in the Act itself.
Giving effect to the statute is called operation of statutes; the day
from which the statute becomes operative is called commencement
of statute. Where specific date is provided in a statute itself it
commences from that date. But in absence of any such date the law
commences from the date of receiving the ascend of the president or
governor as the case may be.
The law sets into motion only after the date of commencement. Prior
to that the law has no force.

PROSPECTIVE OPERATIONS:
Prospective means in future, hence prospective operations means
from a future date.
A person doing an act prior to commencement, a law which declares
that the act as an offence cannot be prosecuted for the same.
In keshavan V/S State of Bombay (AIR 1951 SC 128)
It was held here that it is a cardinal rule of construction that every
statute is primary facie prospective unless expressly or by necessary
implication made retrospective.
In sangam spinners V/S Regional Fund Commissioner (2008 1 SCC 391)

RETROSPECTIVE OPERATIONS:
This means from past date, hence retrospective operations means
from a past date.
The result of retrospective operations is that the retrospective law is
legitimately applied to pending proceedings also.

In Jay Makhakali Rolling Mills V/S Union of India (2007, 12, SCC 198)
the Apex court describes what is meant by retrospective. The court
observed that retrospective means looking backwards contemplating
what is past, having reference to the statute or things existing before
the statute or a thing before that statute in question.

Retrospective law means a law which looks backwards or

contemplates the past which is made to effect the acts or facts
occurring or rights occurring before it comes into force. Retrospective
statute means a statute which caters new obligation or transaction or
considerations or destroys or impairs vested rights.

PRESUMPTION AGAINST RETROSPECTIVITY: There is a presumption

against the retrospectivity, effect of a statute is not rigid or inflexible
rule but is one to be always in the light of the language of the statute
& subject matter with which the statute is dealing.
A statute is not retrospective which takes away or impairs any vested
right acquired under existing laws or creates a new obligation or
impose new disability in respect of transactions or considerations
already passed.

Presumptions against to retrospective construction has no application

to enactment which deals with procedural laws.
If statute is a declatory act the presumption against retrospectively is
inapplicable.
The rule of retrospective operation is a presumption only & as such it
may be overcome not only by express words in the act but also by
circumstances sufficiently strong to displace it. It is the cardinal
principle of construction that every statute or a particular new section
is prospective unless it is manifest by express words or by necessary
implications indicating retrospective operation.
Vested right acquired cannot be taken away by giving retrospective
operations to a new statute.
New obligation cannot be created from the back date. New duty
cannot be imposed on an earlier date. Hence statute which takes away
or impairs vested rights acquired under existing laws or creates new
obligations or imposes a new duty or attaches a new disability in
respect of transactions already passed cannot be given retrospective
operation unless an intention to give it retrospective effect is
expressively provided.

Salient features of the rule of presumption against retrospective effect

can be summed up as:
1. This rule is applied in such cases where, if the law is operated
retrospectively, it takes away or prejudicially affects or impairs
any vested right acquired under the existing law.
2. There is a strong presumption against applying a new act to
pending action when language of the statute is not clear.
3. If new act affects procedure only, prima facie it applies to all
actions, pending as well as future.

4. Statutes of limitation are considered to be procedural & hence

they apply to cause of action arose before enactment of rule.

5. Statutes regulating succession are not applicable to succession

which are already opened.

6. Fiscal statutes are considered to be only prospective in respect

of charging section. However the procedural part of the fiscal
statute is considered to be retrospective in operation.

7. Penal statutes creating new offences or offences are presumed

to be protective in nature.
 8. Remedial statute are considered to be retrospective.

OPERATION OF VARIOUS KINDS OF STATUTES:

It is well settled that a law which impairs the vested rights creates new
obligations, imposes new duties or attaches new disability to give
retrospective effect to any such statutes, the intention thereof must
be declared in clear & specific terms.

The retrospective operation of various kinds:

1. Statutes dealing with substantive rights are presumed to be
perspective.
Statutes dealing with substantive rights are deemed to be prospective
statutes only. They cannot be deemed to be presumed as
retrospective statutes.
The rule of retrospective statute is applicable where the object of the
statute is to effect vested rights,
Impose new burden or impair the existing obligations.

The State of Punjab V/S Bhajan Kaur (2008, 12 SCC 122) here It was
held substantive law was held to be prospective. It is one of the facet
of the rule of law sec 92-A of the Motor Vehicle Act 1939 created a
right & a liability on the owner of the vehicle. Such is a statutory
liability not a tortuous liability.
Where a right is created by the enactment in absence of a closer
provision in the statute it is not to be applied retrospective.

2. Statutes dealing with procedures are presumed to be retrospective.

Those statutes which modifies the existing procedures or provide for
new procedure are given retrospective effect. If new act effects the
matter of procedure only then it applies to all actions pending as well.

Eg. A decree is passed by the Indian Courts against a foreigner at a

foreign country is a matter of procedure, usually such decree is non-
executable. But it becomes executable if that foreign country becomes
a part of India & Indian CPC is extended to that place.
In Sukdev Singh V/S State of Haryana (2013, 2 SCC 212) here the court
held that retrospective effect even to procedural provision in criminal
statutes cannot be given unless even after strict const

Legislative intent to give retrospective effect is beyond any ambiguity.

Merely the statute is procedural it cannot be operated retrospectively.
If operation of procedural law like Limitation Act, on the past cause of
action leads to revival or extinguishment of a right of a suit such
cannot be operated retrospectively.
3. Statutes governing succession are not retrospective in operation:
Statutes regulating succession are not applicable to succession which
had already opened.
In Eramma V/S Veerupana(AIR 1966, SC 1879)
Here it was contained in the provision of sec 8 of the Hindu succession
Act 1956, which lays down that the property of the male Hindu dying
intestate shall devolve according to
The provisions of the act, is inapplicable to a case where succession is
opened before the act.

4. Statutes regulating transfers & contracts are not retrospectively

operated. Transfers made prior to the enactment of such act would
remain unaffected. They are not declared void even when new
formalities Prescribed were not observed. The reason is that the
formalities have been prescribed by the act which was effectuated
after completion of transfer.Eg. A transfer made in accordance with
the existing law is a valid transfer. If a subsequent enactment prohibits
the transfer of a same nature, the effect is that no such transfer can
take place after commencement of prohibitory statute.
But the earlier valid transfer cannot be invalidated by subsequent
prohibition.
5. Statutes prescribing limitations are prospective but may have
retrospective operation for certain matters:
Certain statutes prescribed period of limitation for initiating legal
action such statute do not create any right.
The object of these statutes is to prescribe limitation. After the period
of limitation is expired the right to sue comes to an end.
A subsequent limitation act which provides longer duration of
limitation cannot be applied to cases which are time barred.
Once a particular action becomes barred under earlier legislation
recourse to the later act
Cannot be taken to revive the extinguishing right. The larger period of
limitation provided by the later act is of no help.
Statutes providing limitations are regarded as procedural law.
6. Fiscal statutes are perspective in respect of charging provisions but
are retrospective in respect of the provisions dealing with procedure.
Fiscal statutes are presumed to be perspective only & not
retrospective. However this rule applies only to charging sections &
other substantive provision.
Charging statutes are those sections by which a charge is created.
This rule has no application in respect of procedural part of taxing act
is retrospective & applies to pending proceedings also.
CIT Bombay V/S Scindia Steam Navigation Co Ltd (AIR 1961 SC 1633)it
was held that as the income tax liability is computed according to law
in force in the beginning of assessment year, any change in law
affecting tax liability after that date does not apply to assesment made
for that year unless specifically made retrospective.
7. Penal statutes creating new offences or increasing offences are
prospective only.
In Mururam V/S Union Of India (AIR 1980 2147) in this case the
insertion of sec 433-A by the Crpc amendment act of 1978. This
section requires that where a sentence of life imprisonment is
imposed a conviction of a person for an offence for which death is one
of the punishment, such Person shall not be realized from prison
unless it has served at least 14 years of imprisonment . This provision
has been held to be applicable to sentence imposed after coming into
force of the section & not to a person convicted before its
commencement & coming into force.
8. Remedial statutes are not necessarily retrospective, a posterior
disqualification Under a statute resulting from an anterior misconduct
does not make the statute retrospective . Similarly if a prospective
benefit flows from a statute depends on an earlier facts it does not
mean that the law is retrospective.

In Rafiqunissa V/S Lal Bahadur Chhetri (AIR 1964 Sc 1511) a tenant

who has actually built a permanent structure on the land of tenancy
was protected from eviction. It was held that such protection covers
even such cases where structure was built by tenant before coming
into force of the act.

In Barber V/S Pigden (1937 1 All, ER 115 PC) a married women &
Tortfeasors) Act 1935 was interpreted, this section provided, the
husband of a married women shall not, by reason only of his being her
husband, be liable in respect of any tort Committed by her whether
or after the marriage.

Question was whether act applied to a tort committed prior to act in

respect of which proceedings had not commenced when act came into
operation. It was held that the act was applicable to such tort. Statutes
providing for new remedies for enforcement of existing of rights will
apply to future as well as past cause of action . The reason is that the
statutes are considered to be procedural since they do not effect the
existing rights.
The remedial statutes are liberally construed. Therefore the rule of
presumption against retrospectively is not strictly applied to these
statutes.
9. Statutes dealing with appeals are prospective only, an appeal may
be defined as a process of moving a superior court against the orders
passed by an inferior court. Right to prefer appeal is considered to be
substantive right.
Some statutes or their certain provisions provide for an appeal against
the order passed by a court. Since right to appeal is a vested right any
statute effecting it cannot be retrospectively operated.
 UNIT IV

STATUTES EFFECTING STATE

The rule of the general law: The rule of common law is studied under
2 headings;

1. General principles.
2. Extent of rule.

General Principles:

According to Plowden, ‘it is to be intended that when the King gives

his ascent, he does not prejudice himself for his liberty & his privilege,
but he assent that it be a law among his subjects’.
The rule of English law is that no statute binds the crown unless the
crown is named therein either expressly or by necessary implication,
because a statute is presumed to be enacted for the subjects & not for
kings.
There is one exception to the rule which is that the crown may be
bound by necessary Implication, if it is gathered from the terms of the
statute, that it was the intention of the legislature that the Crown
should be bound, then the result is the same as if the crown has been
expressly been named . It is therefore inferred that the crown by
assenting to the law, agreed to be bond by the provision.

In the words of lord Kenth: the crown is not bound by statutory

provision unless it can somehow be gathered from the terms of the
relevant act, an intention to that effect. The crown can be bound Only
by express words or necessary implications.
According to Bacon, it is stated that where an act of parliament is
made for the public good, the advance of the religion & justice & to
prevent injury & wrong, the King shall be bond by such act though not
particularly named.
The safest rule to decide whether a given statute binds the Crown by
necessary implication, which will be valid in all cases, is to read the
statute as a whole & to see whether it is manifests from the very terms
of the statute that it was the intention of the legislature that the crown
should be bound.

The House of Lord in Advocate V/S Dambarton District Council (1990

ALL 1 ER pg 9,10) accepted the decision of the privy council given in
Bombay Provinces case(1947) . Here in this case the Contractors were
employed by the Ministry of Defense with the approval of the relevant
crown agency. While carrying on certain work on the crown land
adjourning, Highway the contractors encroached upon a part of the
highway . The local Highway authority & the local planning authority
by issuing notices claimed that the encroachment on the highway &
the work undertaken by them were Contrary to the provisions of the
Road(Scotland)Act 1947 & the Town & country planning(Scotland)Act
1972. It was held by the House of Lords that the Crown was not bound
by an Act unless named therein expressly or by necessary implications.

Extent of the rule: the protection of the rule of presumption that the
crown is not bound by statutes extends to three classes of persons.

1. The sovereign personality.

2. His servants or agents acting as such &

3. Persons who thought not strictly servants or agents are

considered to be in consimili casu.

Persons in consimili casu with servants of the crown are persons who
thought independent of the crown perform, exclusively or to a limited
degree the regal govt functions such as the administration of justice
the carrying on of wars the making of the treaties of peace the
representation of crimes etc. Clause (b) not only officers of the state
with ministerial status, but all subordinate officials as also servants
holding statutory offices.

In Mersey Docks & Harbour Board V/S Cameron (1861)

In this case, the Board was a non-profit earning statutory corporation

not under the control of the crown or a minister & whose revenue was
not crowns revenues, claimed immunity from the immunity from local
rates & the question arose before the house of lords whether such
corporation could claim crown privileges were not accorded to the
corporation.

Rule in India:

In Bombay Province V/S Bombay Municipal Corporation (AIR 1947 PC

34) the common law rule that the crown was not bound by a statute
unless named expressly or by necessary implication was applied by the
privy council before the constitution was adopted. But it continued to
apply to India even after the constitution was enacted in the form that
the state is not bound by a statute unless it is so provided in express
terms or by necessary implications.

However in State of West Bengal V/S Corporation of Calcutta (AIR

1967 SC 997) this view was over ruled. In this case it was held that
common rule of law was not accepted prior to the constitution
thought in India & even in the presidency towns it was not regarded
as an inflexible rule. It was further held that the rule of common law
prerogative of the crown had no relevance to a democratic republic
was inconsistence with the rule of law based on the doctrine of Equity
enshrined in the constitution. A s a result of this decision, the rule that
applies in India is that, a general Act applies to citizens as well as to
state unless it expressly or by necessary implication exempts the state
from its operations. In cases where an Act does not apply to the Govt,
an agency or instrumentality of the govt which is not the department
of the govt it will be bound by the Act especially when it is welfare
legislation.

Therefore in Hindustan Steel Works Constructions Ltd V/S State of

Kerala(AIR 1997 SC 2275) the Hindustan Steel Works Construction Ltd,
a company fully owned by the Central Govt

Was held to be bound by Kerala Construction Workers Welfare Funds

Act 1939.

Statutes Affecting Jurisdiction Of The Courts

This can be studied into 3 headings,

1. Exclusion must be explicitly expressed or clearly implied.

2. Three classes of cases.

3. Cases of breach of statutory duty.

4. Omission to exercise statutory power.

1. Exclusion must be explicitly expressed or clearly implied :

There is a presumption that civil courts have jurisdiction to decide all
questions of civil in nature. Hence the exclusion of jurisdiction of civil
courts is not to be readily inferred & such exclusions must be clearly
expressed or implied. The provisions excluding jurisdiction of civil
courts & provisions conferring jurisdiction on authorities other than
civil courts are strictly construed.

The existence of jurisdiction in a civil court to decide question of civil

nature is the general rule & exclusion to it is an exception to this rule.
Therefore the burden of proof to show that jurisdiction is excluded in
any particular case is on the party who raises such contention. Civil
courts are courts of general jurisdiction, & people have the right
unless expressly or impliedly barred, to insist for free access to the
court of general jurisdiction of the state.

The Criminal courts are also courts of general jurisdiction & exclusion
of jurisdiction of ordinary criminal courts can be brought about by
setting up courts of limited jurisdiction in respect of limited field. But
only if the vesting & the exercise of that limited jurisdiction is clear &
operative & there is an adequate machinery for the exercise of limited
jurisdiction.
It has been held that like other rules of construction, the rule against
exclusion of jurisdiction of courts is attracted only where two or more
reasonably possible construction are open in the language of the
statute & not where the legislative intent is plain & the manifesto to
oust(reject) the jurisdiction.

In Akbar Khan Alam KhanV/S Union of India (AIR 1962 SC 70) The
citizenship Act 1955 sec9 (2) states that if any question arises as to
whether, when or how any persons has acquired the citizenship of
another country it Shall be determined by such other authority as may
be prescribed . Rule 30 of the Rules which are framed under the act
prescribes that such a question shall be determined by the central
govt. the plaintiff shall institute a suit in the civil court claiming that
they are Indian citizens on Jan 26th 1950, & although they went to
Pakistan in 1953 on the temporary visit but they had not acquired
Pakistani citizenship & they continue to be Indian citizens.
It was contended by the state that the plaintiff had never been Indian
Citizens & that they had acquired Pakistani Citizenship voluntarily.
However the suit was dismissed on being barred by sec9 (2) of the
citizenship act.

The SC held that the question whether plaintiff was an Indian Citizen
on Jan26, 1950 & could be decided by the civil court & was not barred
by sec9 (2) of the act although they had acquired foreign citizenship
thereafter could only be Decided by the Central Govt. Therefore the
Sc directed that the first question should be decided by the civil court
& if it was found that the plaintiffs were never Indian citizens, the suits
should be dismissed. Whereas if they were found to be Indian Citizens
on 26th of Jan 1950, then the question regarding their foreign
citizenship shall be decided by the central govt.

Three classes of cases, there are 3 classes of cases in which liability

might be established, founded upon statute.
One is where there was a liability existing as common law, & that
liability is affirmed by statute which gives a special & peculiar from of
remedy different from the remedy different from remedy from which
existed at common law.

The second class of cases is where the statute gives the right to sue
merely, provides no particular form of remedy the party can only
proceed by the action of common law.
The third class of cases where a liability not existing at common law is
created by a statute which at the same time gives a special & particular
remedy for enforcing it. A statute falling in the second classes of cases,
according to Judge Williams, no special remedy & whether it creates
new rights & liabilities or regulates the already existing ones, the
normal remedy through the medium of civil courts, which are courts
of general jurisdiction remains always open.
For the first & the third of three classes of cases, it has to be asretained
whether the statute in a statute falling in the second classes of cases,
according to Judge Williams, no special remedy & whether it creates
new rights & liabilities or regulates the already existing ones, the
normal remedy through the medium of civil courts, which are courts
of general jurisdiction remains always open.
For the first & the third of three classes of cases, it has to be asretained
whether the statute in Question deals with & regulates an already
existing right or liability or whether it creates a new right or liability
which has no existence apart from the statute. If the statute is of the
first category, the special remedy provided therein subject to any
provision for the exclusion of ordinary remedy, which will be
construed as an alternative remedy.
If the statute is of the third category, the remedy will be construed as
exclusive even though the statute make no express provision for
exclusion of ordinary remedy . Hence the mere fact that a statute
provides for certain remedies does not by itself excludes the
jurisdiction of civil court.
However, where a new right or liability is created by a statute which
gives a special remedy for enforcing it, the ordinary remedy of
approaching the civil court is impliedly excluded. eg. The matters
under ID Act 1947. This act creates new rights & obligations & provides
machinery for adjudication of disputes pertaining to them.
In Premier Autmobile’s case, it was held by the SC that if an Industrial
dispute relates to the enforcement of right or an obligation create
under the act, then the only remedy available to the suitor is to get
adjudication under the act.

In Rohtas Industries Ltd V/S Rohtas Industries Staff Union. In this case
it was held that for wrongs created by the act, the only remedy is what
is provided in the act. Therefore in case of strike, which is illegal the
employer can have the workers punished u/sec26 of the act, but he
has no right to claim compensation for the loss of business caused by
the illegal strike. Another act which creates new rights & provides for
detailed machinery for enforcing these rights is the payment of
Gratuity Act 1972. It was held in a case that the act is a complete code
& proceeding for recovery of gratuity due under the act. Can be taken
only under the act & not under any general provision of law such as
sec 33(C)(recovery of money due from the employer by the workmen)
of ID Act 1947.

In Akbar Khan V/S Union of India (AIR 1962 SC 70) here the SC said that
it is not correct to say that the legislature takes away civil courts
jurisdiction only when a new right is created by the statute & a tribunal
is set up for determination of that right, for by the use of appropriate
word jurisdiction may be excluded in other cases also.

In RadhaKrishna V/S Ludhiana Municipality (AIR 1963 SC 1547) this

case it was found construction of statutes imposing Tax, under the
Punjab Municipal Act 1911 which was construed, regarding the rate of
thermal tax payable on a particular commodity which depends upon
the determination of character of the commodity arose. It was held
here that the order of the Municipal committee imposing the tax could
not be challenged in the civil court.

There is no universal rule by reference to which the question of

maintainability of a civil action can be infallible (not capable of doing
wrong) according to Lord Tenter Ten, ‘when an Act creates an
obligation & enforces the performance in a specified manner, it can
be taken to be general rule that performance cannot be enforced in
any other manner. If an obligation is created, but no mode of
enforcing its performance is ordained the common law may, in
general find a mode suited to the particular nature of cases’.

In Pasmore V/S Oswaldtwistle Urban District Council, the House of

Lords approved the rule stated by stated by Lord Tenterden. In this
case the question was as to the maintainability of an action for
mandamus for enforcing the statutory duty of local authority under
sec 15 of the public Health Act 1875, to provide sufficient number of
sewers for draining their district. Sec 299 of the Act provided a remedy
for enforcing the statutory Duty by a complaint to the local govt board
&, therefore it was held that there was no remedy outside the act .
Lord Halsbury, observed, that the principle that where a specific
remedy is given it thereby deprives the person who insists upon a
remedy of any other form of remedy than that given by the statute, is
one which is very familiar & which runs through the law.

The SC accepted this principle in Premier Automobiles Ltd, case.

When a statute creates the duty provides for the penalty of fine or
imprisonment for breach of duty, it is regarded as only manner of
enforcing the duty.

In Tenchye Choo V/S Chang Kew Moi (1970 I All ER 266 PC) whether a
breach of rule 94 of the
Motor Vehicle Rules 1959 give rise to a cause of action in favor of an
injured person. The rule has provided that the conditions of any Motor
Vehicle used on the road & all its parts & accessories shall at all times
be such that no danger is caused to any person on vehicle or on a road.
Under the Road Traffic Ordinance Rules including rules 94 were made
providing for certain penalties for non observance of the Rules
without lawful excuse. A motor taxi became involved in an accident
due to some latent defects & as a result of which certain persons were
injured. No negligence of the driver or the owner was found & then
the question arose whether the injured persons could claim damages
for breach of statutory duty was imposed by rule 94. It was held that
the rules did not impose any duty in Favor of any individuals who had
no right of action.

When a particular provision apparently protected certain individuals

& for its breach no penalty was provided it does not necessarily follow
that an action for breach of statutory duty will lie & the question will
be of the intention of the legislature.

In Hague V/S Dy Governor of Parkhurst (1997 3 ALL ER 733)

In this case it was observed that when a prisoner was segregated in

violation of the prison Rules made under the Prisons Act 1952, he had
no cause of action for claiming damages for breach of statutory duty.

THE IMPORTANCE OF DISCOVERING PARLIAMENT'S INTENTION

If a person suffers damage due to the breach of a statutory duty he
may be able to bring an action for breach of statutory duty simpliciter.
The careless performance of a statutory duty will not give rise to a
cause of action unless there exists a right of action for breach of
statutory duty simpliciter or a common law duty of care in negligence.
Some statutes expressly create a right of action for breach of their
terms whereas others expressly exclude a civil action for breach of
statutory duty.
In most cases however, a statute will not indicate whether
contravention will be actionable or not. In such cases where the
statute is silent the courts attempt to discover the intention of
Parliament using the rules of statutory interpretation and certain
presumptions. Breach of a duty imposed on some person or body by
a statute. The person or body in breach of the statutory duty is liable
to any criminal penalty imposed by the statute, but may also be liable
to pay damages to the person injured by the breach if he belongs to
the class for whose protection the statute was passed. Not all
statutory duties give rise to civil actions for breach. If the statute does
not deal with the matter expressly, the courts must decide whether or
not Parliament intended to confer civil remedies.

OMISSION TO EXERCISE STATUTORY POWER:

Subject to the exceptional cases the normal rule is that an omission

by public authority to exercise a statutory power conferred for the
benefit of the public does not give rise to breach of duty sounding in
damage.
1. Eg. In Stovin V/S Wise (1996 3, ALL ER 801 ), in this case Motor
Vehicle accident took place at a road junction partly because the
view was obstructed by Bank adjacent to the road. Although
U/sec 41 & 79 of High Way Act 1980 the local authority had
statutory power to remove the Earth Bank but it took no steps
in that directions. Here it was held by the House of Lords that
there are no common Law duty on the authority to exercise the
 power & omission to exercise the power, if it could be done at
all were, That in the circumstances it would have been irrational
for the authority not to have exercised the power, so in effect
there was a public law duty to act &

2. That there was an exceptional grounds to hold that the policy of

the statute conferred loss if the power was not exercised.

These precautions were accepted & were also found to be

satisfied by the SC,

In Union Of India V/S United India Insurance Co Ltd (AIR 1998

SC 640 pg 654)

In this case an express train had collided with a passenger bus at an

unmannered level crossing & the Union of India owing the railway was
held guilty of negligence being in breach of its common law duty for
failing to convert the unmanned level of crossing into a manned level
crossing having regards to the volume of traffic & providing proper
sign boards for warning the road traffic. The Union Of India was also
held liable for omission to exercise the power under sec 13 of the
Railway Act which provides that the Central Govt may requires a
Railway Act which provides the Central Govt, may require a railway
administration to effect fences, gates etc.

EXTENT OF EXCLUSION:

1. Construction of Exclusionary clauses.

2. Cases of Nullity.
3. Rule of conclusive evidence.
4. Exclusion of Jurisdiction of SC
Construction of Exclusionary cases:
The absence of the provision to enable the authority or tribunal for
holding an inquiry on a particular question is indicative that the
jurisdiction of civil courts on that question is not excluded. It has been
held that the very provision setting up hierarchy of the judicial
tribunals for the determination of a question is sufficient in most cases
for inferring that the jurisdiction of the civil courts to try the same
matter is barred.
It has been held in a case that when jurisdiction of the civil courts on
a particular matter is excluded by transferring that jurisdiction from
civil courts to tribunals or authorities, it is presumed that such
authorities or tribunals can draw upon that principles of procedure of
CPC though not made applicable to ensure fair procedure & just
decision unless such principles are inconsistent with the provisions of
the Act constituting them.
In cases where jurisdiction is excluded by use of prima facie
comprehensive language, it is open to the civil courts, which are the
courts of general constructions to decide whether a court or tribunal
or authority having limited jurisdiction has acted in excess of its
statutory powers. On matters on which the jurisdiction of the civil
courts is excluded, neither consent of the parties nor an order of the
special tribunal which has jurisdiction to decide those Matters can
confer jurisdiction on the civil courts.

In Gaekwar Sarkar of Bombay V/s Gandhi Kachar Bai(1903 ILR 27

Bombay) sec 10 of the Indian Railways was considered, a person
brought a suit claiming damages for injury by negligence of railway
administration in construction of certain work . It was contended that
the suit was barred u/sec10 of Railway Act.
This contention was negatived on the ground that the provision was
applicable only when the railway administration had not exceeded or
abused its powers, & was not guilty of negligence.

In Bharat Kalabandar V/S Dhamangaon Municipality (AIR 1960 SC 249)

in a suit to claim refund of tax on professions, trades, & callings levied
& collected by the Municipality in Excess of constitutional limits
prescribed by sec 142-A of the Govt of India Act 1935, & Art 276 of
Indian constitution was held to be maintainable . The suit did not
relate to anything done or purport to be done under the Act & the
special procedure of notice & limitation prescribed by the Act also did
not apply there. It was held that the suit was not barred by the
statutory provision in the Act Which was to the effect that no
objection shall be taken to any valuation assessment or levy in any
other manner or by any other authority than as provided in this act.

When in case of non compliance with fundamental provisions of the

Act or fundamental principles of the judicial procedure which makes
the proceedings before the tribunal or authority illegal & void,
Principles are subordinated to the actual words used by the
legislature.

Art 356, of the constitution provides that if the president is satisfied

that a situation has arisen in which the Govt of the State cannot be
carried out in accordance with the provision of the constitution, the
president may by the proclamation,

A civil suit to challenge the order or decisions passed in such

proceedings is not barred. Special provisions curtailing the normal
period of limitation for suit or prosecution have also strictly construed.
The extent of exclusion is really a question of construction of each
particular statute. In the manner of construction the applicable
general

1. Assume to himself the functions of Govt of the state.

2. Declare that the power of the state Legislature shall be exercised
by the parliament.
3. Make such incidental or consequtional provisions as may be
necessary to give effect to the objects of the parliament as may
be necessary to give effect to the object of the proclamation.
Before the 44th Amendment Act the Article further provides
satisfaction of the president shall be final & conclusive & shall not be
questioned in any court of law.
In State of Rajasthan V/S Union of India( AIR 1977 Sc 1361) here the
SC held that if the Satisfaction of president is based on wholly
extraneous grounds which have no nexus with the action taken the
proclamation can be challenged in the Court of law on the grounds
that the president acted without the required satisfaction in issuing
the proclamation, for satisfaction based on wholly irrelevancy grounds
amounts to no satisfaction . If the grounds are some which bears same
relevancy or nexus to the action taken the sufficiency of satisfaction
cannot be challenged in the court of law.

Cases of Nullity:
The jurisdiction of a the tribunal is determinable at the
commencement of a proceeding & if jurisdiction is properly assumed
any order passed thereafter will be within the jurisdiction & conclusive
though it may be erroneous in fact or law. The pure theory of
jurisdiction according to which defects of jurisdiction can arise even
during or at the conclusion of the proceeding.
The courts will make a distinction b/w judicitional question of fact or
Law which are not judicitional .
If a question of fact or Law is judicitional, the tribunal though
competent to inquire into that question cannot decide it conclusively
& a wrong determination of such question results in making the final
decision in excess of jurisdiction.
The tribunal cannot by a wrong determination of jurisdiction question
the fact of law exercise a power of law which the legislature did not
confer upon it.
In Uttam Bai V/S State of UP (AIR 1962 SC 1621) it was held that an
adjudication by a tribunal of limited jurisdiction is void when;
1. Action is taken under ultra Virus statute

2. The subject matter of adjudication is beyond its competence or the

order passed is such which it has no authority to pass.
3. The adjudication is procedurally Ultra Vires being in violation of
fundamental principles of judicial procedure.
4. Jurisdiction is assumed by wrongly deciding jurisdictional question
of law & fact.

Certain points of consideration are relevant

1. An exclusionary clause using the formula, an order of the
tribunal under this act shall not be called in question in any court
ineffective to prevent the calling in question of an order of the
tribunal if the order is really not an order under the Act but a
nullity.
2. Cases of nullity may arise when there is lack of jurisdiction at the
stage of commencement of enquiry eg. When
a. Authority is assumed under an ultra vires statute .
b. Tribunal is not properly constituted.
c. The subject-matter or the parties are such over which the
tribunal has no authority to enquire &
d. There is want of essential preliminaries prescribed by the law for
commencement of the inquiry.
3. The case of nullity may also arise during the course or at the
conclusion of the inquiry. These cases are also cases of want of
jurisdiction of the word jurisdiction is understood in a very wide
sense. E.g.

1. When the tribunal has wrongly determined a jurisdictional question

of law or fact.

2. When it has failed to follow the fundamental principles of judicial

procedure.
3. When it has violated the fundamental provisions of the act.
4. When it has acted in bad faith.
5. When it grants a relief or makes an order which it has no authority
to grant or make.
6. When by misapplication of law, it has asked a wrong question.
When a tribunal is given authority to decide conclusively questions of
fact which are apparently jurisdictional, its determination cannot be
challenged on the ground that those questions have been wrongly
decided, because in reality those questions are not judicially.

In HM Trivedi V/S VVB Raju (AIR 1973 SC 2601)

It was held that the entry of a persons name in the electoral roll of a
constituency prepared under the representation of peoples Act 1951
could neither be challenged before the civil court nor before the
election tribunal on the ground that the person concerned was not
ordinary resident in that constituency. Sec 19 of the Act lays down the
conditions for registration, & one of the conditions is that of ordinary
residence.
Sec21 to 24 of the Act contains elaborate machinery to enquire into
the claims & objections as regards registration as voter & for appeal
from the decision of the registering office.
Sec30 bars the jurisdiction of the civil court to entertain or adjudicate
upon any question whether any person is or is not entitled to be
registered in an electoral roll for a constituency. It was held that the
authorities u/the act could conclusively decide the question of
ordinary residence & wrong decision of that question could not be
treated as a judicial error.
An order which violates fundamental principles of judicial procedure
or fundamental provisions of the law or principles of natural justice is
void & is in reality not an order to which the protection is given by an
exclusionary provision.

In Srinivasa V/S State of Andra Pradesh (AIR 1970 SC 71)

Rule of conclusive evidence: by enacting the rules of conclusive
evidence or conclusive proof, the legislature may make certain
matters non-justiciable
e.g. If by legislative command, proof of A, is made conclusive evidence
or conclusive proof of B, the movement existence of A is established,
the court is bound to regard the existence of A, it is established, the
court is bound to regard the Existence of B as conclusively established
& evidence A cannot be let in to show the non-existance of B after
proof of A ceases to be justifiable.

The SC has laid down the test for determination whether a rule is
irrebutable presumption is a rule of evidence or a rule of substantive
law,
In Izhar Ahmed V/S Union of India(AIR 1962 SC1052) the question was
whether rule 3 of the citizenship rule 1955 was valid or not. Sec 9(2)
to prescribe rules of evidence & rule 3 framed there.

The effect of a conclusive evidence clause is subject to at least two

qualifications,
1. A conclusive evidence clause may be held to be invalid as an
unreasonable restriction on the fundamental rights.
The insertion of statutes conferring power
May fail to shut out basic defects of jurisdiction in excise of the
power. It may also be ineffective to bar an attack on the grounds
of fraud or colorable excise of power.

Exclusion of Jurisdiction of Supreme Court:

The jurisdiction conferred by the constitution can be taken away

only by amending the constitution & not by statutory
enactment.

In Kilhota Hollohon V/S Zachilhu(AIR 1993 SC 412 ) it has been

held that even a provision in the constitution conferring finality
to the decision of an authority is not construed as completely
excluded judicial review under Article 136, 226, & 227 of the
constitution, but limited it to jurisdictional error viz, infirmities
based on violation of constitutional mandate, mala fide non-
compliance with rules of Justice & perversity. If the legislature
state that the decision or order of a court or tribunal shall be
final & conclusive the remedies available under the constitution
remains unfettered.
 The High court of India apart from exercising supervisory powers
under the constitution, exercise a similar power under the
sec115 of CPC over all subordinate courts. This power of revision
under section 115, which can be excluded by legislative
enactments, is construed as not readily excluded except by
express provision to that effect.
The appellate & rivisional jurisdiction of superior courts is not taken
are excluded simply because the subordinate court exercise a special
jurisdiction.
Where a legal right is in dispute & the ordinary courts of the courts of
the country are seized of such dispute, the court are governed by the
ordinary rules of procedure applicable thereto & an appeal lies, if
authorized by such rules , notwithstanding that the legal right claimed
arise under a special statute which
does not in terms confer a right of appeal.

UNIT V

PRINCIPLES OF LEGISLATION

INTRODUCTION

Jeremy Bentham, the celebrated architect of the concept of

utilitarianism, in his works 'The Theory of Legislation', and
'Introduction to the Principles of Morals & Legislation' not only
enunciated his moral and legal philosophy but also provided a
manual of instructions to the conscientious legislator, who in this
philosophy, finds gleanings into the Sociology of law. The subject is
full of theories and expositions of the fundamentals, touching the
concept of pleasure and pain. But there is much glamour in reading
these chapters. All the chapters centre round his concept of pleasure
and pain. In reading these chapters, you experience pain. But, surely
the pleasure will be proportionately more in the Exam, when you
come out with great success .

UTILITY
Bentham's Theory of Utility Bentham's book 'The Theory of
Legislation' is a masterpiece in the field of law. Bentham's objective
is to educate the legislators and to provide them with a sound
philosophy broad-based on the theory of Utilitarianism. Legislation is
a science and an art. It is a science as it contains certain basic
principles to do good to the community and it is an art when it
provides for the various means to achieve the good. The objective of
the legislator mast be to do public good. He may base his reasons on
general utility. Utility is the basis of Bentham's theory. The principles
of utility form the basis of his reasoning, On an analysis of the
principles of utility, we find that all our ideas, judgements and
determinations spring from certain motives: pleasure and pain. It is
the duty of the moralists and the legislators to make a great study of
these two concepts pleasure and pain. Utility is an abstract term. It
expresses some propensity or tendency of a thing to prevent some
evil or to do some good. Evil is pain or the cause of pain. Good is
pleasure or the cause of pleasure. Hence, anything which conforms
to this utility, brings happiness to the individual. The legislator must
have the objective to augment the total sum of the happiness of the
individuals that form the community. Utility is the first principle-the
first link in the chain. The legislators reasoning for making a
particular law, must be based on this principle. Utility has a
commendable logic behind it. In making law, the legislator must
calculate or compare the pleasure or the pain that it brings about.
Here pleasure & pain are used in the ordinary meaning i.e., what
everybody feels when put in a situation it is the experience of the
peasant and the prince, the unlearned and the philosopher. Utility as
a principle has its essence in the virtue and the vice. Virtue is good as
it brings pleasures, vice is bad as it brings evil. Moral good is good as
it brings pleasure to the man, Moral evil is bad as it brings pain to the
man. The legislator who believes in the theory of utility, finds, in the
process of law-making, a number of these virtues and evils, proposed
law may bring about. His objective must be to bring more virtue, He
must also distinguish pretended virtues and evils from the real
virtues and evils. These are the facets of the concept of utility and
based on this exposition Bentham develops his philosophy of
utilitarianism. His works 'the theory of legislation' and 'Introduction
to the principles of Morals and Legislation', form a manual of
instructions to a legislator. A knowledge of these, makes the
legislator appreciate the moral and legal philosophies of Bentham
and also to get an insight into the sociology of law.
Objections to Utility (a) Bentham is rightly called the Partriarch &
the chief exponent of the theory of utilitarianism. His principle of
utility, based on pleasure & pain-is applied by him, to explain the
basis of political obligations; it is the end objective of Govt. and
legislation. Man obeys the law and lives in a politically organised
society for it is the best way of securing his interests and happiness.
In fact, political life is based on the principles of utility. Hence, Laws,
the measures of the Government, political institutions and rights are
to be judged and justified according to the principles of utility. The
greatest happiness of the greatest number is the basi« of utility.
(b) Objections : Though this theory is sound and practicable some
objections have been raised.
i) Some trifling objections may be raised based on verbal difficulties.
These are not substantial, but still require careful attention.
ii) The language used to explain the result of utility is virtue. But this
is objected to on the ground that Virtue' is generally understood as
opposed to utility. According to Bentham this is not correct. Virtue is
the sacrifice of a less interest to a greater, from a doubtful to a
certain definite interest. Hence, the place of virtue is secured. If a
person calculates badly, and arrives at a wrong result, the mistake is
not that of arithmetic but the man. This is true in respect of virtue.
iii) It is commented that the principle of utility is only a revival of
epicureanism (Phiosophy of Epicure, Greek philosopher : who tought
pleasure was the chief good). This is not true, according to Bentham.
The epicurian doctrine had damaged the basis of morals & moral
values. It was a dangerous concept, and, has nothing to do with
utility.
iv) What is utility is judged by each person and hence, it is objected
that it loses its force. Bentham points out that man is a rational
being and hence, must have this faculty otherwise he would be an
idiot.
v) The next objection is put on the basis of the religious principle;
the will of God; it is universal, sovereign and decides the good and
evil. Hence, it is the only rule. Bentham answers this by saying that
the will of God is expressed by man by presuming what it would be.
That is why revelations or gospels are different. Hence, this objection
is not correct.
vi) The next objection is that when utilit y is to be followed in politics,
there would be a difference. The aim of good morals is different from
the aim of politics. Bentham answers saying that the ultimate aim of
both is securing happiness.
vii) The next objection is, that which is useful may not be just and
honest. This is not so. The collective idea is important.
viii) Lastly it may promote opprtunism in people because under a
contract a person can commit a breach for his own advantage. This is
also not true Bentham says. It is the utility of contract which is the
force to it, riot the agreement itself. Alternative : There is no
alternative to the principle of utility. What is the substitute?
Bentham asks, is it a (1) despotic principle or (2) a capricious
principle on the feelings of individuals ? Hence, utilitarism is the best
and the only solution Bentham claims.

PLEASURE AND PAIN

Pleasure & Pain:
 Bentham in enunciating his concept of utility, speaks to the
tendency of a thing to secure some good and to shield from evil. Evil
means pain ; Good means pleasure. Hence, pleasure and pain
become the starting pointthe first link in the chain-to define utility. A
comparative estimate or calculus of pains or pleasures should be
made in every process of providing orderly reasoning.

Explaining the status of these two :

pleasure & pain, he states 'Nature has placed mankind under the
governance of two sovereign masters, pleasure & pain'. Bentham's
theory is clear. We owe all our ideas, and, we refer all our decisions
to the two sovereign masters, namely, pleasure & pain. To seek
pleasure, and, to avoid pain is the sole aim of mankind. Every
moralist amd every legislator must study mainly this naked truth of
life - an unmistaken reality of life. Every aspect of utility is subject to
these two motives of human being i.e., seeking pleasure and
shunning pain. The concept of sanction (legal force) is also based on
pleasures and pains covered under the heads: Physical, Moral
Political & Religious. These four sanctions have different impacts on
individuals.
The measure of pleasure & pain is ably done by Bentham by referring
to the value of pleasure. He finds four circumstances as to :
i) its intensity
ii) its duration
iii) its certainty &
iv) its proximity He further elaborates this with reference to its
productiveness, its purity and its extent. In this process,
legislation is like arithmetic. Income is the 'good' that law
brings, pain is the outgo.
v) This is an analytical method. This theory of moral calculation
is done in making the law, to provide more good and less
pain. Hence, Bentham is correct when he claims that all
persons are subject to this concept of pleasure and pain.
The Ascetic Principle .
Ascetic means 'one who practices'. It refers to the monks who
practice penitence & devotions. They desire to reduce pleasures and
to suffer pain. This Ascetic principle is opposed to the principle of
utility. It is followed mainly by philosophers and devotees. The
philosophers raise above humanity, and despise vulgar or sexual
pleasures. In return, they get reputation and glory in society.
Bentham says that these are 'foolish people' tormented by vain
terrors. According to them, they feel that they should punish
themselves so that they may not be born again. Their objective is to
reduce pleasures and to suffer pain. Each pain brings happiness in
the other world. These persons have a horror of pleasure. Everything
that gratifies the senses is criminai, odious and therefore to be
abandoned. They approve everything that diminishes enjoyment.
They blarne everything that helps to increase enjoyment. Asceticism
has its origin in the concept that attraction of certain pleasure may
lead a person astray and force him to commit pernicious acts. The
evil here was more than the good. Hence, it was prohibited. But, the
basis of all good laws and sound morals is also to forbid such
pleasures as would bring bad effects in society. No doubt the ascetics
have taken their principle to the extreme. They have made a frontal
attack on utility. Bentham opines that the ascetics have made a
mistake. They have attacked pleasure itself, they have condemned it.
They have made it the object of a general prohibition. This principle,
has not influenced the governments. On the contrary, every Govt,
has the object to acquire more strength & prosperity. Hence,
asceticism has appealed to some individuals. Some monastic orders
have been patronised by some Govts. Beyond this, this principle has
made no impact?.

SYMPATHY AND ANTIPATHY

Principle of Sympathy & Antipathy. (Arbitrary Principle) The principle

of Sympathy and Antipathy is also called the Arbitrary principle.
According to this, certain actions are approved or disapproved,
without giving any reason for the decision, except the decision itself.
An action is good or bad according to the whims and fancies of an
individual. This is not a principle of reasoning ; it is the negation of it.
A despot belongs to this group. He speaks sovereignty; he admits no
appeal. He does not think that he should justify his decision with
reference to the good of the society. I feel that it is so. 'It is my
intimate conviction' etc. Bentham quotes a despot telling 'God
speaks by my mouth. Come and receive the Oracle of God'. The
despot's opinion triumphs, it is supreme. What results from this is
anarchy. This is the essence of Arbitrary principle. Here, the despot is
unmindful of the consequences. He furnishes no reasons. Hence, this
cannot be made the basis of and system of reasoning. As such, this is
to be discarded. Bentham says the principle of Sympathy neither
admits or rejects the theory of utility, but floats between the good
and the evil. That which is not under me is against me' is its motto.
Causes of Antipathy.
Bentham obseves that Antipathy has its tremendous influence on
morals and legislation. What factors give birth to Antipathy?
i) Repugnance of sense : something which the senses do not
agree, to accept. Animals are killed as they are brought of as
ugly.
ii) 'Wounded Pride: When a person does not accept but shows
disregard there is wounded pride. Contempt grows.
iii) Power Controlled: We find our power is limited and bounded.
This is a secret pain.
iv) Confidence in the future weakened or destroyed. Falsehood
makes us doubt and we do not rely upon such a person.
v) The desire of unanimity : Unanimity is very pleasing to us.
There would be mutual confidence and increase of pleasure.
vi) Envy: , When certain advantages are given to some, others
envy. With envy person may become an ascetic. Envy leads to
reducing the pleasures.
Influence on Government, It is the principle of sympathy and
antipathy that has exercised the greatest influence an
Governments.
 i) A Government which has wealth and commerce looks to
the society as a workshop. Men are productive machines.
It cares not for the torment of the men. It is sufficient if
they become rich. The Govt. is in different towards evils.
ii) ii) Govts. which have power and glory as means to do
public good, resort to wars, conquests, new acquisitions
etc. They do not consider that this glory has great
misfortune in the killing of hundreds of persons, and
other evils.
iii) iii) Governments which are administered well, which
protect the property and persons, where people are
happy, this is another type.

KINDS OF PLEASURES
Kinds of Pleasures : Simple pleasures & simple pains, The inventory
of man's sensations is done with great labour of analysis by
Bentham, who puts them into two:
i) Simple pleasures,
ii) Simple pains,
i) Simple pleasures :
a) Pleasure of sense: The pleasure of taste, of smell, of sight, of
hearing & of touch. In addition, the blessing of health, and the
pleasure of novelty may be included.
b) Pleasure of Riches: This is a kind of pleasure derived from
possessing certain things. It will be so lively at the moment of
acquisition.
c) Pleasure of Address: On attaining perfection in something, say in
composing music, one gets pleasure.
d) Pleasure of friendship: Developing good will and of expecting
services from them.
e) Pleasure of good Reputation : This is getting esteem & goodwill of
the people.
f) Pleasures of Power: Power which a man has, which makes others
follow through hopes or fears.
g) Pleasure of Piety: Favours of God either here or there.
h) Pleasure of Benevolence: This is what we sence, when we
contemplate the happiness of those who love us. This is the pleasure
of social affection.
i) Pleasure of Malevolence : This is the pleasure experienced by those
who do not love us.
j) Pleasure of Knowledge : This is a mental faculty to discover or
invent something.
k) Pleasure of Memory: To remember in a proper order what has
happened.
1) Pleasure of imagination : Arranging in a proper order the desires.
Principles ofLegislation
m)Pleasure of hope: Qesiring for the good in'future.
n) Pleasure of Association.: When an object is connected with some
other object, there may come a charm.
O) Pleasure of pain : That which ends or diminishes pain is itself a
source of pleasure. Complex pleasures: A combination of two or
more of the above simple pleasures produces complex pleasures.
ii) Simple pains:
a) Pains of Privation (Ennui): This is covered under 3 heads : Pain of
desire (hope of obtaining something). Pain of disappointment (hope
suddenly fails) Regret (losing something good).
b) Pains of sense: There are nine: Hunger and thirst, taste, smell,
touch hearing, sight, excess of cold or heat, diseases, fatigue of mind
or body.
c) Pains of maladdress : What one gets in fruitless efforts.
d) Pains of enmity : Hatred experienced in respect of others,
e) Pains of Bad Reputation: What a man feels when exposed to a
situation considered" bad.
f) Pains of Piety: Fear of offending God.
g) Pains of' Benevolence : When others are suffering, we experience
some pain.
h) Pains of Malevolence: When a person whom we hate gets
happiness or becomes prosperous, we get this pain. 1) Pains of
memory
 j) Pains of imagination
k) Pains of fear. . Basis and use of classification : This division, Bentham
has done after much labour, and its utility is great.The entire system
of Morals & legislation can be easily explained away. Similarly,
offences or 'criminality or evil of certain action or punishments-may
be explained.
According to Bentham, this theory of pains and pleasures is the sole
foundation of all knowledge on the subject of legislation

SENSIBILITY .
Primary & Secondary which affect sensibility, Bentham's extension
of the principle of pleasure and pain takes us to his concept of
sensibility. AH causes of pleasure do not give the same pleasure to
all. Similarly all causes of pain will not produce the same pain-to all.
The difference is in its sensibility. It is in its degree or in kind. The
circumstances that influence the sensibility are spoken of as primary
or secondary. The primary circumstances are those that by
themselves would influence sensibility of a person under a given
cause, thing or situation. The secondary circumstances would not by
themselves influence the sensibility of a person under a given cause,
thing or situation. They would, however, jointly with the primary
circumstances influence the sensibility of a person. The differences in
sensibility depend on certain circumstances which influence the
moral or physical conditions of individuals. In matters of legislation,
we cannot proceed with any degree of assurance without
considering all circumstances which tend to influence sensibility. The
following are the primary circumstances which influence the
sensibility of an individual.
1) Natural consititution or temperament of the
individual,
2) Health,
3) Strength,
4) Bodily imperfection,
5) The degree of knowledge,
6) Strength of intellectual powers,
 7) Firmness of mind,
8) Perseverence,
9) The bent of inclinations,
10) Notions of Honour,
11) Notions of Religion,
12) Sentiments of sympathy and Antipathy,
13) Disorder of mind, etc. There are certain other
circumstances which have got an outward appearance
clearly noticeable. They are called Secondary
circumstances, namely:- 1) Sex 2) Age 3) Rank 4)
Education 5) Habitual occupations 6) Climate 7) Race 8)
Government and 9) Religious Profession. These
Secondary circumstances can easily be taken into
consideration not only by the legilator but also by the
judge who administers justice.

OFFENCES
Bentham's reasons for creating certain acts as offences. After making
an analysis of the evils, Benthams states that there are certain acts
which cause more of evil than of good. Legislators have prohibited
such acts and have called them as 'Offences'. To get these offences
respected, punishments have been prescribed universally. This is
well established. An act should not be declared as a crime basing on
prejudices which vary according to time, place, custom and opinions.
Trifling acts' may become serious crimes, in the absence of a
philosophy, h;ence, Bentham says 'the Principle of Utility should be
made the foundation'. Acts or omissions are to be declared as
offences basing the reason on utility. He asserts that all well known
offences are reasoned on the basis of Utility, This should be weighed
by.the legislator by weighing the evil and the good, in all its aspects.
i) Passion of hatred. If more evil results from a particular act (say
theft, robbery etc) than the good, that act should be declared as an
offence. The reason is more evil will result if that act is not declared
as an offence. Calculation of the pain or the pleasure, is to, Bentham,
as simple as arithmetic. If A assaults B intentionally, B suffers a pain,
but A gets the pleasure of assaulting - it appeals to his passion. But,
to B-it offends his honour & person. The pleasure of A in assaulting is
temporary, but, soon a fear of hatred by B sets in the mind of A. Fear
of every kind sorrounds him. Suppose A has cut off a leg of B
intentionally, the fear of. hatred of B doing someting will be
intensive. ii) Security affected: Ravishment. This is the effect of the
offence. A spirit of revenge may set in with serious consequences. iii)
Motive of Cupidity. The motive of a man becoming rich by robbing
the treasury, of stealing a piece of loaf to save from starvation, the
evils that result are of the second order which Bentham has defined.
Similarly, a person who commits rape. He may satisfy his appetite
but the pain it brings on the woman and on others, is
disproportionate. Hence, rape is declared as an offence.
msrlawbooks Pri.of Legn-Bentham >>>> Page15 The legislator must
measure the good and the evil with a kind of moral arithmetical
calculation. He must weigh the evils, their duration and their result.
He must measure them properly before erecting the act as an
offence. He must also weigh the derivative evils that may result from
the act. Thus, Bentham lays down a solid foundation to erect an act
as an offence basing his ordered reasons on his concept of pleasure
and pain.

FALSE REASONINGS
False Reasonings on the subject of Legislation. Bentham after
enunciating his theory of utility, uses that to the process of reasoning
with reference .to legislation, under 'legislative logic'. What is 'good
reason5 for a law ? It is looking to so much of good and so putting
arguments in favour of it. Or, it is looking to so much of evil (pain)
and so putting arguments in favour of it. The other aspect is to offer
'false reasons', Here, what is alleged is not the pleasure or pain. But,
it is something other than these ! This reasoning Bentham compares
to the 'Sophism' of Aristotle.
There is a list of false reasoning. Bentham enumerates the false
reasons on the subject of legislation.
i) Antiquity: This by itself should not be a reason to follow the
law, or not to follow.
ii) Religion: The Authority of Religion by itself is not a reason to
make us follow the law.
iii) Innovation: Finding a new thing or a new law should not be
a reason to follow or not to follow. Progress is essential.
iv) Arbitrary definition : One reason put forword is that the law
is arbitrary. This is a very common political argument. The
word law has been defined by Montesquieu & Rousseau but
the definitions suffer from lack of definiteness.
v) Metaphors: One method adopted is to refer to a metaphor
or allegory and it later becomes the basis, Blackstone calls
law as a castle or a fortress & says it cannot be weakened
except by breaking. This is false method of reasoning.
vi) vi) Fiction : A fiction is not a good reason. A fiction is
notoriously false and hence no reasons should be given. 'The
King can do no wrong' is a fiction & misleading. "The judges,
are mirrors in which the image of the King is reflected'. This
is a fiction & is ridiculous and puerile, Bentham says.
vii) vii) Fancy : What is reason? It is said reason decides and
eternal reason orders. The right of the father over a son
comes from the facts that he is the Chief and the son is the
seed of the father . This is based not on reason but fancy
says Bentham. The principle of utility is not seen here. The
son even if he is forty years of age should take permission of
his father to marry! Bentham hits hard on the fancy &
commends the concept of utility instead.
viii) Antipathy or Sympathy : These are not to be reasons. This is
the arbitrary principle. This is common in penal law-
antipathies towards criminals, their actions, the
punishments etc. Antipathy against Government, its
institution, work etc. leads to a rebellion. Implicit obedience
is the basis of arbitrary principle. Hence, this is not good.
 ix) Begging the question : This should not be the reason.
Begging the question (petitio principle) is a sophism. It
conceals itself artfully. This means assuming a question; it
consists of the very proposition which is in dispute as
proved. Locke & Rousseau explained the social contract
theory of the State. This is begging the question. They have
assumed the contract itself! Bentham says utility should
have been the reason for making a State.
x) An Imaginary Law : Natural Law. Natural Law & natural
rights are two fictions often used in the books of legislation.
In Natural law, nature is represented as a being and
attributes are given to her in law. This process is imaginary
and hence endless arguments are made on this. If the laws
of nature had directed all persons for their common good,
there was no necessity of any other law at all. They would be
useless and unnecessary. Why use a torch to show the Sun?
Comments: In all these reasonings, Bentham has shown how
false reasons are projected by individuals either in favour or
against of particular law. But, he pleads that all these are not
good reasons. He submits, any reason acceptable must be
based on the concept of utility-that of pleasure and pain.

MORALS AND LEGISLATION

According to Bentham "Legislation has the same centre, but it has
not the same circumference." Morality is an art. It directs the acting
of men to produce the greatest possible sum of good. The objective
of the Legislature must be the same. Though these two differ in their
extent, still the end is the same. All actions, public or private come
within Morality and individuals are guided by it throughout their
lives. However, legislation cannot do this. The reasons are : i)
Legislation can have no direct influence over individuals, except by
punishment. ii) There is the possibility of punishing the innocent, in
the anxiety of punishing the culprits. Hence, Bentham vertically
divides the area of legislation and suggests the legislators not to
interfere with the personal interests of an individual. The reason is
the person himself is the best judge and he will correct himself when
he finds he is in the wrong, e.g. Temperance. The legislator must look
to those areas when a person's actions create evil on others & to
legislate there. Then punishment will be effective.

SANCTION
Sanction. Bentham's theory of pleasure or pains explains away the
sanction of law. He says, The pleasure or pain which is attached to a
law, is the sanction.
The laws of one State, have no force in another State as they have no
sanction there. Pleasures and pains are of four classes. 1) Physical 2)
Moral 3) Political 4) Religious.
1) Physical or Natural sanctions: These are in the ordinary course of
nature. There is human intervention. A man's house is on fire by
accident. There is the pain of natural sanction.
2) Moral sanctions : These are with reference the actions of our
fellow men, friends etc. in society. Sanction of honour.
3) Political sanction: The pleasure and pain which result from the
actions of the Magistrate in punishing according to law. This is the
legal sanction.
4) Religious: The pleasure or pain which results from threats of
religions. These are religious sanctions. e.g: Legal sanction. A persons
house is pulled down by orders of a Magistrate. All these four
sanctions have their own impacts. The natural sanction is the one
which acts always. The popular & the religious sanctions are highly
variable and change in accordance with utility.
The legal sanction acts on all men with equal force: it is clear and
specific. But it requires proof. Hence the crafty can escape. Hence,
Bentham suggests to use all the three sanctions: Moral, political &
religious. They are like magnets-their power is doubled by putting
the corresponding poles together.