Reproductive Right of a woman: Part 1

Vande Matram! This is article based on multiple choice questions on feminist jurisprudence and gender justice in India. This is a series.

1) Over the last decade, Indian courts have issued several notable decisions recognizing women’s reproductive rights as part of the __________ implicitly protected under the fundamental right to life.

a) inalienable survival rights

b) human rights

c) fundamental rights

d) none of the above

Ans. a) inalienable survival rights

If you say that someone has an inalienable right to something, you are emphasizing that they have a right to it which cannot be changed or taken away.

2) ___________ disproportionately harm women due to their capacity to become pregnant and legal protection of these rights as human rights is critical to enable gender justice and the equality of women.

a) Violation of right to life

b) Violations of reproductive rights

c) Violation of right to equality and non-discrimination

d) Violations of fundamental rights

Ans. b) Violations of reproductive rights

3) India is signatory to _________ which recognizes reproductive rights.

a) Abolition of Forced Labour Convention (AFLC)

b) Employment Service Convention, (ESC)

c) Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

d) Labour Statistics Convention (LSC)

Ans. c) Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

4) India is signatory to _________ which recognizes reproductive rights.

a) International Convention to Facilitate the Importation of Commercial Samples and Advertising Material (ICFICSAM)

b) Aircraft Protocol to the Cape Town Treaty (APCTT)

c) Animal Production and Health Commission for Asia and the Pacific (APHCAP)

d) International Covenant on Civil and Political Rights (ICCPR)

Ans. d) International Covenant on Civil and Political Rights (ICCPR)

5) India is signatory to _________ which recognizes reproductive rights.

a) International Covenant on Economic, Social and Cultural Rights (ICESCR)

b) Kyoto Protocol (KP)

c) Employment Policy Convention (EPC)

d) Genocide Convention (GC)

Ans. a) International Covenant on Economic, Social and Cultural Rights (ICESCR)

6) India is signatory to _________ which recognizes reproductive rights.

a) Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (OPSCCPCP)

b) Convention on the Rights of the Child (CRC)

c) Convention on the Rights of Persons with Disabilities (CRPD)

d) Constitution of the International Organization for Migration (CIOM)

Ans. b) Convention on the Rights of the Child (CRC)

7) __________ of the Indian Constitution and the judiciary has established that the government has a constitutional obligation to respect international law and treaty obligations.

a) Article 51(a)

b) Article 51(b)

c) Article 51(c)

d) Article 51(d)

Ans. c) Article 51(c)

8) Although India was among the first countries in the world to develop legal and policy frameworks ___________, women and girls continue to experience significant barriers to full enjoyment of their reproductive rights, including poor quality of health services and denials of women’s and girls’ decision-making authority.

a) for criminalization of abortions

b) imparting justice to rape victims

c) guaranteeing  forceful family planning operations of majority community

d) guaranteeing access to abortion and contraception

Ans. d) guaranteeing access to abortion and contraception

9) In which cases the Delhi High Court stated that “these petitions focus on two inalienable survival rights that form part of the right to life: the right to health which would include the right to access and receive a minimum standard of treatment and care in public health facilities and in particular the reproductive rights of the mother.”

a) Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors.

b) Jaitun v. Maternity Home, MCD, Jangpura & Ors.

c) Both a) and b)

d) None of these

Ans. c) Both a) and b)

Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors. and Jaitun v. Maternity Home, MCD, Jangpura & Ors., these two cases were concerning denials of maternal health care to two women living below the poverty line. In these cases by citing CEDAW and ICESCR, the decision held that “no woman, more so a pregnant woman should be denied the facility of treatment at any stage irrespective of her social and economic background…This is where the inalienable right to health which is so inherent in the right to life gets enforced.”

10) The High Court of Madhya Pradesh in __________, opined that “the inability of women to survive pregnancy and child birth violates her fundamental right to live as guaranteed under Article 21 of the Constitution of India” and “it is the primary duty of the government to ensure that every woman survives pregnancy and child birth.”

a) Mayank Rastogi vs Sh. V K Bansal & Osrs

b) Shankaria vs State Of Madhya Pradesh

c) Chander Kanta Bansal vs Rajinder Singh Anand

d) Sandesh Bansal v. Union of India

Ans. d) Sandesh Bansal v. Union of India

Importantly, the Bansal decision specifically rejected financial constraints as a justification for reproductive rights violations, and established that government obligations under Article 21 require immediate implementation of maternal health guarantees in the National Rural Health Mission, including basic infrastructure, such as access to blood, water, and electricity, in health facilities; timely maternal health services and skilled personnel; and effective referral and grievance redressal mechanisms where maternal health care is denied.

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Procedure of Civil Suit 2

Vande Matram! Moot Court is a practical subject of Law. Many a times you have to perform Court Proceedings in your practical exams. For that many problems are given to you from your college and you have to represent your case either from side of plaintiff / applicant or from side of defendant / non-applicant. The moot court practical gives you experience of actual court proceedings.

Also you have to appear for a viva-voce for the subject. In viva-voce the examiner may ask you about the cases you have observed during your training with a law firm and some questions about the general things may be asked. Here are some short questions and answers which may be asked apart from problems of moot court you have solved or cases you have observed during your training with a law firm.

Read Q1 to Q10 Here

Q11) What is Written Statement?

Ans. When the notice has been issued to the defendant, he is required to appear on the date specified in the notice. Before such date, the defendant is required to record his written statement i.e. his barrier against the claim raised by offended party. If time is specified by the Court then written statement must be filed within such time otherwise within 30 days from date of administration of notice issued by the Court.

Q12) What is contained in a written statement?

Ans. The written statement should specifically deny the allegations, which defendant thinks are false. Any allegation not specifically denied is deemed to be admitted. The written statement should also contain verification from the Defendant, stating that, the contents of written statement are true and correct.

Q13) What is replication by plaintiff?

Ans. Replication is a reply, filed by the plaintiff, against the "written statement" of Defendant and it should also specifically deny the allegations raised by the Defendant in written statement. Anything which is not denied is deemed to be accepted. Once Replication is filed, pleadings are stated to be complete.

Q14) How documentary proofs are filed in a civil suit?

Ans. Filing of Other Documents as documentary proofs – In civil suit many of a time documentary proofs are very necessary. Once, the pleadings are complete, then both the parties are given opportunity to produce and file documents, on which they rely, and to substantiate their claims. Filing of Documents should be admitted and taken on record. These documents are nothing but the documentary evidences under the Evidence Act.

Q15) How documents are admitted to the record of the civil suit by the Court?

Ans. Once the documents are filed by the parties then

·         Documents filed by one party may or may not be admitted by opposite party

·         In case documents are denied by opposite party, then they can be admitted by the witness presented by party whose documents are denied

·         Once the document has been admitted it shall form a part of the record of court, and all the details of suit such as name of parties, title of suit etc, shall be inscribed on the document

·         Documents, which are rejected i.e. not admitted, are returned to the respective parties.

·         It is necessary that document should be filed in "original", and a spare copy should be given to the opposite party.

Q16) How issues are framed by the Court?

Ans. Issues are framed by the Court as follows

·         Issues are framed, keeping in view the disputes in the suit, and the parties are not allowed to go outside the purview of "Issues".

·         Issues may be of Fact or Law.

·         At the time of passing final order, the court will deal with each issue separately, and will pass judgments on each issue.

Q17) How witness of person is taken in the court record?

Ans. If parties wish to produce some witness then

·         The list of witnesses must be filed along with all the details such as name, age, occupation, address of correspondence, etc. within period as the court may fix or within the 15 days from date on which issues were framed by the Court.

·         The parties may either call the witness by themselves, or can ask the court to send summons to them.

·         In case court send summons to witness then the party which asked for such witness has to deposit money ' with the Court for their expenses, is known as "Diet Money".

·         Any witness, who is not appeared before the court, if he is required by the court to do so, then the court may penalize in terms of fine.

·         Finally on the date, the witness will be examined by both the parties

·         Once, the Examination and Cross- Examination of witness is over, and also the admission and denial of documents, then the court will fix a date for final hearing.

Q18) How the final hearing will be conducted in a civil suit?

Ans. Final Hearing of a civil suit will be conducted by the court:

·         On final hearing day, the final argument will take place

·         The arguments should strictly be restricted to the issues framed

·         Before the final Arguments, the parties with the permission of Court can amend their pleadings

·         The court may refuse to listen for anything which is not contained in the pleadings

·         Finally, the court will pass a "final Order", either on the day of hearing itself, or some other day which will fixed by the court.

Q19) What is certified copy of order?

Ans. Certified copy of order- It is the final order of court, and having the seal and stamp of court. It is useful, in case of Appeal or in case of execution of the order.

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Procedure of a Civil Suit 1

 

Vande Matram! Moot Court is a practical subject of Law. Many a times you have to perform Court Proceedings in your practical exams. For that many problems are given to you from your college and you have to represent your case either from side of plaintiff / applicant or from side of defendant / non-applicant. The moot court practical gives you experience of actual court proceedings.

Also you have to appear for a viva-voce for the subject. In viva-voce the examiner may ask you about the cases you have observed during your training with a law firm and some questions about the general things may be asked. Here are some short questions and answers which may be asked apart from problems of moot court you have solved or cases you have observed during your training with a law firm.

Q1) Is there any procedure laid down by statute to file a civil case or civil suit?

Ans. Yes, there is a procedure laid down by the Code of Civil Procedure 1908. If the process is not followed, then the Court Registrar has a right to dismiss the suit. But in general the objections are raised by the Registrar and the counsel for plaintiff has to remove these objections by doing the necessary as instructed by the Registrar.

Q2) What is the plaint?

Ans. Plaint is the written complaint or allegation.

Q3) Who is plaintiff and who is defendant?

Ans. One who files plaint is known as "Plaintiff" and against whom it is filed is known as "Defendant".

Q4) What are the contents of a plaint?

Ans. A plaint contains Name of the Court, Nature of Complaint, Names and Address of parties to the suit, the facts of the case, allegations made by plaintiff, prayer for relief and remedy, verification from plaintiff, stating that, contents of the plaint are true and correct.

Q5) What is Vakalatnama?

Ans. Vakalatnama is a written document, by which the person/party filing the case authorises the Advocate/Lawyer to represent on their behalf. However a person/party filing a case, May also represent their own case personally in any court and in this case he do not need Vakalatnama"

Q6) What are the terms of a Vakalatnama?

Ans. In general, a Vakalatnama may contain below terms:

·         The client will not hold the Advocate responsible for any decision

·         The client will bear all the costs and/expenses incurred during the proceedings

·         The advocate will have right to retain the documents, unless complete fees are paid

·         The client is free to disengage the Advocate at any stage of the Proceedings

·         The Advocate shall have all the right to take decisions on his own in the court of Law, during the hearing, to the best interest of client

Q7) How to file a plaint?

Ans. After preparation of plaint of a civil suit it is to be filed before the Chief Ministerial Officer (Sherestedar) at the filing counter, along with appropriate court fee and process fee(For different types of documents, a person has to pay different amount of Court fees.) At least two copies of the plaint must be filed, the number of copies may vary depending upon the number of defendant parties.

Q8) What is Court Fee?

Ans. Court fees is a nominal percentage of the total value of the claim or the value of the suit. The requisite amount of Court fees and stamp duty is different for every suit, and the same is mentioned in the “Court Fees Stamp Act”.

Q9) What may happen on first day of hearing of a suit?

Ans. After filing a plaint the court proceedings are conducted. On the first day of hearing, if the court thinks there are merits in the case, it will issue notice to the opposite party, to submit their arguments, and fix a date.

Q10) What is the responsibility of plaintiff or his counsel after issuance of notice to opposite party by the Court?

Ans. When the notice is issued to the opposite party, the plaintiff is needed to do the following:

·         File requisite amount of procedure - fee in the court.

·         File 2 copies of plaint for each defendant in the court.

·         Of, the 2 copies for each defendant, one shall be sent by Register/post/courier, and one by Ordinary post.

·         Such filing should be done within 7 days, from date of order/notice.

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Civil Suit

 Vande Matram! Moot Court is a practical subject of Law. Many a times you have to perform Court Proceedings in your practical exams. For that many problems are given to you from your college and you have to represent your case either from side of plaintiff / applicant or from side of defendant / non-applicant. The moot court practical gives you experience of actual court proceedings.

Also you have to appear for a viva-voce for the subject. In viva-voce the examiner may ask you about the cases you have observed during your training with a law firm and some questions about the general things may be asked. Here are some short questions and answers which may be asked apart from problems of moot court you have solved or cases you have observed during your training with a law firm.

Q1) What is a civil case?

Ans. A civil case is a legal dispute between two or more parties.

Q2) When the process of a civil suit starts?

Ans. The process starts when someone files a lawsuit (plaintiff) against a single person or group of people (defendant).

Q3)  What is the purpose of a civil suit?

Ans. The purpose of a lawsuit is usually to win compensation for damages, injuries or money that is lost as the result of an action taken by the defendant.

Q4) Enlist the types of civil suits?

Ans. The types of civil suits are A) Tort claims (injuries), B) Breach of contract claims, C) Equitable claims, D) Class action claims, E) Complaints against the government, etc.

Q5) What is meant by the complaint against the government?

Ans. If civil rights of a person are violated by the actions, orders of the government then he can approach to the Court for compensation for such violation of his /her civil rights, such a complaint against the orders or actions of the government is called as the complaint against the government, e.g. reservation of a land having private ownership for public purpose under the Maharashtra Regional Town Planning Act, 1966 and non acquisition of such land within 10 years from publication of Development plan of the city.

Q6) What is meant by class action suit?

Ans. Class action suit is similar to tort case, except the “plaintiff” is actually a group or class of people. The “defendant” is often a corporation that is accused of negligence or intentional acts that caused many injuries, e.g. a company that exposes people to hazardous substances and claim for damages by such people is class action suit.

Q7) Explain equitable claims.

Ans. With equitable claims, the plaintiff asks the court to order a company or individual to refrain from doing something, which is known as an injunction. This type of case is not about a monetary reward for a past injury but is done to prevent a future harmful act. Equitable claims might ask the court to stop a developer from building a commercial plaza in a residential area, or ask a beef seller to shift his shop from residential area of pure vegetarians to the residential area of non-vegetarian people, etc.

Q8) Explain breach of contract claims

Ans. This type of civil claim involves a dispute over a contract. Contract disputes can involve multiple businesses or individuals. Any partnership or client relationship relies on a contract to ensure both parties do what has been promised. When one party breaks the agreement, for any reason, a lawsuit is often the result, e.g. non-execution of sale deed of an immovable property as per the conditions of agreement to sale.

Q9) Explain tort claims.

Ans. Tort claims might be filed against a business or an individual and involves accusations of alleged negligence. In this case, the plaintiff asks for punitive damages to compensate for medical bills, lost time at work or money spent replacing damaged property, e.g. fraud, defamation, emotional distress, invasion of privacy, etc.

 

Reference:

5 BASIC TYPES OF CIVIL CASES

 

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Reference to other Statutes

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss how Reference to other Statutes used to interpret the statutes?

Reference to other Statutes

A statute must be read as a whole as words are to be understood in their context. Extension of this rule of context, permits reference to other statutes in pari materia, i.e. statutes dealing with the same subject matter or forming part of the same system, e.g. Section 304B of IPC must be read with Section 2 of the Dowry Prohibition Act as both of them deal with the dowry and related offences.

Viscount Simonds conceived it to be a right and duty to construe every word of a statute in its context and he used the word in its widest sense including other statutes in pari materia.

It is a well accepted legislative practice to incorporate by reference, if the legislature so chooses, the provisions of some other Act in so far as they are relevant for the purposes of and in furtherance of the scheme and subjects of the Act. Words in a later enactment cannot ordinarily be construed with reference to the meaning given to those or similar words in an earlier statute. But the later law is entitled to weight when it comes to the problem of construction.

Generally speaking, a subsequent Act of a legislature affords no useful guide to the meaning of another Act which comes into existence before the later one was ever framed. Under special circumstances the law does, however, admit of a subsequent Act to be resorted to for this purpose but the conditions, under which the later Act may be resorted to for the interpretation of the earlier Act are strict. Both must be laws on the same subject and the part of the earlier Act which is sought to be construed must be ambiguous and capable of different meanings.

Although a repealed statute has to be considered, as if it had never existed, this does not prevent the Court from looking at the repealed Act in pari materia on a question of construction.

The regulations themselves cannot alter or vary the meaning of the words of a statute, but they may be looked at as being an interpretation placed by the appropriate Government department on the words of the statute. Though the regulations cannot control construction of the Act, yet they may be looked at, to assist in the interpretation of the Act and may be referred to as working out in detail the provisions of the Act consistently with their terms.

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Use of foreign decisions

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss how are the foreign decisions used to interpret a statute?

Use of foreign decisions:

Reference to English and American decisions may be made, because they have the same system of jurisprudence as ours, but do not prevail when the language of the Indian statute or enactment is clear. They are of assistance in elucidating general principles and construing Acts in pari material. But Indian statutes should be interpreted with reference to the facts of Indian life.

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Precedents and judicial pronouncements

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss how are the precedents used to interpret a statute?

Precedents and judicial pronouncements:

A principle of law which has become settled by a series of decisions is generally binding on the courts and should be followed in similar cases. This is based on expediency and public policy.

“Per incuriam” are those decisions given in ignorance or forgetfulness of some statutory provisions or authority binding on the Court concerned, or a statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reasons so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.

Judgments:

Ramkrishna Bus Transport and Ors v. State of Gujarat and Ors 1995 (1) G.L.H 520

While dealing with the provision of Sec. 207 of the Motor Vehicle Act, 1988, Hon’ble Mr. Justice C.K. Thakkar in the case of Ramkrishna Bus Transport and Ors v. State of Gujarat and Ors, 866 at Para. 43 held that, whether a particular provision is mandatory or directory depends upon intention of the Legislature and not only upon the language in which it is used. The meaning and intention of the Legislature must be treated as decisive and they are to be ascertained not only form the phraseology used but also by considering the nature, design and consequences which would flow from construing it one way or the other. It is also true that in certain circumstances, the expression ‘may’ can be construed as ‘shall’ or vice versa. At the same time, however, it cannot be ignored that ordinarily ‘may’ should read as ‘may’ which is permissive and not obligatory. For the purpose of giving effect to the clear intention of the legislature, ‘may’ can be read as ‘shall’ or ‘must’.

Mahadeolal Kanodia v. Administrator General of W.B. AIR 1960 SC 936

In Mahadeolal Kanodia v. Administrator General of W.B., the Supreme Court was concerned with the retrospectivity of law passed by the West Bengal Legislature concerning the rights of tenants and in para 8 of the judgment the Supreme Court held that: “8. The principles that have to be applied for interpretation of statutory provisions of this nature are well established. The first of these is that statutory provisions creating substantive rights or taking away substantive rights are ordinarily prospective; they are retrospective only if by express words or by necessary implication...”

Amireddi Raja Gopala Rao v. Amireddi Sitharamamma AIR 1965 SC 1970 : (1965) 3 SCR 122

In Amireddi Raja Gopala Rao v. Amireddi Sitharamamma, a Constitution bench was concerned with the issue as to whether the rights of maintenance of illegitimate sons of a Sudra as available under the Mitakshara School of Hindu law were affected by introduction of Sections 4, 21 and 22 of the Hindu Adoptions and Maintenance Act, 1956. The Court held that they were not, and observed in para 7 as follows: “7. ... a statute should be interpreted, if possible, so as to respect vested rights, and if the words are open to another construction, such a construction should never be adopted.”

ITO v. Induprasad Devshanker Bhatt AIR 1969 SC 778

In this case the Supreme Court, in context of a provision of the Income Tax Act, 1961, was concerned with the issue as to whether the Income Tax Officer could reopen the assessment under Sections 297(2)(d)(ii) and 148 of the Income Tax Act, 1961, although the right to reopen was barred by that time under the earlier Income Tax Act, 1922. The Supreme Court held that the same was impermissible and observed in para 5 as follows: “5. ... The reason is that such a construction of Section 297(2)(d)(ii) would be tantamount to giving of retrospective operation to that section which is not warranted either by the express language of the section or by necessary implication. The principle is based on the well-known rule of interpretation that unless the terms of the statute expressly so provide or unless there is necessary implication, retrospective operation should not be given to the statute so as to affect, alter or destroy any right already acquired or to revive any remedy already lost be efflux of time.”

Sakshi v. Union of Inaia & Others, (2004) 5 SCC 518

In this case the Supreme Court has observed that: “23. Stare decisis is a well-known doctrine in legal jurisprudence. The doctrine of stare decisis, meaning to stand by decided cases, rests upon the principle that law by which men are governed should be fixed, definite and known, and that, when the law is declared by a court of competent jurisdiction authorized to construe it, such declaration, in absence of palpable mistake or error, is itself evidence of the law until changed by competent authority. It requires that rules of law when clearly announced and established by a court of last resort should not be lightly disregarded and set aside but should be adhered to and followed. What is precludes is that where a principle of law has become established by a series of decisions, it is binding on the courts and should be followed in similar cases. It is a wholesome doctrine which gives certainty to law and guides the people to mould their affairs in future.

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Dictionaries and text books

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss how are the dictionaries and text books used to interpret a statute?

Dictionaries and text books:

The meaning of particular words in an Indian statute is to be found not so much in a strict etymological propriety of language nor even in popular sense, as in the subject or occasion on which they used. But it is well known that words are generally used in their ordinary sense and therefore, though dictionaries are not to be taken as authoritative in regard to the meanings of the words used in statutes, they may be consulted.

The use of dictionaries is limited to circumstances where the judges and Counsels use different words. In such cases the court may make use of standard authors and well known authoritative dictionaries. e.g. Merriam Webster Dictionary

Text books may also be refereed to for assistance in finding out the true construction of a statute. e.g. Transfer of Property Act, 1882 Commentary by Mulla.

Judgment:

Voltas Ltd. v. Rolta India Ltd. (2014) 4 SCC 516

In Voltas Ltd. v. Rolta India Ltd., the Supreme Court has held that: “Dictionaries can hardly be taken as authoritative exponents of the meanings of the words used in legislative enactments for the plainest words may be controlled by a reference to the context. Similarly, Lexicons would only define an expression in terms of a decision given by a Court of Law, and unless this decision was given under the Act in which the expression is used "it involves" in the words of Ram Lal,J. in Frim Karam Narain Daulat Ram v. Colkart Bros., A.I.R. 1946 Lah (F.B) pp.116, 128" a dangerous method of interpretation."

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Statement of objects and reasons

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss how are the statements of objects and reasons of an enactment used to interpret a statute?

Statement of objects and reasons:

The statements of objects and reasons cannot be used as an aid to construction. The statements of object and reason are not admissible as an aid to construction of a statute. Objects and reasons of a statute are to be looked into as an external aid to find out the legislative intent, only when the language is obscure or ambiguous.

The Statement of Objects and Reasons, seeks only to explain what reasons induced the mover to introduce the bill in the House and what objects he sought to achieve. But those objects and reasons may or may not correspond to the objective which the majority of members had in view when they passed it into law. The Bill may have undergone radical changes during its passage through the House or Houses, and there is no guarantee that the reasons which led to its introduction and the objects thereby sought to be achieved have remained the same throughout till the Bill emerges from the House as an Act of the Legislature, for they do not form part of the Bill and are not voted upon by the members. The Statements of Objects and Reasons appended to the Bill should be ruled out as an aid to the construction of a statute.

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Parliamentary History – Facts and circumstances

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss how is the history of an enactment used to interpret a statute?

Parliamentary History – Facts and circumstances:

The surrounding circumstances and situations which led to the passing of the Act can be considered for the purpose of construing a statute. The Court has now veered to the view that legislative history within circumspect limits may be consulted by Courts in resolving ambiguities.

It has already been noticed that the Court is entitled to take into account “such external or historical facts as may be necessary to understand the subject-matter of the statute”, or to have regard to “the surrounding circumstances” which existed at the time of passing of the statute. Like any other external aid, the inferences from historical facts and surrounding circumstances must give way to the clear language employed in the enactment itself.

In order to arrive at the intention of the legislature, the state of law and judicial decisions antecedent to and at the time the statute was passed are material matters to be considered. Evidence of matters relating to such surrounding circumstances and historical investigation of which judicial note can be taken by court, including reports of select committees and statements of objects and reasons, can be resorted to for ascertaining such antecedent law and for determining the intention of the legislature.

Moreover, plain words in the statute cannot be limited by any considerations of policy. An erroneous assumption by the legislature as to the state of the law has no effect and would not become a substantive enactment. In the construction of a statute the worst person to construe it is the person who is responsible for its drafting. Courts sometimes make a distinction between legislative debates and reports of committees and treat the latter as a more reliable or satisfactory source of assistance. The speeches made by the members of the House in the course of the debate are not admissible as external aids to the interpretation of statutory provisions.

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External aids used for interpretation of statute

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss about external aids used to interpret a statute.

External aids used for interpretation of statute:

Other than the internal aid to interpretation which are part of a statute itself there are other aids which are not part of the statute. These are known as external aid to interpretation. The court can consider recourse outside the Act. Recourse to external aid is justified only to well-recognized limits.

Where the words of an Act are clear and unambiguous, no resource to extrinsic matter, even if it consists of the sources of the codification, is permissible. But where it is not so, the Court can consider, apart from the internal aids, the prior events leading up to the introduction of the Bill, and subsequent events from the time of its introduction until its final enactment like the legislation, history of the Bill, Select Committee reports, etc.

The history of legislation, the enactments which are repealed, the parliamentary debates, dictionary commentaries etc. are the external aids to construction. It is important to point out here that the legislature adopts the device of making a statute by “reference” and by “incorporation”. When the statute is incorporated in another statue by the legislature, the incorporated statute or statute referred to therein is external aid for interpreting the statute in question.

There has been a controversy in India regarding the use of parliamentary debates for interpreting the Constitution. It is now settled that the court can always refer to the debates in the legislature while interpreting the statute to know the intention if there is a doubt about the provision. More often than not, a provision is introduced in the Bill and after some debate either it is altered or modified or amended before finally it receives the assent of the President.

Where the Legislature has not chosen to define the expression the court of law have, therefore, to fall back upon other aids for finding the intention of the Legislature; for example by reference to the context and object and purpose of the legislative measure in question. The court may further have resort to dictionaries and judicial interpretation of this award as used in other statutes; but it cannot be denied that these methods are not as satisfactory as a precise and clear legislative definition in the statute itself.

Judgments:

B. Prabhakar Rao v. State of Andhra Pradesh 1985 Suppl (2) SCR 573

In B. Prabhakar Rao v. State of Andhra Pradesh, the observations are:- "Where internal aids are not forthcoming, we can always have recourse to external aids to discover the object of the legislation. External aids are not ruled out. This is now a well settled principle of modern statutory construction. Thus 'Enacting History' is relevant: "The enacting history of an Act is the surrounding corpus of public knowledge relative to its introduction into Parliament as a Bill, and subsequent progress through, and ultimate passing by, Parliament. In particular it is the extrinsic material assumed to be within the contemplation of Parliament when it passed the Act." Again "In the period immediately following its enactment, the history of how enactment is regarded in the light of development from time to time."

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Internal aids for interpretation of statute

 Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss about internal aids used to interpret a statute.

Internal aids for interpretation of statute:

The preamble, title, heading, marginal notes, punctuation, illustrations, definitions, proviso, explanation etc. are considered as internal aids for interpretation of statute. All these things are incorporated in a bare Act.

Preamble of the Act:

Preamble is a recital to the intent of the legislature as it enumerates the mischief to be remedied. By a long catena of decisions, it is now well settled that preamble is not a part of enactment. In India, it is well settled in the field of constitutional law that the preamble to the Constitution of India and Directive Principles of State Policy are the guidelines for interpreting the constitutional provisions.

Whenever there is a reasonable doubt about the provisions in the statute, it is permissible to refer to the heading of the provision for interpreting the section.

Marginal Notes:

Insofar as marginal notes inserted in the legislation itself are concerned, they are also treated as guidelines for interpreting the statutes. In the case of the Indian Constitution, the marginal notes have been enacted by the Constituent Assembly and hence they may be referred to for interpreting the Articles of the Constitution. If the words used in the enactment are clear and unambiguous, the marginal note cannot control the meaning, but in case of ambiguity or doubt, the marginal note may be referred.

Illustrations

In many statutes, especially, penal statutes, enacted in the olden times, it is the practice of the legislature to give illustrations. The illustrations cannot be used either to cut down or extend the scope of the section.

Long title and short title:

It is now settled that Long Title of an Act is a part of the Act and is admissible as an aid to its construction. The long title which often precedes the preamble must be distinguished with the short title. The long title is taken along with the preamble or even in its absence is a good guide regarding the object, scope or purpose of the Act. The short title being only an abbreviation for purposes of reference is not a useful aid to construction.

Headings:

The view is now settled that the Headings or Titles prefixed to section or group of sections can be referred to in construing an Act of the Legislature. But conflicting opinions have been expressed on the question as to what weight should be attached to the headings. Only in the case of ambiguity or doubt the heading or sub-heading may be referred to as an aid in construing the provision but even in such a case it could not be used for cutting down the wide application of the clear words used in the provision. The heading prefixed to section or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute but they may explain ambiguous words.

Punctuations

‘Punctuation’ means to mark with points and to make points with usual stops. It is the art of dividing sentences by point or mark. Punctuation is considered as a minor element in the construction of statutes. Text book writers comment that English Court pay little or no attention to punctuation while interpreting the statutes. The same is not the cases in Indian Courts. If a statute in question is found to be carefully punctuated, punctuation may be resorted for the purpose of construction.

Schedules:

Another important internal aid is the schedule or schedules appended to a statute. It forms part of the statute and it can be interpreted independently as well as with the aids of interpretation of statutory provision.

Illustrations:

Illustrations appended to a section form part of the statute and although forming no part of the section, are of relevance and value in the construction of the text of the section and they should not be readily rejected as repugnant to the section.

It would be the very last resort of construction to make this assumption. The great usefulness of the Illustrations which have, although not part of the sections, been expressly furnished by the Legislature as helpful in the working and application of the statute should not be thus impaired.

Definitions or interpretation clauses:

Definitions in an Act are to be applied only when there is nothing repugnant in the subject or context, and this is so even if such a qualifying provision is not expressly stated by the legislature. The definition must ordinarily determine the application of the word or phrase defined; but the definition itself must first be interpreted before it is applied. When the definition of a word gives it an extended meaning, the word is not to be interpreted by its extended meaning every time it is used, for the meaning ultimately depends on the context; and a definition clause does not, ordinarily enlarge the scope of the Act.

Proviso:

As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule.

The proviso is subordinate to the main section. A proviso does not enlarge an enactment except for compelling reasons. Sometimes an unnecessary proviso is inserted by way of abundant caution. A proviso may sometimes contain a substantive provision.

Explanation:

It does not ordinarily enlarge the scope of the original section which it explains, but only makes the meaning clear beyond dispute.

Non-obstante clause:

A section sometimes begins with the phrase ‘notwithstanding anything contained etc.’ Such a clause is called a non obstante clause and its general purpose is to give the provision contained in the non obstante clause an overriding effect in the event of a conflict between it and the rest of the section.

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Schedules

 Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss use of Schedules in interpretation of statutes.

Schedules:

Another important internal aid is the schedule or schedules appended to a statute. It forms part of the statute and it can be interpreted independently as well as with the aids of interpretation of statutory provision.

Schedules form part of a statute. They are at the end and contain minute details for working out the provisions of the express enactment. The expression in the schedule cannot override the provisions of the express enactment.

If the Act says that the schedule is to be used for a certain purpose and the heading of the part of the schedule in question shows that it is prima facie at any rate devoted to that purpose, then the Act and the schedule must be read as if the schedule were operating for that purpose only. If the language of a clause in the schedule can be satisfied without extending it beyond for a certain purpose, in spite of that, if the language of the schedule has in its words and terms that go clearly outside the purpose, the effect must be given by them and they must not be treated as limited by the heading of the part of the schedule or by the purpose mentioned in the Act for which the schedule is prima facie to be used. One cannot refuse to give effect to clear words simply because prima facie they seem to be limited by the heading of the schedule and the definition of the purpose of the schedule contained in the Act.

In Ramchand Textile v. Sales Tax Officer, A.I.R. 1961, All. 24, the Allahabad High Court has held that, if there is any appearance of inconsistency between the schedule and the enactment, the enactment shall prevail. If the enacting part and the schedule cannot be made to correspond, the latter must yield to the former.

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Non-obstante clause

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss how is non-obstante clause useful in interpretation of statute and its construction?

Non-obstante clause:

A section sometimes begins with the phrase ‘notwithstanding anything contained etc.’ Such a clause is called a non obstante clause and its general purpose is to give the provision contained in the non obstante clause an overriding effect in the event of a conflict between it and the rest of the section. Thus, there is generally a close relation between the non obstante clause and the main section and in case of ambiguity the non obstante clause may throw light on the scope and ambit of the rest of the section. If, however, the enacting part is clear and unambiguous, its scope cannot be whittled down by the use of the non obstante clause.

This phrase i.e. ‘notwithstanding anything in’ is in contradiction to the phrase ‘subject to’.

Judgments:

Aswini Kumar v. Arabinda Bose 1953 SCR 1 : AIR 1952 SC 369 : 1952 SCJ 568

The Supreme Court observed that: “the non obstante clause can reasonably be read as overriding ‘anything contained’ in any relevant existing law which is inconsistent with the new enactment, although the draftsman had primarily in his mind a particular type of law as conflicting with the new Act. The enacting part of a statue must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously; for, even apart from such a clause, a later law abrogates earlier laws clearly inconsistent with it. While it may be true that the non obstante clause need not necessarily be co-extensive with the operative part, there can be no doubt that ordinarily there should be a close approximation between the two.”

 It was further observed that: “It should first be ascertained what the enacting part of the section provides on a fair construction of the words used according to their natural and ordinary meaning, and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new enactment.”

Kanwar Raj v. Pramod [1955] 2 SCR 977 : AIR 1956 SC 105 : 1956 SCJ 134

It was held: The operative portion of the section which confers power on the Custodian to cancel a lease or vary the terms thereof is unqualified and absolute, and that power cannot be abridged by reference to the provision that it could be exercised ‘notwithstanding anything contained in any other law for the time being in force.’ This provision is obviously intended to repel statutes conferring rights or leases, and cannot prevail as against them and has been inserted ‘ex abundant cautela’. It cannot be construed as cutting down the plain meaning of the operative portion of the section.

The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously; for even apart from such clause, a later law abrogates earlier laws clearly inconsistent with it.

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Explanation

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss how is explanation useful in interpretation of statute and its construction?

Explanation:

IN certain provisions of an Act explanations may be needed when doubts arise as to the meaning of the particular section. Explanations are given at the end of each section and it is part and parcel of the enactment.

The object of an Explanation to a statutory provision is-

(a) to explanation the meaning and intendment of the Act itself,

(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve,

(c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful,

(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the court in interpreting the true purport and intendment of the enactment, and

(e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same.

It does not ordinarily enlarge the scope of the original section which it explains, but only makes the meaning clear beyond dispute.

An explanation, normally, should be so read as to harmonise with and clear up any ambiguity in the main section and should not be so construed as to widen the ambit of the section. It is also possible that an explanation may have been added ex abundanti cautela to allay groundless apprehension.

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Proviso

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss how is proviso useful in interpretation of statute and its construction?

Proviso:

A proviso merely carves out something from the section itself. A proviso is a subsidiary to the main section and has to be construed in the light of the section itself. Ordinarily, a proviso is intended to be part of the section and not an addendum to the main provisions. A proviso should receive strict construction. The court is not entitled to add words to a proviso with a view to enlarge the scope.

“When one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject-matter of proviso”. In the words of Lord Macmillan: “The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to the case”.

A distinction is said to exist between the provisions worded as ‘proviso’, ‘exception’ or ‘saving clause’. ‘Exception’ is intended to restrain the enacting clause to particular cases; ‘proviso’ is used to remove special cases from the general enactment and provide for them specially; and ‘saving clause’ is used to preserve from destruction certain rights, remedies or privileges already existing.

The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. Normally, a proviso does not travel beyond the provision to which it is a proviso. It craves out an exception to the main provision to which it has been enacted as a proviso and to no other.

The proviso is subordinate to the main section. A proviso does not enlarge an enactment except for compelling reasons. Sometimes an unnecessary proviso is inserted by way of abundant caution. A proviso may sometimes contain a substantive provision.

A construction placed upon a proviso which brings it into general harmony with the terms of section should prevail. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment.

Judgments

Mullins v. Treasury of Survey 1885 (5) QBD 170 : AIR 1961 SC 1596 : AIR 1965 SC 1728

As was stated in Mullins v. Treasury of Survey, when one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject-matter of the proviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate.

State of Punjab & Anr. v. Ashwani Kumar & Ors, AIR 2009 SC 186

"If the language of the enacting part of the statute does not contain the provisions which are said to occur in it you cannot derive these provisions by implication from a proviso."

S. Sundaram Pillai v. V.R. Pattabiraman AIR 1985 SC 582 : (1985) 1 SCC 591

Coming to the interpretation of proviso and explanation, we may refer to a well known judgment of the Supreme Court in S. Sundaram Pillai v. V.R. Pattabiraman. After exhaustively referring to the earlier case law on scope and interpretation of a proviso as well as explanation to a section, the Supreme Court laid down as under: A proviso may serve four different purposes:

(1) qualifying or excepting certain provisions from the main enactment;

(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;

(3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and

(4) it may be used merely to act as an options addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.

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Definitions or interpretation clauses

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss how are definitions useful in interpretation of statute and its construction?

Definitions or interpretation clauses:

It is common to find in statutes “definitions” of certain words and expressions used elsewhere in the body of the statute. The object of such a definition is to avoid the necessity of frequent repetitions in describing all the subject-matter to which the word or expression so defined is intended to apply. A definition section may borrow definitions from an earlier Act and definitions so borrowed need not be found in the definition section but in some provisions of the earlier Act. The definition of the words given must be construed in the popular sense. Internal aid to construction is important for interpretation.

The definition section may itself be ambiguous and may have to be interpreted in the light of the other provisions of the Act and having regard to the ordinary connotation of the word defined. A definition is not to be read in isolation. It must be read in the context of the phrase which it defines, realising that the function of a definition is to give precision and certainty to a word or a phrase which would otherwise be vague and uncertain but not to contradict or supplement it altogether.

In construing a provision of law as to its mandatory nature, the intention of the legislature and the consequences that would flow from the construction thereof one way or the other have to be kept in view. Definitions do not take away the ordinary and natural meaning of the words, but as used:

(i) to extend the meaning of a word to include or cover something, which would not normally be covered or included; and

(ii) to interpret ambiguous words and words which are not plain or clear.

The definition must ordinarily determine the application of the word or phrase defined; but the definition itself must first be interpreted before it is applied. When the definition of a word gives it an extended meaning, the word is not to be interpreted by its extended meaning every time it is used, for the meaning ultimately depends on the context; and a definition clause does not, ordinarily enlarge the scope of the Act.

A court should not lay down a rigid definition and crystallize the law, when the legislature, in its wisdom has not done so. It is ordinarily unsafe to seek the meaning of words used in an Act, in the definition clause of other statutes even when enacted by the same legislature; but where a word or phrase used in an Act, is used in another Act which is in pari material and the word is not defined in that other Act, then the word may be given the meaning given in the first Act.

Definitions in an Act are to be applied only when there is nothing repugnant in the subject or context, and this is so even if such a qualifying provision is not expressly stated by the legislature. It goes without saying that interpretation of a word or expression must depend on the text and the context. The resort to the word ‘includes’ by the legislature often shows the intention of the legislature that it wanted to give extensive and enlarged meaning to such expression. Sometimes, however, the context may suggest that word ‘includes’ may have been designed to mean ‘means’. The setting, context and object of an enactment may provide sufficient guidance for interpretation of the word ‘includes’ for the purposes of such enactment.

The words ‘that is to say’ are not words of restriction. They are words of illustration, and the instances that follow operate as a guide for interpretation.

If the words ‘means’ or ‘means and includes’ are used it affords a exhaustive explanation of the meaning which, for the purposes of the Act, must inevitably be attached to those words or expressions. If the word ‘denotes’ is used it has the same significance as ‘includes’.

If the word ‘deemed to be’ is used it creates a fiction and a thing is treated to be that which in fact it is not.

If a special definition of a word or phrase is set out in an Act, the meaning of this word or phrase as given in such definition should normally be adopted in the interpretation of the statute. In the absence of such a definition, the General Clauses Act, 1897 which enacted the statute should be referred to. If the word is not defined there also, the rules of interpretation would come into play.

Judgments:

Dilworth v. Stamps Commissioners 1899 AC 99 : (1895-99) All ER Rep Ext 1576 (PC)

The following observations of Lord Watson in Dilworth v. Stamps Commissioners, in the context of use of “include” as a word of extension has guided this Court in numerous cases: “... But the word ‘include’ is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to ‘mean and include’, and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.”

South Gujarat Tiles Manufacturers Assn. V. State of Gujarat, (1976) 4 SCC 601 : 1977 SCC (L&S) 15

The meaning of the said expression has been considered by a three Judge Bench of this Court in South Gujarat Tiles Manufacturers Assn. V. State of Gujarat, wherein this Court has observed: “Now it is true that ‘includes’ is generally used as a word of extension, but the meaning of a word or phrase is extended when it is said to include things that would not properly fall within its ordinary connotation.”

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Illustrations

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss how are illustrations useful in interpretation of statute and its construction?

Illustrations:

Illustrations appended to a section form part of the statute and although forming no part of the section, are of relevance and value in the construction of the text of the section and they should not be readily rejected as repugnant to the section. Illustrations in enactment provided by the legislature are valuable aids in the understanding the real scope.

It would be the very last resort of construction to make this assumption. The great usefulness of the Illustrations which have, although not part of the sections, been expressly furnished by the Legislature as helpful in the working and application of the statute, should not be thus imparied.

Judgments:

Sopher v. Administrator General of Bengal, AIR 1944 PC pp.67, 69

In interpreting section 113 of the Indian Succession Act, 1925 and in deciding that 'later' bequest to be valid must comprise of all the testator's remaining interest, if the legatee to the later bequest is not in existence at the time of testator's death, and that a conferment of a life estate under such a bequest is not valid, the Privy Council took the aid of Illustrations appended to that section. Viscount Maugham pointed out: "Illustrations 2 and 3 would seem to show - What is not clear from the language of the section - that however complete may the disposition of the will, gift after the prior bequest may not be a life interest to an unborn person for that would be a bequest to a person not in existence at the time of testator's death of something less than the remaining interest of the testator."

Lalla Ballanmal v. Ahmad Shah, 1918 P.C. 249

“Illustrations attached to sections are part of the statute and they are useful so far as they help to furnish same indication of the presumable intention of the legislature. An explanation is at times appended to a section to explain the meaning of words contained in the section. It becomes a part and parcel of the enactment. But illustrations cannot have the effect of modifying the language of the section and they cannot either curtail or expand the ambit of the section which alone forms the enactment. The meaning to be given to an ‘explanation’ must depend upon its terms, and ‘no theory of its purpose can be entertained unless it is to be inferred from the language used”

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