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to their natural and ordinary meaning, and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new enactment.”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.

Thanks for reading till the end. Please share this blog.

#InterpretationOfStatutes #StudyHelp #Notes #LawNotes #GeneralClausesAct #Bharat #India

List of Reference

Read More.

================

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.

Thanks for reading till the end. Please share this blog.

#InterpretationOfStatutes #StudyHelp #Notes #LawNotes #GeneralClausesAct #Bharat #India

List of Reference

Read More.

================

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.

Thanks for reading till the end. Please share this blog.

#InterpretationOfStatutes #StudyHelp #Notes #LawNotes #GeneralClausesAct #Bharat #India

List of Reference

Read More.

================

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.”

Thanks for reading till the end. Please share this blog.

#InterpretationOfStatutes #StudyHelp #Notes #LawNotes #GeneralClausesAct #Bharat #India

List of Reference

Read More.

================

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”

Thanks for reading till the end. Please share this blog.

#InterpretationOfStatutes #StudyHelp #Notes #LawNotes #GeneralClausesAct #Bharat #India

List of Reference

Read More.

================

Punctuations

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 punctuations useful in interpretation of statute and its construction?

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.

Punctuation is disregarded in the construction of a statute. Generally there was no punctuation in the statutes framed in England before 1849. Punctuation cannot control, vary or modify the plain and simple meaning of the language of the statute.

However, if a statute is revised and re-enacted but the section under construction in the revised statute is brought in identical terms as in the old statute except as to variation of some punctuation, that in itself will not be indicative of any intention on the part of the Legislature to change the law as understood under the old section.

Judgments:

Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC pp.369, 383

B. K. Mukherjee, J., in Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC pp.369, 383 expressed himself as follows: “Punctuation is after all a minor element in the construction of a statute, and very little attention is paid to it by English Courts. It seems, however, that in the vellum copies printed since 1850, there are some cases of punctuation, and when they occur they can be looked upon as a sort of contemporancea expositio. When a statute is carefully punctuated and there is doubt about its meaning, a weight should undoubtedly be given some cases, but it cannot certainly be regarded as a controlling element and cannot be allowed to control the plain meaning of a text.”

A. K. Gopalan v. State of Madras, AIR 1950 SC pp.27, 45

In Gopalan’s case, Kania CJ, in construing Article 22(7)(a) of the Constitution, referred to the punctuation and derived assistance from it in reaching his conclusion that Parliament was not obliged to prescribe both the circumstances under which, the class or classes of cases, in which a person may be detained for a period longer than three months, without obtaining the opinion of the Advisory Board and that Parliament on a true construction of the clauses could prescribe either or both. It would appear, with respect to modern statutes, that if the statute in question is found to be carefully punctuated, punctuation, though a minor element, may be resorted to for purposes of construction.

Mohd. Shabbir v. State of Maharashtra, AIR 1979 SC pp.564, 565 : (1979) 1 SCC 568 : 1979 SCC (Cri) 356

An illustration of the aid derived from punctuation may be furnished from this case where section 27 of the Drugs and cosmetics Act, 1940 came up for construction. By this section whoever 'manufactures for sale, sells, stocks or exhibits for sale or distributes' a drug without a licence, is liable for punishment. In holding that mere stocking is not an offence within the section, the Supreme Court pointed out the presence of comma after 'manufactures for sale' and 'sells' and absence of any comma after 'stocks'. It was, therefore, held that only stocking for sale could amount to offence and not mere stocking.

Dr. M. K. Salpekar v. Sunil Kumar Shamsunder Chaudhari AIR 1988 SC 1841

In this case the court construed clause 13 (3) (v) of the C.P. and Berar Letting of Houses and Rent Control Order. This provision permits ejectment of a tenant on the ground that "the tenant has secured alternative accommodation, or has left the area for a continuous period of four months and does not reasonably need the house." In holding that the requirement that the tenant ‘does not reasonably need the house’ has no application when he 'has secured alternative accommodation' the court referred and relied upon the punctuation comma after the words alternative accommodation.

Thanks for reading till the end. Please share this blog.

#InterpretationOfStatutes #StudyHelp #Notes #LawNotes #GeneralClausesAct #Bharat #India

List of Reference

Read More.

================

Marginal notes

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 marginal notes useful in interpretation of statute and its construction?

Marginal notes:

Marginal notes are the notes that are printed at the side of the section in an Act and it summarizes the effect of the section. They are not part of the statute. So they must not be considered. But if there is any ambiguity they may be referred only as an internal aid to the construction.

In England, the disposition of the Court is to disregard the marginal notes. In our country the Courts have entertained different views. Although opinion is not uniform, the weight of authority is in favour of the view that the marginal note appended to a section cannot be used for construing the section.

In the older statutes marginal notes were not inserted by the legislature and hence were not part of the statute and could not be referred to for the purpose of construing the statute. If they are also enacted by the legislature they can be referred to for the purpose of interpretation. 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 to.

There can be no justification for restricting the contents of the section by the marginal note. The marginal note cannot affect the construction of the language used in the body of the section if it is otherwise clear and ambiguous. The marginal heading cannot control the interpretation of the words of the section particularly when the language of the section is clear and unambiguous. Where the language is clear and can admit of no other meaning, the marginal note cannot be read to control the provisions of the statute. Marginal notes in an Indian statute, as in an Act of Parliament cannot be referred to for the purpose of construing the statute. Although a marginal note may not be determinative of the content of the provision, it may act as an intrinsic aid to construction.

Marginal notes appended to the Articles of the Constitution have been held to constitute part of the Constitution as passed by the Constituent Assembly and therefore, they have been made use of in consulting the Articles, e.g. Article 286, as furnishing prima facie, “some clue as to the meaning and purpose of the Article”.

Judgments:

Thakurain Balraj Kunwar v. Rao Jagpatpal Singh (1904) ILR 26 All 393 (PC): In this case it was observed that it is well settled that marginal notes to the sections of an Act of Parliament cannot be referred to for the purpose of construing the Act.

In Wilkes v Goodwin, the Court held that the side notes are not part of the Act and hence marginal notes cannot be referred.

The Privy Council in Balraj Kumar v. Jagatpal Singh, (1904) 26 All. 393, has held that the marginal notes to the sections are not to be referred to for the purpose of construction.

The Supreme Court in Western India Theatres Ltd. v. Municipal Corporation of Poona, (1959) S.C.J. 390, has also held that a marginal note cannot be invoked for construction where the meaning is clear.

Thanks for reading till the end. Please share this blog.

#InterpretationOfStatutes #StudyHelp #Notes #LawNotes #GeneralClausesAct #Bharat #India

List of Reference

Read More.

================