INTERPRETATION OF STATUTES
MODULE 05
Dr. Pandhare Balasaheb Dashrath
LL.M. Ph.D
Module 05 External Aids to Construction:
1. Parliamentary history
2. Debates and Proceedings of the Legislature
3. Historical facts and surrounding circumstances
4. Social economic and political developments
5. Reference to other statutes
6. Contemporanea exposition
7. Other external aids - codifying and consolidating statutes
8. International Conventions
9. Committee Reports
1. Parliamentary history
History is generally looking back at the things that have happened.
History is also the basement of the law which is in force today.
Therefore parliamentary history helps us to know the reason why a
particular Act or law has been enacted.
History serves the purpose of an Act. To enact a law there are various
stages to be followed by the legislature and the parliament. Therefore
it is always important to refer to parliamentary history if a law is in
issue today.
There is a general presumption that an act has been enacted only with
a purpose therefore we cannot deny the purpose while executing them
in reality.
The Bill in its original form or the amendments considered during the
progress in the Legislature are not considered as an aid to interpreting
a statute.
Legislative History comes into play only when the language of the
statute is not clear. If the plain reading of a statute is clear, then there
is no need of referring to the history of a statute.
Speeches made by the members of the Constituent Assembly in the
course of the debates on the draft Constitution cannot be admitted as
extrinsic aid to the construction of the Constitution, and similarly the
debates in Parliament on a Bill are not admissible for construction of
the Act which is ultimately enacted. Aswini Kumar Ghose v
Arabinda Bose, AIR 1952 SC 369
"A speech made in the course of the debate on a bill could at best
be indicative of the subjective intent of the speaker, but it could not
reflect the inarticulate mental process lying behind the majority
vote which carried the Bill. Nor is it reasonable to assume that the
minds of all those legislators were in accord".
"A statute", said Sinha CJI, "is the expression of the collective
intention of the Legislature as a whole and any statement made by
an individual, albeit a minister, of the intention and object of the
Act, cannot be used to cut down the generality of the words used in
the statute . State of WB v UOI, AIR 1963 SC 1241,
Aruna Roy v UOI, AIR 2002 SC 3176
While interpreting Article 28(1) of the Constitution, which prohibits
"religious instructions" in educational institutions maintained wholly
out of state funds, reference was made to the debates in the
constituent assembly which were said to be "illuminating and
helpful" in giving a restricted meaning to the expression "religious
instructions" and in holding that what the Article prohibits is
"teaching of customs, ways of worship practices and rituals" and not
study of different religions existing in India and outside India.
It is now a settled view that debates in the Constituent Assembly
may be relied upon to interpret a provision in the Constitution.
Parliamentary Debates were also relied on by the Supreme Court
while interpreting provisions of the Patents Act, 1970. Section
2(1)(j) of the Patents Act, 1970, defines "invention" to mean a new
product or process involving an inventive step and capable of
industrial application and section 2(ja) defines "inventive step" to
mean a feature of an invention that involves technical advance as
compared to the existing knowledge or having economic
significance or both and that makes the invention not obvious to a
person skilled in the art.
By an amendment to the Act effective from 1 January 2005, it was
inter alia provided in section 3(d) of the Act that the mere discovery
of a new form of a known substance which does not result in the
enhancement of the known efficacy of that substance would not be
an invention and also added an explanation to section 3(d).
The Supreme Court referred to the Parliamentary Debates preceding
the 2005 amendment and noted that the amendment to section 3(d)
was the only provision cited by the Government to allay the fears of
the Opposition concerning the abuses to which a product patent in
medicines may be vulnerable.
Hence, it was held that the amendment to the provision was meant
especially to deal with chemical substances, and particularly
pharmaceutical products and that, in addition to the standards laid
down in sections 2(1)(j) and (ja), the amended portion of section
3(d) clearly sets up a second tier of qualifying standards for
chemical substances/pharmaceutical products in order to leave the
door open for true and genuine inventions but, at the same time, to
check any attempt at repetitive patenting or extension of the patent
term on spurious
grounds. Novartis AG v UOI, (2013) 6 SCC 1
Historical facts and surrounding circumstances
Initially, to understand the subject matter of the statute, historical
background and the situations can be given importance. It is
because they tell us the real purpose of the particular Act. In the
case of older Statutes, knowledge of the historical facts relating to
them becomes indispensable for understanding the meaning of
ambiguous words.
National Seeds Corp Ltd v M Madhusudhan Reddy, (2012) 2
SCC 506
The Supreme Court has considered the background in which the
Consumer Protection Act, 1986, was enacted as well as its salient
features to hold that farmers/growers would fall within the wide
definition of "consumer" in section 2(1)(d) of the Act, and would be
entitled to claim compensatory relief for loss suffered on account of
defective seeds supplied to them, and that arbitration was not the
only available remedy, but rather an optional remedy.
4. Social economic and political developments
a statute may be interpreted to include circumstances or situations
which were unknown or did not exist at the time of enactment of
the statute when in the changed circumstances the common law
fiction that by marriage the wife must be deemed to have
irrevocably consented to sexual intercourse in all circumstances
has become anachronistic, the husband can be convicted of rape
under the Sexual Offences (Amendment) Act, 1976, if he has
sexual intercourse with his wife without her consent. R v R (rape:
marital exemption), (1991) 4 All ER 481
Anuj Garg v Hotel Association of India, (2008) 3 SCC 1
Section 30 of the Punjab Excise Act, 1914 prohibited the
employment of any man under the age of 25 years or any woman
in any part of premises in which liquor or intoxicating drugs were
consumed by the public.
This law which may have been good having regard to the social
conditions as they prevailed in the 20th Century, but having regard
to the present social conditions and equality to sexes guaranteed
under the Constitution, the same was declared invalid.
Definition of "telegraph line" in the Indian Telegraph Act, 1885, which is included
by reference in the Indian Electricity Act, 1910, is wide enough to take in electric
lines used for the purpose of wireless telegraph; Senior Electric Inspector v
Laxminarayan Chopra
The definition of "cinematograph" contained in section 2(e) of the Cinematograph
Act, 1952 and in Cinema Regulation Acts enacted by the States in 1952 will cover
video cassette recorders/players (developed in 1970s) for representation of motion
pictures on a television screen; Laxmi Video Theatres v State of Haryana, AIR
1993 SC 2328
the word "handwriting" in section 45 of the Evidence Act, 1872 will embrace
typewriting although it was only in 1874 that the first practical typewriter was
marketed; State v SJ Choudhary, AIR 1996 SC 1491
A tape recorded statement of a speech is admissible provided the voice of the
person alleged to be speaking is duly identified and possibilities of tampering are
ruled out; Tukaram S Dighole v Manikrao Shivaji Kokate, (2010) 4 SCC 329
and evidence taken of a witness in America by video conferencing in India where
the accused is being tried will satisfy the requirement of evidence taken in presence
of the accused under section 273 of the Criminal Procedure Code enacted in 1973
when the technique of video conferencing had not developed; State of
Maharashtra v Dr Praful B Desai, AIR 2003 SC 2053
and power to alter meter in section 20 of the Electricity Act, 1910 will cover power
to replace electromechanical meters by electronic meters which were not in vogue
when the Act was enacted. Suresh Jindal v BSES Rajdhani Power Ltd, AIR 2008
SC 280
5. Reference to other statutes
The statute other than the statute which is in issue is called as other
statutes and referring to them is a reference to other statutes.
The initial condition to refer to other statutes is that both the statute
in issue and the referring statute may be of similar nature.
If they have the same nature then they can be matched while
interpreting. It has been held in a case that in order to determine the
scope of the tax imposed vide notification issued under UP
Entertainment and Betting Tax Act, 1979, definition of a
corresponding expression defined in sister legislation namely, UP
Cinemas (Regulations) Act of 1955 can be applied. DM, Haridwar v
Harish Malhotra (2015) 11 SCC 513
Help from Earlier Statutes can also be given importance. Repetition of
words in older statutes and also in present statutes gives a
presumption that they both carry the same meaning. This application
doesn‟t apply if the language or the decision on the earlier act is not
consistent.
Kusum Ingots & Alloys Ltd v UOI, (2004) 6 SCC 254,
Section 20(c) of the Code of Civil Procedure and Article 226(2) of the
Constitution have been held to be in pari materia and decisions
interpreting the former have been held to apply in interpreting the
latter for deciding the place or places where "the cause of action
wholly or in part arises" for entertainment of a writ petition in the
High Court for challenging the vires of a Central Act.
Bangalore Turf Club Ltd v Regional Director, ESI Corp, (2014) 9
SCC 657
The Supreme Court has accordingly held that the definitions of "shop"
in the Maharashtra Shops and Establishments Act, 1948, and the
Karnataka Shops and Commercial Establishments Act, 1961, cannot
be used to interpret the word "shop" in the context of notifications
issued under the Employees' State Insurance Act, 1948, because
though all three Acts deal with labour and workmen, in essence and
spirit they have a different scheme and application. Hence, preferring a
purposive interpretation, Turf Clubs were held to be duly covered
under the term "shop" for the purposes of the ESI Act and the
notifications issued thereunder.
State of Madras v A Vaidyanath Ayer, AIR 1958 SC 61
Section 4 of the Prevention of Corruption Act, 1947, which directs
that on proof that the accused has accepted any gratification other
than legal remuneration, it shall be presumed unless the contrary is
established by the accused that the gratification was accepted as a
bribe, has been held to be in pari materia with the subject matter
dealt with by the Indian Evidence Act, 1872; and the definition of
the expression "shall presume" in the Evidence Act has been utilised
to construe the words "it shall be presumed" in section 4 of the
Prevention of Corruption Act, 1947.
6. Contemporanea exposition
The effect of usage and practice means that words of a statute will
generally be understood in the sense which they bore when it was
passed. It is also believed that Contemporanea Expositio Est
Fortissima in Lege is the best in law but this doesn‟t apply to modern
statutes.
That is because it can be used only when interpreting the words of an
old language that is present in older statutes. Earlier the Supreme
Court of India was not using this principle in the Telegraph Act of
1885, and the Evidence Act of 1872.
But it was referred to in the case of RS Nayak v AR Antuley, (1984),
AIR 684 in constructing the 21st Section of the Indian Penal Code of
1860 and it was held that an MLA is not a “public servant”, as this
expression is defined therein.
Supreme Court Advocates-on-Record Association v UOI, AIR 1994
SC 268
The Supreme Court also referred to the actual practice in the matter of
appointment of judges of Supreme Court and High Courts in the
context of interpreting Articles 74 and 124 of the Constitution and
observed that the practice being in confirmity with the constitutional
scheme should be accorded legal sanction by permissible constitutional
interpretation.
Vinay Tyagi v Irshad Ali, (2013) 5 SCC 762The Supreme Court has
held that though there is no specific requirement under section 173(8)
of the CrPC, 1973, to conduct "further investigation" or file
"supplementary report" with the leave of the court, the investigating
agencies have not only understood but also adopted it as a legal
practice to seek permission of the courts to conduct "further
investigation" and file "supplementary report", and will therefore have
to be read into, and is a necessary implication of section 173(8). The
doctrine of contemporanea expositio will fully come to the aid of such
interpretation as matters which are understood and implemented for a
long time and such practice that is supported by law should be
accepted as part of the interpretative process.
Naga People's Movement of Human Rights v UOI, AIR 1998 SC
431
Drastic powers conferred on army authorities under sections 4 and 5
of the Armed Forces (Special Powers) Act, 1958 in respect of a
"disturbed area" have been construed in the light of instructions (Do's
and Dont's) issued by the Central Government to prevent misuse or
abuse of the powers and the instructions have been held to be binding.
INTERNATIONAL CONVENTION
Before the adoption of Indian Constitution the Indian practice
was similar to the British Practice .
After adoption of the Constitution practice depend on the
provisions of the constitution.
In order to know the position of International Law in the
post-Constitution period, it is necessary to examine the
relevant provisions of the Constitution.
The most relevant provision in contained under Art. 51 which
runs as follows
24
“ The state shall endeavor to-
a) Promote international peace and security
b) Maintain just and honorable relations between nations
c) Foster respect for international law and treaty obligations
in the dealings of organized peoples with one another;
d) Encourage settlement of International disputes by
arbitration.
25
It is significant to note that Art.15(c) specifically
mentions international law and treaty obligations.
However this Article is part of Part-IV i.e. Directive
Principles of State Policy.
Art. 37 clearly provides that the provisions contained in
this part shall not be enforceable by ant court.
But it also states that nevertheless these provisions are
fundamental in the governance of the country and it shall
be the duty of the state to apply these principles in
making laws. 26
Therefore it can not be contended that they are of no
significance or even of less significance that the
fundamental rights
This view has been affirmed by the 24th and 25th
Amendments of the Constitution.
But Arr. 51 does not give any clear guidance regarding
the position of international law in India as well as the
relationship of municipal law and international law.
27
Weather the Constitution has altered the position prevailing in
pre-constitution period.
Article 372(1) Clearly Provides: “Notwithstanding the repeal
by this constitution of the enactments referred to in Article
395 but subject to other provisions of this constitution, all the
laws in force in the territory of India immediately before the
commencement of this Constitution, shall continue in force
hereinafter until altered or repealed or amended by a
competent Legislature or other competent authority.
28
Therefore the position prevailing immediately preceding
the commencement of the constitution continues even
after the coming into force of the Constitution
In India also customary rules of international law are part
of they municipal law provided that they are not
inconsistent with any legislative enactment or the
provisions of the Constitution of India.
As regards the Treaty rules also, India follows more or
less the British dualist view.
29
that is to say international law can become part of
municipal law of India if it has been specifically
incorporated.
State of Madras V. G.G. Menon. (AIR 1954 SC 517)
The Supreme Court held: Indian Extradition Act, 1903
has been adopted but the Fugitive Offenders Act,1881 of
the British Parliament has been left severely alone.
Therefore the provisions of Fugitive Offenders Act,1881
have no force in India.
30
ARTICLE 253 0F THE CONSTITUTION
Parliament has power to make any law for the whole or any
part of the territory of India for implementing any treaty,
agreement or convention with any other country or countries
or any decision made at an international conference,
association or other body.
In Shiv Kumar Sharma V Union of India (AIR 1969 Del 64)
and in Maganbhai Ishwarbhai Patel v union of India (AIR
1969 SC 783) it was held that treaties settling boundary
dispute does not require legislation.
31
In A.D.M. Jabalpur V. Shivkant Shukla (AIR 1976 SC 1207)
whether UDHR, 1948 and ICCPR,1966 and ICESCR,1966
were part of Indian municipal law.
By majority the SC held that, they were not part of Indian
Municipal law.
However J. H.R. Khanna in his dissenting judgment held that,
if there is a conflict between municipal law and international
treaty it is the former that will prevail.
32
But if two interpretation of municipal law are possible the
court should adopt such interpretation which will bring
harmony municipal law and treaty.
In his view, the constitutional provision should be interpreted
in such a way as to avoid conflict with the UDHR.
Jolly George Varghese V, Bank of Cochin (AIR 1980 SC 474)
in case of conflict between provisions of International treaty
such as Art. 11 of ICCPR, 1966 and Sec 51. and Order 21
rule 37 of CPC
33
It is the later which shall prevail if the international treaty in
question has neither been specifically adopted in the
municipal field or had gone under transformation.
Civil Rights Vigilance Committee, S.L.S.R.C. College of
Law. Bangalore V. Union of India (AIR 1983 Kant 85)
The Government of India‟s obligation under International
Treaties can not be enforced, at the instance citizens of this
country or associations of such citizens, bh Courts in India,
unless such obligations were made part of the law of this
country by means of appropriate legislation.
34
Gramophone Company of India ltd. V Birendra Bahadur Pandey
(AIR 1984 SC 667)
Supreme Court observed that if in respect of any principles of
international law the parliament says „no‟, the national court can
not say „yes‟.
National court shall approve international law only when it does
not conflict with national law.
Vishakaha V. State of Rajasthan (AIR 1997 SC 3011)
Art. 14,15,19(1) (g) and 21 of Indian Constitution and CEDAW.
35
Apparel Export Promotion Council V. A.K. Chopra (AIR
1999 SC 625)
The court while applying the vishakha guidelines
dismissed the superior officer of corporation for
molesting a subordinate female employee.
Court further observe that, in cases involving violation of
human rights, the courts must for ever remain alive to the
international instruments and conventions and apply the
same to a given case .
When there is no inconsistency between international
36
Norms and the domestic law occupying the field.
In the instant case, the High Court appears to have totally
ignored the intent and content of the international
conventions and norms while dealing with the case.
Chairman, Railway Board & others V. Mrs. Chandrima
Das amd others. (AIR 2000 SC 988)
The applicability of the Universal Delaration of Human
Rights and Principles thereof may have to be read, if
need be inti the domestic jurisprudence.
37
The international covenants and declarations as adopted
by the United Nations have to be respected by all
signatory states and the meaning given to the words in
such declarations and covenants have to such as would
help in effective implementation of those rights.
38
COMMITTEE REPORTS
The Constitution Bench held that the Court can rely on a PSC Report
as an „external aid‟ for statutory interpretation. When the words of a
statute are ambiguous, a PSC Report serves as an „external aid‟ to
interpret a statutory provision.
It was held that a PSC Report can be used to evaluate the historical
background of a law, or the nature of the problem that a statute sought
to cure. A PSC Report has persuasive value while resolving an
ambiguity in the wording of a statutory provision.
The Court also agreed with the conclusions of two earlier Constitution
Bench decisions – in R.S. Nayak v. A.R. Antulay (1984)
State of Mysore v. R.V. Bidap (1974).
In both these decisions, it was held that the reports and
recommendations of Committees/Commissions which preceded the
enactment of a statute can be used as „external aids‟ to interpret the
meaning of ambiguous words in a statutory provision. It was also
clarified that such reports cannot be decisive, and the Court is free to
arrive at a different conclusion.
These decisions also expressed disagreement with the approach
adopted by British Courts – which had on many occasions taken a
view that parliamentary materials are not legitimate tools of statutory
interpretation.
In Antulay’s case (1984) – the SC noted that across multiple
jurisdictions, there was a growing trend of using committee reports as
a tool for statutory interpretation, and even British Courts had begun
reversing their earlier position.
It is interesting to note that the decision in Antulay’s case had already
settled the legal position – by concluding that committee reports can
be used as external aids of statutory interpretation. To this extent, there
was no „substantial question of law‟ that required a reference to
another Constitution Bench.
In accordance with the Kalpana Mehta judgment, the Reports
submitted by such Committees/Working Groups shall have
persuasive value while interpreting a statutory provision. For
instance, the Report of the Company Law Committee, 2016 („CLC
2016‟) shall have persuasive value while interpreting any amendment
made to the 2013 Act, via the Companies (Amendment) Act, 2017.
The observations made in the CLC 2016 Report shall have
persuasive value while examining the objective behind any of the
amendments made, and can be referred for the purpose of resolving
any ambiguity in the wording of a provision. The relevance of the
Report shall only be persuasive, as an „external aid‟ of statutory
interpretation.
In accordance with the spirit of the Kalpana Mehta judgment, two
other conclusions can also be drawn from such Reports submitted by
Committees appointed by regulators:
The Court is not bound by any factual finding or observations made
in the Committee Report. The Court can arrive at its own
independent finding based on the evidence adduced by the parties.
The parties to a judicial proceeding are also not bound by any factual
findings or observations made by the Committee. The parties are free
to independently adduce evidence on any issue of fact which is
contentious.
