CHAPTER 1 

Introduction   

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CHAPTER 1

INTRODUCTION

1 Scope of Research

2 Object of Research

3 Significance of Research

4 Hypothesis

5 Design, Research Method

6 Meaning of Interpretation and Construction

6.1 Interpretation

6.2 Construction

6.3 Mimansa

6.4 Meaning of Statute

6.5 Meaning of Judge

7 Object of Interpretation

8 Ambiguity

9 Application of various modes of interpretation

INTRODUCTION:

The judiciary is one of the principal organs of a democratic society.

Judge has to play very sensitive role in a democracy. The tasks imposed

upon him are bridging the gap between law and society, and protecting

constitution and democracy.

All courts perform a dual function; they resolve disputes and they

regulate the future. A court’s decision purports to justify the result in the

controversy before it and to guide the behaviour of the others – whether

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private individuals, corporate officers or public officials – whom

someday may wish to avoid similar controversy.1

The law would less often be reshaped in adjudication by the

interpretation of prior law if the law employed in resolving the dispute

was clear to the public and the explanation given in the judicial opinion

kept in clear. But such clarity would require the law to be static. For

example, a court could not take changing social circumstances into

account in reaching its holding without engaging in interpretation that

might entail reshaping the law if the law were clear static, a day in court

would be important only in sorting out factual matters; what happened,

when, to whom and so on.2

It is obvious that in contemporary India such a steady state of

affairs is impossible. In our system the law is much too complex to be

very clear even to specialists, and almost surely must remain so. The law

must also change overtime. The one way that it changes is through the

process of interpretation. The judiciary cannot cling to age-old notions of

any underlying philosophy behind interpretation. It has to move with the

times.

The rules of interpretation may well rank as an important branch of

what is called the adjective law. The part that these rules play in the

administration of justice is by no means less important than the rules of

procedure and rules of evidence. Primarily the courts have to deal with

three things: (1) Laws dealing with rights and liabilities, (2) Facts which

establish such rights and liabilities in particular cases and (3) the

machinery of administering the law and of ascertaining the facts.

                                                            1 Harry H. Wellington: Interpreting the Constitution – First Indian Reprint 2005, p. 3 2 Harry H. Wellington: Interpreting the Constitution, Ibid, p. 5

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The main duty of the court is, to deal with the substantive law, with

which they are supplied by the State, and with the facts, with which the

parties proposed to supply that. To assist them in respect of the greater

duty, there is the law of evidence. To assist them as regards the former

duty, there are the rules of interpretation. Thus, the rules of interpretation

stand side-by-side with the rules of evidence. Yet, the rules of

interpretation have scarcely received that degree of attention as to the

rules of evidence.3 One of the reasons is a conception that the judges

know to interpret the law without any hard and fast rules to guide them.

No doubt, as a matter of fact, a well trained judge hits upon the

proper interpretation of a passage of law, without thinking of any rules of

interpretation, which may exist on a subject. Similarly, a man with

common sense argues rightly without any knowledge of logic. No one,

however, will say that logic is uncalled for, because many men reason

rightly, without any consciousness of logic. No more can it be said that

rules of interpretation are unnecessary, because good Judges interpret law

properly, without thinking of any rules on the subject.4

In cases where a dispute arises concerning the meaning of a

statutory provision, it falls to the courts to render authoritative

pronouncements as to the meaning of the words in question. An analysis

of the workloads of higher courts in India indicate that they spent

significant amount of their time in hearing cases that involve questions

about the proper meaning of statutory provisions. Since so much time is

wasted in interpreting statutory language, it would be advisable to

develop a well defined and well understood uniform process of

interpretation.                                                             3 K.L.Sarkar’s Mimansa Rules of Interpretation – Tagore Law Lectures 1905– Third

Edition, p.33 4 K.L.Sarkar’s Mimansa Rules of Interpretation, Ibid, p. 33.

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This research work is intended to focus on the various principles of

interpretation which are being adopted by the Courts as well as the

mimansa rules of interpretation during the process of administering the

justice to the people. It also includes the case studies as well as analytical

study of the principles of interpretation of the statutes.

1 SCOPE OF RESEARCH:

The scope of research includes the study of three basic rules of

interpretation which are based on common law legal system. The origin

of these principles and its effectiveness in deciding cases relating to

various forms of legislations like Constitution, Penal, Fiscal etc. The

research may also include the effectiveness of mimansa rules of

interpretation which were being utilized in ancient India under the Hindu

philosophy. All the principles of interpretation of statutes will be

analytically studied.

2 OBJECT OF RESEARCH:

Judicial decisions affect a great many people including parties to

the litigation because the law often becomes what Judges say it is. The

decisions of the Supreme Court, for example, are famously important.

The Supreme Court has power to Over Rule even the most deliberate and

popular decisions of other Departments of the Government if it believes

that they are contrary to the Constitution and it therefore has the last word

on whether and how the States may execute murderers or prohibits

certain things etc.

In a trivial sense Judges unquestionably “make new Law” every

time they decide an important case. They announce a Rule or Principle or

Qualification or Elaboration that has never been officially declared

before.

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Earlier the most popular opinion was that Judges should always, in

every decision, follow the Law rather than try to improve upon it. They

may not like the Law they find but they must enforce it. According to this

procure opinion, some Judges do not accept that vice constraint; covertly

or even nakedly, they bend the Law to their own purposes or politics or

thinking. They are labeled as bad Judges, the usurpers and destroyers of

the democracy. Of course, some people take the contrary view that

Judges should try to improve the Law whenever they can.

It is said that the Judges who enforce the Law as it is with no care

for the misery or injustice or inefficiency that follows are termed as

Mechanical Judges. Whereas the Judges who try to improve and to do

Justice by bending Law are termed as Progressive Judges.

Sometimes, the Judge has no option but to exercise a discretion to

make new Law by filling gaps, where a Law is silent and making it more

precise, where it is vague.

The exercise carried out by the Judges for interpreting provisions

of a given Statute is a process of interpretation of a particular Statute. On

analysis of the various judgments of the Supreme Court as well as various

High Courts of India and the judgments of the Foreign Countries it

appears that the different rules of interpretation of Statute have been

made use of in a different situations and the context before the Court.

There are no straight jacket rules applied by the Courts. It seems that

there is some need of deliberation for developing a well defined and well

understood uniform process of interpretation. With this object this

research work is being undertaken.

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3 SIGNIFICANCE OF RESEARCH:

There seems to be general suspicion or fear that Courts that adopt a

purpose finding approach to interpretation are prone to over step the

bounds of legitimate law making and that individual judges may be

tempted to refine the meaning of statutes to accord their own view of

acceptable social purposes or objections.

At the same time statutory interpretation can never be wholly

objective and courts cannot avoid some degree of law making in their role

as participants in the process of refining and applying statutory policies.

It is aimed through this research to suggest some sort of solution or

to provide well defined and well understandable uniform principles of

interpretation which may include mimansa rules of interpretation with

that of principles of interpretations based on common law legal system.

4 HYPOTHESIS:

The main principles of interpretation of statues which are being

adopted by the Courts i.e. literal meaning rule, golden rule and mischief

rules are being made applicable in a given situation differently by

different Judges. There is no uniformity in application of these principles.

Sometimes literal meaning rules have been discarded though it is

perfectly applicable in a given situation. Whereas sometimes without any

valid reasons Courts have denied to apply golden rules or mischief rules

in a given situation and has adhered to the literal meaning rules. On

analysis of various Judgments of the various High Courts and the

Supreme Court of India and that of Foreign Courts it appears that there is

no well defined and well developed uniform process of interpretation.

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During this research work various aspects relating to the process of

interpretation will be tested.

5 DESIGN, RESEARCH METHOD:

The doctrinal method of research will be adopted in this research

work. Various cases from the International level as well as decisions of

the various High Courts and Supreme Court of India and other Journals

dealing with the principles of interpretation of statutes will be analytically

studied. It would also be conducted with an informal, explorative and

evaluative in nature.

6 MEANING OF INTERPRETATION AND CONSTRUCTION:

6.1 INTERPRETATION:

Interpretation is a familiar feature of law and legal practices.

Interpretation is an important aspect of the practice of law. Interpretation

has very important role in justice administration in the sense that it helps

the legal system “understand” the law.

Interpretation knows no disciplinary boundaries. From philosophy

to psychology, anthropology to natural sciences, interpretation plays a

central role in the explanation of human action. Interpretation makes

understanding possible of the subject.

The word “interpretation” itself is by no means free from

ambiguity. It may be used in its widest sense to indicate the creative

activities of Judges, in so far as they may, in the exercise of their

functions, extend, restrict or modify the operation of a rule of law which

is expressed in statutory form and when so employed it is usually referred

to as “extensive” interpretation. In its narrower sense the word means the

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explanation by the Judges of the meaning of the words or phrases

contained in a statute.

Interpretation is the art of finding out the true sense of any form or

words; i.e. the sense which their author intended to convey, and of

enabling other to drive from them the same idea which the author

intended to convey. Interpretation only takes place if the text conveys

some meaning or other.5

By interpretation is meant the process by which the Courts seek to

ascertain the meaning of the legislature through the medium of the

authoritative forms in which it is expressed.6 The process by which a

Judge or indeed any person, lawyer or layman, who has occasion to

search for the meaning of a statute, constructs from the words of a statute

book a meaning which he either believes to be that of the legislature, or

which he proposes to attribute to it, is called interpretation.7 Interpretation

is the process by which the courts determine the meaning of a statutory

provision for the purpose of applying it to the situation before them.8

“Interpretation”, is often spoken of as if it were nothing but the

search and the discovery of meaning which, however obscure and latent,

had none the less a real and ascertainable pre-existence in the legislator’s

mind.9 The process is, indeed, that at times, but it is often something

more. The fact is that the difficulties of so-called interpretation arise

when the legislature has had no meaning at all; when the question which

is raised on the statute never occurred to it; when what the judges have to

do is, not to determine what the legislature did mean on a point which                                                             5 Swarup Jagdish: Legislation and Interpretation – p. 16 6 Salmond: Jurisprudence 12th Edition – p. 133 7 Gray: The Nature and the Sources of Law IInd Edition – p. 176. 8 Cross Statutory Interpretation, 2nd Edition, p. 30 9 Benjamin N. Cardozo, The Nature of the Judicial Process, 5th Indian Reprint 2004,

p. 14

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was present to its mind, but to guess what it would have intended on a

point not present to its mind, if the point had been present.10

Interpretation is the topic of the application of law. It is a process

of search, comparison and little more.11 The process of interpretation may

be found as not discovery but creation.

It is said to be either ‘legal’ which rests on the same authority as

the law itself, or ‘doctrinal’, which rests upon its intrinsic reasonableness.

Legal interpretation’ may be either ‘authentic’, when it is expressly

provided by the legislator’, [as in what are called the ‘interpretation

clauses’ in a modern Act of Parliament] or ‘usual’ when it is derived from

unwritten practice. ‘Doctrinal interpretation’ may turn on the meaning of

words and sentences, when it is called ‘grammatical’, or on the intention

of the legislator, when it is described as ‘logical’.

When logical interpretation stretches the words of a statute to cover

its obvious meaning it is called ‘extensive’, when on the other hand, it

avoids giving full meaning to the words, in order not to go beyond the

intention of the legislator; it is called ‘restrictive’.12

Except where there is ‘authentic interpretation’ by the same

authority that enacts a law, the continental codes (French) contemplate

that the judge shall have full liberty of interpretation, but only for the case

in hand. No one else is bound by his interpretation and he himself need

not follow it another time. Until there is authentic interpretation, the point

remains open for other cases.13

                                                            10 Gray: Nature and Sources of Law, as referred to by Benjamin N. Cardozo in The

Nature of the Judicial Process, Ibid, p. 15 11 Benjamin N. Cardozo, Ibid, p. 20 12 Holland on Jurisprudence, Thirteenth Edi., Indian Economy Reprint, 2011, p. 425 13 Roscoe Pound – Jurisprudence, Vol.III , pp. 424-425

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Interpretation is also an agency of growth of the traditional element

of law in that it is one of the points of contact between law and morals.14

A point of contact between law and morals is to be found in

interpretation. As an agency of growth, interpretation has to do with the

imperative element of a system of law.

According to Anglo-American thought, interpretation means

finding the content of a written (i.e. enacted) rule.

Common law theory of interpretation is one of the fixing the

content of precepts definitely formulated by enactment for definite

special situations.15

The law applicable to the facts of a dispute may be contained in an

Act of Parliament, and knowing the law then involves interpreting a

legislative text.16 Frequently the process of finding the law involves

choice from among competing texts or selection from competing

analogies urged by the respective parties as the grounds of decision. Here,

as one might put it, there is to be an inductive selection, or, the process

may involve selection by logical development of authoritative principles

or conceptions. Then there is, one might say, a deductive selection.17

Interpretation has been thought of as including the process of

finding or making rules for new cases, or reshaping them for unusual

cases, which has just been considered. This is called “interpretation” by a

dogmatic fiction because n the analytical theory of the last century the

law was complete and all cases were at least covered by the logical

                                                            14 Roscoe Pound – Jurisprudence Ibid, p. 467-468 15 Roscoe Pound: Jurisprudence, Vol. I, 1959 Edition, p. 166 16 Dias – jurisprudence, 5th Edition, 1994, p. 166 17 Roscoe Pound: Jurisprudence ,Vol.III, p. 473

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implications of pre-existing rules or the logical content of legal

principles.18

Interpretation on one side runs into application and so the judicial

function runs into the legislative function at this point. On the other side,

interpretation runs into application and so the judicial function runs into

the administrative.19

The major function of the judiciary is of adjudication of claims and

counter claims of the litigants. In doing so sometimes where the law

applicable to the factual aspects of the case is such that there is a

provision in it which is capable of two meanings. In order to clarify this

situation the important functions of the Courts in administering justice

comes into play Viz. interpretation of statute. Interpretation, it is well

known, is not so simple as giving a meaning to the text of the statute;

which is in harmony with the intention of the legislature. Meaning and

intentions of the legislature are highly complicated concepts. The

interpretation involves a choice among several alternative results that can

be reached in references to the case on hand, not only on the basis of the

text but also by filling gaps to effectuate the presumed intention of the

legislature, by integrating the statutory prescriptions with the general

body of the law.20 The duty of the Courts is to ascertain and give effect to

the will of Parliament, as expressed in its enactment. In the performance

of such duty, the Judges do not act as computers into which are fed the

statute and the rules of the interpretation of statutes and from whom

issues forth the mathematically correct answers. The interpretation of

                                                            18 Roscoe Pound – Jurisprudence, Vol.II, 1959 Edi., p. 240 19 Roscoe Pound – Jurisprudence, Vol. IV, Application and Enforcement of Law, 1959

Edi., p.7 20 Murty, B.S. “Prescriptions of Social Policy”, Vol-25 [2] JILI-1983- p.174.

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statute is a craft as much as a science and the judge as craftsman select

and apply the appropriate rules as the tools of their trade.21

In an analysis of the judicial process we may set off, first,

ascertainment of the facts upon which the determination must proceed.

Next, the facts having been found, judicial decision according to law

involves – (1) finding the legal precept to be applied, (2) interpreting the

precept, (3) applying the precept to the cause.22

Interpretation is a concept having several meanings and a variety of

applications. One may have to interpret facts; one may have to interpret

non-verbal communications; and, finally, one may have to interpret

verbal communications usually those reduced to writing. In this process,

language, logic and law intermingle with one and another.23

Interpretation is the act of finding out the true sense of any form of

words, that is, the sense which the author intended to convey, and of

enabling others to derive from them the same idea which the author

intended to convey. In the legal jargon the words Judicial Interpretation

and Statutory Interpretations are being used. Judicial Interpretation means

an interpretation of law by judiciary whereas in Statutory Interpretation

there is determination of the meaning of the legislation. It only text place

if the text conveys some meaning or other.

The process of judicial interpretation is only necessary in case of

enacted law and it is not called for in respect of customary or case law.

Courts resort to interpretation when they endeavour to ascertain the

meaning of a word found in a statute which , when considered in the light

of other words in the statute, may reveal any meaning different from that

                                                            21 Jagdish Swaroop: Legislature & Interpretation, 1989 Edition, p. 197 22 Roscoe Pound: Jurisprudence, Vol.III, 1959 Edition, p. 469 23 P. M. Bakshi: Legal Interpretations (Ancient and Modern), 1993 Edition, p. 3

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apparent when the word is considered abstractly, or when given its usual

meaning. Words in any language are not scientific symbols having any

one precise or definite meaning, and language is but an imperfect medium

to convey one’s thought, much less of a large assembly consisting of

persons of various shades of opinion. It is impossible even for the most

imaginative legislature to forestall exhaustively situations and

circumstances that may emerge after enacting a statute where its

application may be called for. The problem of interpretation is a problem

of meaning of words and their effectiveness as medium of expression to

communicate a particular thought. A word is used to refer to some object

as situation in the real world and this object or situation has been assigned

a technical name referred.24 Each word is but a symbol which may stand

for one or a large number of objects.25

The principles of interpretation was not enunciated only for

interpretation of law but it was enunciated for interpreting any piece of

literature and it meant that when you have to give meaning to anything in

writing then you must understand the real meaning by understanding in

which it was stated and the problems or the situations which were

intended to be by what was said and it is only when you take into

consideration all background and the problems which have to be tackled

then you could really understand, the real meaning of the words. This

exactly is the principle which deserves to be considered.26

Interpretation becomes more than the ascertainment of the meaning

and intent of law makers whose collective will has been declared.27

                                                            24 Jusice G.P. Singh: Principles of Statutory Interpretation, 5th Edition, p. 3 25 Dy. Chief Controller of Imports & Exports v. Kosalram, A.I.R. 1971 S.C., pp.

1283, 1289. 26 U.P. Bhoodan Yagra Samiti v. Brij Kishor: [1989] 4 S.C.C., p. 281 27 Benjamin N. Cardozo, Ibid, p. 17

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6.2 CONSTRUCTION:-

The Court has to harmonise the letter and spirit of an enactment.

The idea is to get at the ‘intent of the legislature’. But this expression is

ambiguous. It may connote either the meaning or the purpose of

legislation. And the two methods are known respectively by

“interpretation” and “construction”. In practice, one cannot be separated

from the other, because it is difficult to see where ‘interpretation’ leave

off and ‘construction’ begins.

However, Interpretation may be defined as the act of finding out

the true sense of any form of words, that is, the sense which their author

intended to convey, and of enabling other to derive from them the same

idea which the author intended to convey. Whereas, Construction may be

termed as the drawing of conclusions respecting subject that lie beyond

the direct expressions of the text, from elements known from and given in

the text, conclusions which are in the spirit, though not in the letter of the

text. Interpretation only takes place if the text conveys some meaning or

other. But construction is resorted to when, in comparing two different

writings on the same individual or two different enactments by the same

legislative body, there is found contradiction where there was evidently

no intention of such contradiction in one or another, or where it happens

that part of a writing or declaration contradicts the rest. When this is the

case and the nature of the document or declaration, or whatever else it

may be, is such as not to allow as to consider the whole as being

invalidated by a partial or other contradiction, their resort must be had to

construction; so too, if found to act in cases which have not been foreseen

by the framers of those rules, by which we are nevertheless obliged for

some binding reasons, faithfully to regulate as well as we can our action

respecting the unforeseen case.

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Construction is the drawing of conclusions respecting subjects that

lie beyond the direct expressions of the text, from elements known from

and given in the text, conclusions which are in the spirit, though not in the

letter of the text. Construction is resorted to when, in comparing two

different writings of the same individual, or two different enactments by

the legislative body, there is found contradiction where there was

evidently no intention of such contradiction in one or another, or where it

happens that part of a writing or declaration contradicts the rest. When

there is the case in the nature of the document or declaration, or whatever

also it may be, is such as not to allow as to consider the whole as being

invalidated by a partial or other contradiction, then resort must be had to

construction; so too, if found to act in cases which have not been foreseen

by the framers of those rules, by which we are nevertheless obliged for

some binding reasons, faithfully to regulate as well as we can our action

respecting the unforeseen case.

6.3 MIMANSA:

The Mimansa – the rules of interpretation of the sacred scriptures

of ancient Hindu Law is one of forensic source of law. The various rules

of mimansa has been systematically developed in most scientific manner.

The substantive law was described as Dharma and the procedural

law was called the vyavahara. In this sense of the word the legal disputes

were too called vyavahara (vi=various, ava=doubts, hara=removing]

[Harita)

Party (Raga), greed (Lobha), fear (Bhaya), illwill or malice

(Dwesha)

The ancient rules of interpretation were very scientific. They

recognized the science of reasoning and also the principles of Justice,

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Equity and Good Conscience. Dharma or the Justice, and Yukti or the

Equity and the reason were the foundations of justice or “No decision

should be made merely exclusively according to the letter of shastra, for

in a decision devoid of Yukti, failure of justice occurred. (Brihaspati

II.12, Artha.III.II.51.55) Nyaya always referred Equity and Reason and in

case of difference between different smritis first Manu Smriti was to be

followed otherwise that Smriti which agreed with principles of Nyaya

(Equity and good conscience) was to be followed. [Yajnavalkya II.21,

Gautama XXVII.48, Manu.XII.108]

The Mimansa principles of interpretation were first laid down by

Jaimini in his sutras, about 500 B.C. That they are very ancient is proved

by the fact that they are referred to in many Smritis, which themselves are

very old. Thus, the Apastamba sutras copiously refer to Jaimini’s

principles. Since Jaimini’s sutras are in very terse and concise form it

became necessary to explain them. Many commentaries were written on

them e.g. of Upavarsha, Shabar, etc. but all these are lost except the

Shabarbhashya. Shabar’s work was in turn commented on by Kumarila

Bhatta, Prabhakar, etc. These in turn were commented upon by

Parthasarthy Mishra, Shalignath, etc. It is not necessary to go into detail

into such commentaries etc. but it may be pointed out that there are scores

of books on the topic (all in Sanskrit) e.g. the commentaries of Sree Bhatt

Shankar, Apadeva, Laugakshi Bhaskar, etc. and our interpreters have

gone much deeper into the topic than Maxwell. While the Westerners

have been doing interpretation only for about 200 years (Maxwell’s book

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was written in the middle of the 19th Century) we have been doing

interpretation for 2500 years or so.28

The Mimansa principles of interpretation were created for religious

purposes, that is, to enable correct performance of the Yagya. However,

since these principles were extremely rational and logical they began to

be subsequently used in other branches of Sanskrit literature e.g. in

philosophy, law, grammar, etc., that is to say, they became of universal

application.29

In Sardar Mohd. Ansar Khan v. State of U.P.,30 the controversy

was that if two clerks in an intermediate college in U.P. were appointed

on the same day who would be senior? Whoever was senior had the right

to be promoted as head clerk. Now on this point the law was silent. There

was nothing in the U.P. Intermediate Education Act or the Regulations

made thereunder which says anything about this. However, Chapter II,

Regulation III of the Regulations says that if two teachers are appointed

on the same day the senior in age will be senior. Justice Katju used the

atidesh principle of Mimansa, which means going from the known to the

unknown, and held that the same principle which applies for teachers

should also be applied to clerks, and hence the senior in age would be

senior.

In Udai Shankar Singh v. Branch Manager,31 the facts were that

the petitioner was going on a scooter and met with an accident with a

truck. As a result, his right leg had to be amputated, and his right hand

was totally paralyzed. He had taken an LIC policy, and he claimed                                                             28 Justice M. Katju, Judge, Allahabad High Court, “The Mimansa Principles of

Interpretation-I”, K. L. Sarkar’s Mimansa Rules of Interpretation, Third Edi., 2011, p.6

29 Justice M. Katju, Ibid p.7 30 1995 Lab IC 1217 (All) 31 1998 (2) ALL CJ 1364

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compensation. The LIC policy mentioned that compensation was payable

on death or permanent disability. Permanent disability was defined in the

policy as (a) loss of both the eyes, or (b) amputation of both legs, or (c)

amputation of both the hands, or (d) amputation of one hand and one leg.

The LIC rejected the claim, saying that the right hand was only paralyzed,

and not amputated. It was observed that now, if we follow the literal rule

of interpretation the LIC was correct. However, Hon’ble Justice Katju

allowed the petition holding that here the literal rule has not to be

followed, and instead the linga or lakshana principle has to be followed as

after all, paralysis of the hand was as bad as amputation of the hand,

because both lead to loss of the use of the hand.

In Mahabir Prasad Dwivedi v. State of U.P.,32 the facts were

relating to provisos given under Section 7-A of the U.P. Town Areas Act.

Section 7-A of the U.P. Town Areas Act provided that the District

Magistrate could remove the Chairman of the Town Area for certain

misconducts. These were two provisos to Section 7-A. The first proviso

said that before removing the Chairman the District Magistrate had to

give him an opportunity of hearing. The second proviso said: “Provided

secondly that no order for removal shall take effect unless it has been

confirmed by the State Government”. The question was whether the State

Government also has to give an opportunity of hearing. At first glance it

seemed that it was not necessary for the State Government to give an

opportunity of hearing before confirming the order of the District

Magistrate. There was no such requirement expressly mentioned in the

second proviso. Moreover, the second proviso was in close proximity to

the first proviso where this requirement was expressly mentioned, and

hence it was urged by the respondents that the Legislature never intended

                                                            32 AIR 1992 ALL 351

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that the State Government must give opportunity of hearing, otherwise it

would expressly have mentioned it in the second proviso (as it had in the

first). However, using the anushanga principle which states that an

expression occurring in one clause is often also meant for a neighboring

clause, and it is only for economy that it is not mentioned in the letter,

Hon’ble Justice Katju held that the State Government must also give

opportunity of hearing.

It is deeply regrettable that in our Courts of Law, lawyers quote

Maxwell and Craies but nobody refers to the Mimansa Principles of

Interpretation. Few people in our country are aware about the great

intellectual achievements of our ancestors and the intellectual treasury

they have bequeathed us. The Mimansa Principles of Interpretation is part

of that intellectual treasury, but it is distressing to note that apart from a

reference to these principles in the judgment of Sir John Edge, the then

Chief Justice of Allahabad High Court, in Beni Prasad v. Hardai Devi,33

it may be mentioned that the Mimansa Rules of Interpretation were our

traditional principles of interpretation laid down by Jaimini in the 5th

Century B.C. whose Sutras were explained by Shabar, Kumarila Bhatta,

Prabhakar, etc. The Mimansa Rules of Interpretation were used in our

country for at least 2500 years, whereas Maxwell’s First Edition was

published only in 1875. These Mimansa Principles are very rational and

logical and they were regularly used by our great jurists like

Vijnaneshwara (author of Mitakshara), Jimutvahana (author of

Dayabhaga), Nanda Pandit, etc. whenever they found any conflict

between the various Smritis or any ambiguity or incongruity therein.

There is no reason why we cannot use these principles on appropriate

occasions even today. However, it is a matter of deep regret that these                                                             33 (1892) ILR 14 All 67 (FB)

20 

 

principles have rarely been used in our law Courts. It is nowhere

mentioned in our Constitution or any other law that only Maxwell’s

Principles of Interpretation can be used by the Court. We can use any

system of interpretation which helps us solve a difficulty. In certain

situations Maxwell’s principles would be more appropriate, while in other

situations the Mimansa Principles may be more suitable.34

In the Mimansa system, the literal rule of interpretation is called

the Shruti (or Abhida) principle, and ordinarily it is this principle which is

to be applied when interpreting a text. However, there are exceptional

situations when we have to depart from the literal rule and then certain

other principles have to be resorted to e.g. (1) the Linga (also called

Lakshana) principle or the suggestive power of words or expressions, (2)

the Vakya principle or syntactical arrangement, (3) the Prakarana

principle, which permits construction by referring to other texts in order

to make the meaning clear, (4) the Sthana (position) principle which

means the relative position of one text with reference to another, (5) the

Samakhya (name) principle which means the connection between

different passages by the indication accorded by the derivative words of a

compound name.35

MIMANSA – MAXIMS OF INTERPRETAION

There are certain fundamental maxims in Mimansa Rules of

Interpretation. They are as under: -

                                                            34 M/s. Ispat Industries Ltd. v. Commissioner of Customs, Mumbai, 2006 (9) Scale

652; Gujarat Urja Vikash Nigam Ltd v. Essar Power Ltd., AIR 2008 SC 1921; Surjit Singh v. Mahanagar Telephone Nigam Ltd., AIR 2008 SC 2226; Dr. Rajbir Singh Dalal v. Chaudhari Devi Lal University, Sirsa & Anr., AIR 2009 (Supp.) 768; B. Premanand & Others v. Mohan Koikal & Others, AIR 2011 SC 1925

35 Surjit Singh v. Mahanagar Telephone Nigam Ltd., AIR 2008 SC 2226

21 

 

Pathakarmanyaya:

The sequence of various steps prescribed must not be changed.

Dyayo-Pranayantinyaya:

A party cannot take an inconsistent stand.

Hadhyadipikanyaya:

[Lamp on the central partition wall]. A word may throw light on

preceding as well as succeeding clause.

Mandukaplutinyaya:

Frog leap….. a clause lying between two clauses may be skipped

over.

Gobalivardanyaya:

‘Cattle and bull’. If two words having similar meaning are used

and one is general and the other is more specific, the later word

qualifies the former. (ejusdem generis).

Ghatapatanyaya:

If two words of different gerera appear one after other they do not

control the meaning of each other.

Samanjavisheshanyaya:

Special rule overrides the general rule.

Kakadantaparikshanyaya:

Futility of seeking an explanation as is examining a crow’s teeth.

22 

 

Shringagrahikanyaya:

“Seizing the bull by its horns”. To meet the most difficult point

first.

Kakataliyanyaya:

“crow getting caught in the clap of a blind person”. Pure

coincidence or no reasonable cansa-cansance. Similar is the

kakashikhanyaya, “Falling of a branch of a tree the moment a crow

was to sit on it”.

Jalanayananyaya:

“Vessel and the water”. If principal matter is authorized, the

incidental ones are deemed to have been authorized.

Yah karayati sa karotyeva:

Who causes an act done by another does it himself:

(Modern: “Qui facit per alium, facit per se”, who does through

another does it himself.)

Ahishiddhamanumatam:

Which is not objected is agreed to.

Ajatputranamokkirtananyayaha:

Premature actions as raising a question of naming a child before its

birth.

23 

 

JAIMINIS’ RULES OF INTERPRETATION:

The well known scholar Jaimini has enumerated various rules of

interpretation which may be called as Mimansa Rules of Interpretation.

Summarily, they may be mentioned as follows: -

(1) Contradictions apparent in texts were to be ascribed to their

applying to different subjects or one to be general and the other to

be a special rule.

(2) Some word or sentence should not be understood in two different

senses in the course of the same discussion.

(3) Singular includes plural, masculine includes feminine, greater

includes the less.

(4) Primary sense of a word preferred to secondary sense so as to make

it intelligible.

(5) Special rules prevail over general.

(6) Exception to general rule to be strictly construed.

(7) Mere recital of a reason for an Injunction (Arthavada) neither adds

to nor detracts from the rule itself.

(8) From express texts dealing with one subject, a rule can be deduced

by analogy (Atidesa) as applicable to another subject of the same

class when there is no impediment.

(9) An enumeration of persons or objects may be illustrative and not

exhaustive.

(10) Interpretation of APIC (Even), VA (or), CHA (and) Vidhi….

Injunction, Arthavada, recommendatory, could on occasions be

interchangeable.

24 

 

(11) Mimansa Rules of interpretation prescribed logical Methods:

Purvapaksha = proposition to be discussed, then Uttarpaksha = a

refutation of wrong view, then Siddhanta = conclusion.

Each adhikararana or topic was divided in 5 limbs:-

(1) Vishayavakya (vedic sentence)

(2) Samasya (doubt as to its meaning)

(3) Purvapaksha (prima facie view of objection)

(4) Uttarpaksha (refutation of prima facie view)

(5) Siddhanta (conclusion)

(12) The Sarthakya axiom provided that every word and sentence has

some meaning and purpose. The texts shall be interpreted in such a

way that no provision is rendered meaningless.

(13) The Laghava axiom cautions that if one rule or proposition is

sufficient, more must not be assumed.

(14) The arthaikatva maxim required that the same word or sentence

should not be given different meanings in the same law.

(15) Under the Gunapradhana axiom if a word or a sentence expresses

subordinate idea and it conflicts with principal idea the principal

idea shall prevail and the expression shall be construed

accordingly.

(16) The Samajasya axiom states that a contradiction should not be

presumed if reconciliation is possible. [A harmonious construction

was suggested here.]

25 

 

(17) Under the Vikalya rule if there was real conflict between two

provisions it should be presumed that those were allowed options.

(18) Assertion, indicative power, syntactical unit, context, order and

name are the various means of interpretation and are given in order

of their superiority.

(19) In case of conflict between substantive provision and the

procedural provision the substantive was to prevail.

(20) The law could be mandatory or recommendatory and a provision

can be positive or negative.

Indian classical literature on law, logic and language is vast; and

modern writings thereon are also numerous. In regard to the classical

literature of India, mimansa offered the most appropriate choice as it was

a well developed system; its methodology has considerable resemblance

to legal arguments as addressed in the context of interpretation; and many

of its doctrines, rules and maxims had found practical application in legal

texts, both in dharma shastra including the commentaries thereon and in

judicial decisions pronounced in India in the administration of Anglo

Hindu Law.36 For this reason, the mimansa system appears to be both

suitable and useful for a comparison with modern rules of interpretation.

6.4 MEANING OF STATUTE:

We live in and by the law. It makes us what we are citizens and

employees and doctors and spouses and people who own things. It is

sword, shield and menace; we insist on our wage, or refuse to pay our

rent, or are forced to forfeit penalties, or are closed up in jail, all in the

name of what our abstract and ethereal sovereign the law, have decreed.

                                                            36 P. M. Baxi: Legal Interpretations (Ancient & Modern), Ibid, p. 3

26 

 

It is said that the attempt to define the term “law” is a useless

endeavour.37

The law in the wider sense covers all spears of human activities. It

is concerned with social relationship of men and the social consequences

ensuing there from. It is said that the aim of the law is to secure ends of

justice and it is to reach this end that courts of law have been established.

Juristic discussion of theories of law has been much embarrassed

by multiplicity of term to be defined. In jurisprudence, ‘law’ is defined in

various ways, according to the school of thoughts.

A very old use is to mean the order of the universe. A modern use

is o refer to regular sequences of phenomena explained by hypothesis of

rules or principles underlying the sequences. The phenomena of physical

nature, of biology, of history, of linguistics, and of morals may be

referred to laws in this way.38

According to Greek thought, there is the idea of law as human

wisdom, as ascertained and promulgated through the state. There is also

the idea of law as the manifestation of an immutable and eternal right and

justice. In other words, there is the idea of lex and the idea of ‘jus’.39

According to historical school of thoughts, ‘law’ is to mean all

social control or else to mean a taught tradition of doctrines, precepts, and

technique for adjustment of relations and ordering of conduct.

Philosophical school has used the term in the phrase “natural law”

to mean a body of ideal principles, for the guidance of conduct and

ordering of relations, derived by reason.

                                                            37 W. Friedmann, Legal Theory, 4th Edition, 1960, p. 273 38 P. M. Baxi: Legal Interpretations (Ancient & Modern), Ibid, p. 5 39 P. M. Baxi: Legal Interpretations (Ancient & Modern), Ibid, p. 23

27 

 

According to Analytical, ‘law’ is aggregate of sanctioned rules of

conduct which have the guinea stamp of a politically organised society, or

as the aggregate of rules and principles for determining controversies

recognised or established by the appointed authorities of such a society,

or as a body of threats of exercise of the force of such a society, or as a

body of predictions as to how and when that force will be applied.

Realists have used the word to mean whatever is done officially in

such a society, or more specifically have used it for the judicial and the

administrative processes.

According to Salmond law is primarily a means towards the

attainment of justice and should therefore be defined with reference to it

and law is merely the instrument while justice is the end, the primary

purpose for which State exists. Further, according to him, law is not right

alone, or might alone, but the perfect union of the two. Law is justice

speaking to man by the will of the state.

Roscoe Pound, an American Professor, regarded law as a social

institution. According to him, “law is the body of knowledge and

experience with the aid of which a large part of social engineering is

carried on. It is more than a body of rules. It has rules and principles and

conceptions and standards for conduct and for decision, but it has also

doctrines and modes of professional thought and professional rules of art

by which the precepts for conduct and decision are applied and developed

and given effect.”40

Austin has regarded law as command of sovereign. According to

Austin, “A law, in the most general sense, is a rule laid down for

                                                            40 Roscoe Pound: Interpretation of Legal History, p. 156

28 

 

guidance of an intelligent being by an intelligent being having power over

him.”41

According to Holland the immediate objects of law are the creation

and protection of legal rights.

According to Bentham, ‘a law is either a command or the

revocation of one.’42

According to Blackstone, ‘a law was a rule of action which is

prescribed by some superior, and which the inferior is bound to obey”,

rule of action dictated by some superior being.43

Imperative theory of law i.e. it is the command of sovereign – as

expounded by Austin – although one sided contains an important element

of truth. It rightly recognizes the essential fact that civil law is the product

of the state and depends for its existence on the physical force of the State

exercised through the agency of judicial tribunals.

Historically, the oldest and longest continued use of “law” in

juristic writing is to mean the aggregate of laws, the whole body of legal

precepts which obtain in a given politically organized society. But in a

wider phase of this sense it may mean the body of authoritative grounds

of, or guides to, judicial and administrative action, and so of prediction of

such action, established or recognized in such a society including

precepts, technique, and received ideals.44 Law is, indeed, an historical

growth, for it is an expression of customary morality which develops

                                                            41 Austin: 1 Jurisprudence (3rd Edi.1864) p. 88 as referred to by Roscoe Pound, Ibid,

p. 71 42 Principles of Morals & Legislation (1780) 330 as referred to by Roscoe Pound:

“The Nature of law” – Jurisprudence – Vol.III, p. 69 43 Roscoe Pound, Ibid, p. 70 44 Roscoe Pound: Jurisprudence, Volume I, 1959 Edition, p. 12

29 

 

silently and unconsciously from one age to another. But law is also

conscious or purposed growth.

Sociologists use “law” for the inner order of groups and

associations, for the social control by which that inner order is

maintained, for all social control by which that inner order is maintained,

for all social control, for limitations of power, for organisation of power,

and for institutional social control. One of the most fundamental social

interests is that the law shall be uniform and impartial. There must be

nothing in its action that savors of prejudice or favour, or even arbitrary

whim or fitfulness.45 Uniformity ceases to be a good when it becomes

uniformity of oppression.46

In the science of politics, law is used for a regime of keeping the

peace, and is considered by some identical with the state, law and

political organisation of society being considered the same thing. By

writers on ethical politics a law has been said to be a protest by society

against wrong.47

In another sense the term “law” is used to mean the legal order. It

is used to mean the regime of ordering human activities and adjusting

human relations though the systematic application of the force of a

politically organized society.48

In still another sense law is called as the judicial process. In this

sense law is used to mean the process of determining controversies

                                                            45 Benjamin N. Cardozo, Ibid, p. 112 46 Benjamin N. Cardozo, Ibid, p. 113 47 Roscoe Pound, Ibid, p. 6 48 Roscoe Pound, Ibid, p. 13

30 

 

whether as it actually text plays or as it is conceived it ought to take

place.49

Law is the body of general principles and of particular rules in

accordance with which civil rights are created and regulated, and wrongs

prevented or redressed. Law and obedience to law are facts confirmed

every day to us all in our experience of life.50

Law in the sense of the legal order has for its subject matter

relations of individual human beings with each other and the conduct of

individuals so far as they affect others or affect the social or economic

order.

Law in the sense of the body of authoritative grounds of or guides

to judicial decision and administrative action has for its subject matter the

expectations or claims or wants held or asserted by individual human

beings or groups of human being which affect their relations or determine

their conduct.51

Law is a social phenomenon. Law is our most structured and

revealing social institution. But its complexity, function, and consequence

all depend on one special feature of its structure. Law is concerned with

social relationships of men and the social consequences ensuring there

from.

The law is only a matter of what legal institutions, like legislatures

and city councils and courts, have decided in the past. So questions of law

can always be answered by looking in the books where the records of

institutional decisions are kept.

                                                            49 Roscoe Pound, Ibid, p. 14 50 Benjamin N. Cardozo, Ibid, p. 127 51 Roscoe Pound – Jurisprudence, Vol. III, p. 5

31 

 

The law is not a homeless, wandering ghost. It is a phase of human

life located in time and space. 52 The law consists of the rules recognized

and acted on by courts of justice through in the modern concept of law

with social emphasis it also balances the benefits secured by its obedience

with the harm resulting from enforcement by its compulsion.

Law insists merely on the compliance of ‘conduct’ with certain

standards and seldom worries as to the motives of men. It prescribes

external conduct. It is also said to be aggregate of rules of conduct.

It is for the expression and realization of justice that the law has

been created, and, like every other work of men’s hands, it must be

defined by reference to its end and purpose. In idea law and justice are

co-incidence. The law is the instrument which the State uses to promote

justice. Justice was regarded as maintenance of the social status quo, and

philosophers were busied in planning an ideal society in which everyone

was put in the right place, to be kept there henceforth by the law.53Justice

demanded an unanimity in which there would be no violation of mutual

claims or spheres of authority i.e. in which each would keep within his

appointed sphere, and right and law took account primarily of relations of

inequality in which individuals are treated in proportion to their worth,

and only secondarily of relations of equality.54 Justice looks to an ideal

social order; the moral ideal to an ideal man.

Legislation may be described as law made deliberately in a set

form by an authority, which the courts have accepted as competent to

exercise that function. There is universal agreement that deliberate law

                                                            52 [M. R. Chohen: Reason and Law, 4 (1950)] 53 Roscoe Pound, Jurisprudence , Vol.I, 1959 Ed., p. 465 54 Roscoe Pound, Jurisprudence , Ibid, p. 467

32 

 

making through legislation is indispensable to the regulation of the

modern state.

Legislation is the most potent and sovereign source of law making.

It is the only source which has all the powers of enacting laws, repealing

old laws modifying current laws. It is, therefore, to be distinguished from

law derived from judicial decisions, for though the judiciary may be said

to have power to make law, it has no power to lay down general rules.

A very common use by jurists of all schools, in relation to the term

“law”, is to refer to the regime of adjusting relations and ordering conduct

by the systematic application of the force of politically organised society

jurisprudence.55

Law looks to acts and only to thoughts and feelings so far as they

indicate the character of acts and determine the threat to the general

security which they involve.56The term ‘law’ is used to mean the legal

order, that is, the regime of adjusting relations and ordering conduct by

the systematic and orderly application of the force of a politically

organized society.57 Law is the sum of the general rules for the common

life of man which themselves point out the source of their obligatory

force.58

Law has a definite place as an agent of social evolution. It can play

a vital part in the reshaping of societies. The main functions of law in a

changing society are preservation of stability and of ensuing security

against disorders. There are bound to be changes of law in a changing

society. In democratic system of State organization, there is a great

                                                            55 Roscoe Pound: The Nature of Law, Vol.II, 1959, p. 6-7 56 Roscoe Pound Ibid, p. 253 57 Roscoe Pound Jurisprudence, Vol. II , pp. 104-105 58 Roscoe Pound – Jurisprudence, Vol. I, 1959 Edi., pp. 172-173

33 

 

variety of interactions between social evolution and legal change. Logic,

and history, and custom, and utility, and the accepted standards of right

conduct, are the forces which singly or in combination shape the progress

of the law.59The final cause of law is the welfare of the society.

The law that has its source in legislation is called enacted law or

statute law. A statute law is expressed in general or abstract terms. Statute

law is the principal source of modern law. It is quickly made, definite,

easy of access and easy to prove. A statute, it is said, is law as soon as it

is passed; it does not have to wait for recognition by the courts before

becoming entitled to the name ‘law’. The courts recognize a statute

because it is law; it is not law merely because the courts recognize it.

Statute may be regarded as a body of universal, absolute, binding rules.

Law is meant to serve the living and does not beat its abstract

wings in the jural void. Its functional fulfilment as social engineering

depends on its sensitized response to situation, subject-matter and the

complex of realities which require ordered control. A holistic

understanding is simple justice to the meanings of all legislations.

Fragmentary grasp of rules can misfire or even backfire.60

The word ‘law’ in the context of Art. 300A of the Constitution

must mean an Act of Parliament or of a State Legislature, a rule, or a

statutory order, having the force of law, that is positive or State-made

law.61

Law in its legislative sense is of much wider import than the

juristic notion of law as the command of a sovereign or as a rule laying

                                                            59 Benjamin N. Cardozo, Ibid, p. 112 60 Board of Mining Examination v. Ramjee, AIR 1977 SC pp.965, 967 : (1977) 2 SCC

256 : (1977) 34 Fac. L.R. 381 : (1977) 2 SCR 904 61 M/s. Bishamber Dayal Chandra Mohan v. State of U.P., AIR 1982 SC pp.32, 48

34 

 

down a general course of conduct. The term ‘Law’ in Article 245 of the

Constitution must be construed so as to include in its scope all legislative

Acts enacted in the prescribed manner and form.62

The essence of the word ‘law’ is that it is enforceable as law, and

that though the Courts may construe the law, the Courts cannot reject it

nor quash it.63

Statute law and judge-made law are not the only laws. There is

something like a common or general law, the principles of which govern

the making of judicial decisions and which courts and Tribunals state

from time to time.64

Though theorists may not find it easy to define a law as

distinguished from executive orders, the main features and characteristics

of law are well recognised. Stated broadly, a law generally is a body of

rules which have been laid down for determining legal rights and legal

obligations which are recognized by courts. In that sense, a law can be

distinguished from a grant, because in the case of a grant, the grantor and

the grantee both agree about the making and the acceptance of the grant

not so in the case of law. Law in the case of an absolute monarch is his

command which has to be obeyed by the citizens whether they agree with

it or not. Therefore it is not correct to say that while the Court is dealing

with a grant made by an absolute monarch, it is irrelevant to enquire

whether the grant is result of an executive action, or a legislative action.

Nor every act of the absolute monarch and every order passed by him

would become law thought the act or order may have relation exclusively

                                                            62 Ram Prasad v. State of Bihar, AIR 1952 Pat. 194 at pp.195, 196 63 Emperor v. Abdul Hamid, AIR 1923 Pat. pp.1, t 7 : 68 Ind. Cas 945 : 3 P.L.T. 585 :

1922 P.H.C.C. 274 : 2 Pat. 134 : 23 Cr.L.J. 625 : 1 Pat. L.R. 199 (S.B.) 64 Punkaj Kumar v. Bank of India, AIR 1957 Cal. pp.560, 570 : (1956) 2 L.L.J. 328 :

60 C.W.N. 601

35 

 

to his personal matters and may have no impact on the public at large.

That is why it is unsound to suggest that the jurisprudential distinction

between orders which are judicial, executive or legislative or in relation

to purely individual and personal matters should be treated as irrelevant

in dealing with Acts or orders passed even by an absolute monarch.65

A mere executive order cannot possibly come under “existing law”

or “law in force” as defined in the Constitution.66

The word “law” in its literal sense, may include constitutional law

but it was pointed out that “there is a clear demarcation between ordinary

law, which is made in exercise of legislative power, and constitutional

law which is made in exercise of constituent power. The scheme of the

relevant provisions of the Constitution was then examined and ultimately

the Court reached the conclusion that though both Articles 13 and 368 are

widely phrased, the harmonious rule of construction requires that the

word “law” in Art, 13 should be taken to exclude law made in exercise of

the constituent power.67

The Supreme Court in D. P. Joshi v. State of Madhya Bharat,68 has

held that a notification for an executive direction issued by the State

Government against the provisions of the statute will come within the

definition of the expression “Law” referred to in Article 13 of the

Constitution.

                                                            65 Raj Kumar Narsingh Pratap Singh Deo v. State of Orissa, AIR 1964 SC pp.1793,

1797 : 1964 All LJ 921 : (1964) 2 SC W.R. 40 : 1965 (1) Cr. L.J. 94 66 K. O. John v. State, AIR 1956 TC pp.117, 118 : 1955 K.L.T. 752 : ILR 1955 TC

1274 67 Sajjan Singh v. State of Rajasthan, AIR 1965 SC pp.845, 856 : (1965) 1 Mad L.J.

(SC) 57 : (1965) 1 SCJ 377 : (1965) 1 An WR (SC) 57 68 AIR 1958 SC 538; R. Jacob Mathew v. State of Kerala, AIR 1964 Ker pp.39, 67 :

1963 Ker. L.T. 783 : 1963 Ker. L.J. 820

36 

 

A law must follow the customary forms of law-making and must

be expressed as a binding rule of conduct. There is generally an

established method for the enactment of laws, and the laws when enacted

have also a distinct form. It is not every indication of the will of the Ruler

however expressed, which amounts a law. An indication of the will meant

to bind as a rule of conduct and enacted with some formality either

traditional or specially devised for the occasion, result in a law but not an

agreement to which there are two parties, one of which is the Ruler.69

The mere fact that the Executive Head also enjoyed legislative

powers for the State does not lead to the conclusion that every order

passed by him, in whatever capacity, would have the status of “law” or “a

provision having the force of law”. It is not correct to say that the Ijlas-i-

khas order was a law in Patiala State and therefore, it became the law for

the State of Pepsu. It was merely an executive order issued by the

Executive Head of the State with a view to lay down certain guiding

principles in the matter of determining seniority of its subordinate

officers. Therefore, the Order or the Rules framed by it did neither

amount to “law”, or “having framed thereunder” nor “a provision having

the force of law”. It was merely an executive Order. It is the nature of the

order that would determine its source and the capacity in which it was

made. The name assigned to it may not be very much material, but the

purpose for which the Order was made may be regarded as one of the

decisive factors. Under the circumstances, the Rules could at any time be

amended, superseded or annulied as the exigency demanded by the

Rajpramukh the Executive Head of the Pepsu State. The contention that it

                                                            69 Bengal, Nagpur Cotton Mills Ltd., AIR 1964 SC 888; State v. Bundi Electric

Supply Company, AIR 1970 Raj. pp.36, 46 : ILR (1969) 19 Raj. 340 : 1969 Raj LW 473

37 

 

was for the Legislature of the State to alter or amend those rules was

repelled.70

Whatever might have been its significance in the primitive legal

systems, in the modern developed system of societies, the “law” is of

statutory origin and is embodied in special enactments.

Executive order made by Government in respect of the

administration of its own properties cannot be considered as statutory

rules and are not justiciable under Article 226 of the Constitution.

Government can own property and deal with it in any manner that is

permissible under law. If there is any Statue which imposes a restriction

or if there are any statutory rules which compel a certain procedure to be

followed, that is another matter, and Government would have to follow

them. Otherwise however there seems to be no reason why Government

cannot treat and administer its own property in the way it considers

beneficial.71

The expression “law” used in clause (5) does not mean merely the

direct expression of the will of the Legislature; in its context the

expression “law” must include the lawful expression of the will of some

authority to whom power is delegated by the Legislature. The expression

“property declared by law to be evacuee property” includes property

which is declared by notification issued by the Custodian under the

Administration of Evacuee Property Act to be evacuee property.72

When the Supreme Court construed Art. 286 (1) of the Constitution

in the United Motors case, their interpretation became the law not only

                                                            70 Gurbachan Singh v. State of Pepsu, AIR 1956 Pepsu pp.26, 28 71 B.S.M. S. Samity v. State, AIR 1961 Cal. pp.214, 217 : 95 Cal. W.N. 685 72 S. A. Mills Corpn. V. Custodian of Evacuee Property, AIR 1957 Bom. pp. 119, 129

: ILR 1957 Bom, 668 : (1957) 59 Bom. 668 : (1957) 59 Bom. LT 309

38 

 

from the date of decision but it should be deemed to be the correct

interpretation from the date of Constitution itself. The consequential

effects flowing from the law so laid down should necessarily follow

subject of course to the law of limitation or special rule such as res

judicata in civil cases or autre fois acquit or convict in criminal cases

provided in the special statutes.

A statute is better described as an instruction to administrators and

courts to accomplish a definite result, usually the securing or maintaining

of recognized social, political or economic values. The statute is

expressed in definite written words.

Statutes are not always rational and it may not be within the

province of the court to import rationality in an enactment under the guise

of interpretation.73

Looked at functionally, the enacted law is an attempt to satisfy, to

reconcile, to harmonize, to adjust the overlapping and often conflicting

claims and demands, either through seeming than directly and

immediately, a through securing certain individual interests, or through

delimitations or compromises of individual interests, so as to give effect

to the greatest total of interests or to the interests that weigh most in our

civilization, with the least sacrifice of the scheme of interests as a

whole.74 Laws are a species of commands.75

The making of law is not static, but is a dynamic process. There is

the idea of law as human wisdom, ascertained and promulgated through

                                                            73 Lakshmi Ammal v. Ramchandra, AIR 1960 Mad, pp.568, 570 74 Roscoe Pound – Jurisprudence, Ibid, p. 324 75 John Austin: The Province of Jurisprudence Determined Indian Economy Ed. 2012,

p. 26

39 

 

the state. On the other hand, there is the idea of law as the manifestation

of an immutable and eternal right and justice.76

An Act is the product of compromise and the interplay of many

factors, the result of which is expressed in a set form of words.77 Law that

has its source in legislation may be most accurately termed enacted law.78

Every statute is unique. Statutes come out of the past and aim at the

future. They may carry implicit residues or mere hints of purpose.

Law consists of rules which are of broad application and non-

optional character, but which are at the same time amenable to

formalisation, legislation and adjudication.79

Legislation is that source of law which consists in the declaration

of legal rules by a competent authority. To legislate is to make new law in

any fashion. Thus, when judges establish a new principle by means of a

judicial decision, they may be said to exercise legislative, and not merely

judicial power. Legislators can lay down rules purely for the future and

without reference to any actual dispute.80 As Lord Devlin has put it:

“The law is what the judges say it is. If the House of Lords were

to give an Act of Parliament a meaning which no one else

thought it could reasonably bear, it is their construction of

words used on preference to the words themselves that would

become the law”.81

                                                            76 Roscoe Pound, Ibid, p. 23 77 Jones v. Secretary of State for Social Services, (1972) AC 944, (1972) 1 All E R pp.

145-184 as referred to by Dias, Ibid, p. 167 78 Salmond, Ibid, p. 116 79 Salmond on Jurisprudence, 12th Edition, p. 48 80 Salmond, Ibid, p. 115 81 Delvin, Samples of Law Making P.2, as referred by Dias, Ibid, p. 166

40 

 

6.5 MEANING OF JUDGE:

The term “Judge” may be defined as a person who is called upon

regularly to determine right of parties in contested cases and to

investigate the merits of the claims of the parties and to apply his

unbiased and impartial mind in order to determine the contest. The judge,

says Aristotle, “equalises”.82

According to the Concise Oxford English Dictionary Judge is a

public officer appointed to decide cases in a law court.

The function of the Judge is to decide and determine the rights of

the contested parties. During such decision he has to deal with the

particular Statute applicable in the case. Sometimes Judge has to mold the

law or became a legislature to fill the gaps in the law. A Judge’s

philosophy is reflected in his judicial pronouncement. Such philosophy

develops over a period of time on the basis of perception and experience.

A Judge cannot be a Doctor Jekyll and Mr. Hyde. Analyzing the

role of a Judge as a legislature, to fill the gaps, Cardozo said, “what really

matters is this, that the Judge is under a duty, within the limits of his

power of innovation, to maintain a relation between law and morals,

between the precepts of jurisprudence and those of reason and good

conscience.”83 People often stand to gain or lose more by one judge’s nod

than they could by any general act of Parliament. Judicial decisions affect

a great many people – including parties to the litigation, because the law

often becomes what judges say it is. The decisions of the Supreme Court,

for example, are famously important in this way. That court has the

                                                            82 Holland on Jurisprudence, Ibid, p. 325 83 Benjamin N. Cardozo: “The Nature of the Judicial Process”, Fifth Indian Reprint

2004, pp. 133-134

41 

 

power to overrule even the most deliberate and popular decisions of other

department of government if it believes they are contrary to the

constitution, and it therefore has the last word on whether and how the

States may execute murderers or prohibit certain things etc.

The work of deciding cases goes on every day in hundreds of court

throughout the country.

Any Judge, one might, suppose, would find it easy to describe the

process which he had followed a thousand times and more. Nothing could

be further from the truth. Let some intelligent layman ask him to explain:

he will not go very far before taking refuge in the excuse that the

language of craftsmen is unintelligible to those untutored in the craft.

Such an excuse may cover with a semblance of respectability an

otherwise ignominious retreat. It will hardly serve to still the pricks of

curiosity and conscience.

In moments of introspection, the troublesome problem will recur,

and press for a solution. The following questions may recur in his mind: -

(1) What is it that I do when I decide a case?

(2) To what source of information do I appeal for guidance?

(3) In what proportions do I permit them to contribute to the result?

(4) In what proportions ought they to contribute?

(5) If a precedent is applicable, when do I refuse to follow it?

(6) If no precedent is applicable, how do I read the rule that will

make a precedent for the future?

(7) If I am seeking logical consistency, the symmetry of the legal

structure, how for shall I seek it?

42 

 

(8) At what point shall the quest be halted by some discrepant

custom, by some consideration of the social welfare, by any

own or the common standards of justice and morals?84

Judges are trusted in the administration of justice and they are

morally entitled to hold office only so long as they serve and fulfil the

essential purpose of the judicial system.

In a trivial sense judges unquestionably “make new law” every

time they decide an important case. They announce a rule or principle or

qualification or elaboration that has never been officially declared before.

Judge is the symbol and the embodiment of justice. The purity of

action and deed presumed in him is absolute. Dedication and loyalty to

that purpose, and not self-serving interest, makes the true Judge. It is said

that a good Judge is one who has four qualities: -

(1) God’s guidance

(2) Conscience control

(3) Fanaticism for fearlessness and

(4) Handling cases in a humanitarian way.

There would be occasions when those at the helm of affairs of the

Government might directly or indirectly try to influence a Judge on some

issue. Some friends and relatives might also whisper something into the

ears of the Judge. But he has only to seek the guidance of God in deciding

his cases and he should not be influenced by emotion, regional or other

considerations, but he should only be under the control of his conscience.

Whatever might be the consequences, a Judge had always to work                                                             84 Benjamin N. Cardozo: “The Nature of the Judicial Process”, Fifth Indian Reprint

2004, pp. 9-10

43 

 

without any fear or favour. A judicial Judgment should be a judgement of

objective right and no subjective and free opinion; a verdict and not a

mere personal fiat.

According to Professor Gray, “We all agree that many cases should

be decided by the courts on notions of right and wrong, and, of course,

everyone agree that a judge is likely to share the notions of right and

wrong, prevalent in the community in which he lives; but suppose in a

case where there is nothing to guide him but notions of right and wrong,

that his notions of right and wrong differ from those of the community –

which ought he to follow – his own motions, or the notions of the

community?

Cardozo says that “My own notion is that he would by under a duty

to conform to the accepted standards of the community, the mores of the

times. In such cases one of the highest functions of the judge is to

establish the true relation between conduct and profession.85

Judge is legislating within the limits of his competence. No doubt

the limits for the judge are narrower. He legislates only between gaps. He

fills the open spaces in the law. Judge have, of course power, though not

the right, to ignore the mandate of a statute and render judgment in

despite of it. They have the power, though not the right, to travel beyond

the walls of the interstices, the bounds set to judicial innovation by

precedent and custom.86

The judge, even when he is free, is still not wholly free. He is not

to innovate at pleasure. He is not knight-errant roaming at will in pursuit

of his own ideal of beauty or of goodness. He is to draw his inspiration

                                                            85 Cardozo, Ibid, pp. 108-109 86 Cardozo: Ibid, p. 129

44 

 

from consecrated principles. He is not yield to spasmodic sentiment, to

vague and unregulated benevolence. He is to exercise a discretion

informed by tradition, methodized by analogy, disciplined by system, and

subordinated t the primordial necessity of order in the social life.87

The quest of the Judge should be certainly and justice. Of course,

uncertainty is inevitable. Judges are also subject to human limitations.

Sometimes the judge has no option but to exercise a discretion to make

new law by filling gaps where the law is silent and making it more

precise where it is vague. In deciding cases, the approach of the Judge

should always be a humanitarian way. Though he could not change the

law, he could certainly mould the law and interpret it from the

humanitarian approach.

As Motesquieu says, “The judges are only the months that

pronounce the words of the law, inanimate being, who can moderate

neither its force nor its rigor.”88

Marshall, in Osborne V/s. Bank of the United States, 9 Wheat, 738,

866 has observed that: -

….. Judicial power is never exercised for the purpose of giving

effect to the will of the judge; always for the purpose of giving

effect to the will of the legislature; or in other words, to the will

of the law.89

President Roosevelt in his message of December 8, 1908, to the

Congress of the United States had said that: -

“The chief lawmakers in our country may be, and often are, the

juges because they are the final seat of authority. Every time                                                             87 Cardozo: Ibid, p. 141 88 As referred by Cardozo – Ibid, p. 169 89 As quoted by Cardozo – Ibid, p. 169

45 

 

they interpret contract, property, vested rights, due process of

law, liberty, they necessarily enact into law parts of a system of

social philosophy; and as such interpretation is fundamental,

they give direction to all lawmaking. The decisions of the courts

on economic and social questions depend upon their economic

and social philosophy; and for the peaceful progress of our

people during the twentieth century we shall owe most to those

judges who hold to a twentieth century economic and social

philosophy and not to a long outgrown philosophy; which was

itself the product of primitive economic conditions.”90

Cardozo has observed that:

“My duty as judge may be to objectify in law, not my own

aspirations and convictions and philosophies, but the aspirations

and convictions and philosophies of the men and women of my

time. We may figure the task of the judge, if we please, as the

task of a translator, the reading of signs and symbols given from

without. None the less, we will not set men to such a task,

unless they have absorbed the spirit, and have filled themselves

with a love, of the language they must read.91 We shall never be

able to flatter ourselves, in any system of judicial interpretation,

that we have eliminated altogether the personal measure of the

interpreter. In the moral sciences, there is no method or

procedure which entirely supplants, subjective reason.”92

One judge looks at problem from the point of view of history,

another from that of philosophy, another from that of social utility, one is

                                                            90 As quoted by Cardozo – Ibid, p. 170 91 Cardozo – Ibid, p. 173, 174 92 Geny – as quoted by Cardozo – Ibid, pp. 173-174

46 

 

a formalist, another a latitudinarian, one is timorous of change, another

dissatisfied with the present; out of the attrition of diverse minds there is

beaten something which has a constancy and uniformity and average

value greater than its component elements.”93 “Judges ought to be in

sympathy with the spirit of their times.”94

The work of a judge is in one sense enduring and in another sense

ephemeral. What is good in its endures. What is erroneous is petty sure to

perish. The good remains the foundation on which new structures will be

built. The bad will be rejected and cast off in the laboratory of the year.

Little by little the old doctrine is undermined. Often the encroachments

are so gradual that their significance is at first obscured.95

A decision part is also played by the degree of sympathy which the

court entertains towards the objective in view. Judges do weigh up

considerations of social and individualist policy and the balance does not

always work out in favour of the administration.96

It is no exaggeration, no indulgence in hyperbole, to say that a

judge is the high-priest of the constitution and its laws. To him the spirit

as much as the letter has full value. The nation cannot survive as a

democracy unless judges discharge their functions fearlessly, free from

bias and untainted by prejudices, constant in their strength of purpose,

endeavoming always to do right in every case. 97

Judge’s duty is to declare the law in accordance with reason and

justice is seen to be a phase of his duty to declare it in accordance with

                                                            93 Cardozo – Ibid, p. 177 94 Cardozo – Ibid, p. 174 95 Cardozo – Ibid, p. 178 96 Dias Ibid, p. 169-170 97 Hon’ble Mr. R.S. Pathak, C.J. H.M. Simla, Inaugurated Speech at the First

Conference of the H.P. Judicial Officers, AIR 1978 Journal 39)

47 

 

the custom. It is the customary morality of right-minded men and women

which he is to enforce by his decree.98

The constitution overrides a statute, but a statute, if consistent with

the constitution, overrides the law of ‘judges’. In this sense, judge made

law is secondary and subordinate to the law that is made by legislators.

Of course, codes and statutes do not render the judge superfluous, nor his

work perfunctory and mechanical. There are gaps to be filled. There are

doubts and ambiguities to be cleaned. There are hardships and wrongs to

be mitigated if not avoided.99 The ascertainment of intention may be the

lease of a judge’s troubles in ascribing meaning to a statute.100

The important task of the judge is to make more profound the

discovery of the latent meaning of the law as well as the filling of the

gaps which are found in every law in greater or less measure.

How does he set about his talk?

The first thing he does is to compare the case before him with the

precedents, whether stored in his mind or hidden in the books. If found,

then next step is to examine and compare them. If they are plain and to

the point, there may be need of nothing more. Judge has a authority to

settle all disputes which come before him.

The part played by the judges in the struggle between the

prerogative and Parliaments enabled them to preserve in their hands a

considerable measure of power, one aspect of which is that what becomes

‘law’ in their interpretation of statute through the operation of stare

                                                            98 Benjamin N. Cardozo –Ibid, p. 106 99 Benjamin N. Cardozo – Ibid, p. 14 100 Benjamin N. Cardozo – Ibid, p. 15

48 

 

decisis.101 Power is never without responsibility and quantum of

responsibilities bears direct ratio to the amplitude of power. Whenever

public power is vested, the beneficiary is the people.102

Whether a judge does violence to language in its total context is

not always free from doubt.

Even for a judge most sensitive to the traditional limitation of his

function, this is a matter for judgment not always easy of answer. But a

line does exist between omission and what Holmes called “misprision or

abbreviation that does not conceal the purpose”.

Judges may differ as to the point at which the line should be drawn,

but the only sure safeguard against crossing the line between adjudication

and legislation is an alert recognition of the necessity not to cross it an

instinctive, as well as trained, reluctance to do so.103

7 OBJECT OF INTERPRETATION:

Interpretation is a constitutive feature of legal practice. The need

for interpretation arises when our conventional ways of understanding

break down. Lawyers use the forms of argument to appraise claims about

what is true as a matter of law. In many cases we may call them “easy

cases”, the relevant forms of argument all point to a single conclusion.

But the forms of argument do conflict and; when they do, the Tension

must be resolved. Resolving this tension is the activity of legal

interpretation. It is in the act of interpretation that the fabric of law is

repaired, thereby enabling practitioners to go on with the practice.

                                                            101 Dias Jurisprudence, Ibid, p. 166 102 Ibid, p. 40 103 W. Friedmann, Ibid, p. 461

49 

 

The language of law has a rather dubious reputation in the lay

public. It is something that one cannot understand or at least not so easily,

it is full of special technical expressions, one can get away with saying

things in it that one cannot get away with in ordinary language or at least

not so easily, and so on. The use of legal language is a technical use of

language and thus distinct from ordinary use of language.

Communication pertaining to the domain of law takes place between the

law giver and the men of law in the first instance. This is typically one-

way communication from the law giver, who is not necessarily initiated

into the mysteries of law, to the judge and the counsel, who are

necessarily so initiated being men of law. This one-way communication

takes the form of statutes. It is often said that the statute is often

fragmentary and ill-considered and unjust.104

Statutes seek to control the future by using broad forms of classes

and categories. These are man-made, and there are inevitably casus

omissi, so that a measure of discretion is imported into every decision as

to whether a provision applied to the case in hand or not.105

Principles are complex bundles. It is well enough to say that we

shall be consistent, but consistent with what? Shall it be consistency with

the origins of the rule, the course and tendency of development? Shall it

be consistency with logic or philosophy or the fundamental conceptions

of jurisprudence as disclosed by analysis of our own and foreign systems?

How are we to choose between them? Putting that question aside, how do

we choose between them?106

                                                            104 Benjamin N. Cardozo, Ibid, p. 16 105 Dias – Jurisprudence, 5th Edition First Indian Reprint 1994, p. 167 106 Benjamin N. Cardozo, Ibid, pp. 64-65

50 

 

Words are often ambiguous. As such often it is necessary for a

judge to elucidate the meaning thereof. A court hears the evidence and

determines the facts, and any doubt as to the scope and applicability of a

given statutory provision may well be resolved by the view taken of the

facts. So discretion, even in the application of statute, is unavoidable.107

In the Middle Ages it was felt that the task of interpreting the law

should be discharged by those who ordained it, for the very word

‘interpretation’ connoted evasion.108

Under the Indian legal system equal importance is given to both (i)

Statutes and codes and (ii) Precedents. Because of the primacy of written

law, statutory interpretation assumes enormous importance. However,

India does not have any code of interpretation and statutory interpretation

function is done by judicial officer guided by different things.

Judges in India employ a variety of the methods of interpretation.

They sometimes boldly interpret certain texts, to the point of giving them

a meaning opposite to the original provisions. Sometimes judges interpret

a provision literally. They always attempt to maintain harmony between

the legislation they apply and changing times and needs. Judges are

accustomed to interpret the law and apply it to each separate instance.

They take into account reasonable, equitable moral and social needs more

than methods. The courts for doing justice many a times have ignored

statutory language and disregarded it by using different canons of

interpretation. In any event, no system of legislation has been able to

escape the need of it.

                                                            107 Dias, Ibid, p. 168 108 Dias, Ibid, p. 168

51 

 

A statute is the will of the legislature. One of the characteristics of

enacted law is its embodiment in authoritative formula. The very words in

which it is expressed – the litera scripta – constitute a part of the law

itself. Legal authority is possessed by the letter, no less than by the spirit

of the enactment. Hence it is that in the case of enacted law a process of

judicial interpretation or construction is necessary.109 The object of

interpretation is to find out the intention of the legislature.110

The task of interpretation is that of extracting from the formula all

that law contains of legal rules with a view to adapting it, as perfectly as

possible, to the facts of life.111 Its object is to enable others to derive from

the language used the same idea which the author intended to convey.

The luminous record of eminent precedents in profoundly radiant

and rich in hue and colour. It brightly throws into relief that in this

sublime task Judge are endowed to be truly the children of light; obliged

as they are to pierce through the thin veil of superficial to reach to the real

so as to do justice still standing ever alert by the letter of the law.

Language of the legislature often may lurch itself and be deficient and

words may merely prove to be the outer skin of the form shadowing the

very soul. None of these can be permitted to hold as it were the quest to

reach the reality and the search has to be from truth to truth. While at this

with all circumspection one is enjoined to put the phrases and words and

terms of law in the test-tube of “Legislative intent” erected by taking all

relevant factors into considerations112.

                                                            109 Salmond, Ibid, p. 131-132 110 Omar Tyab v. Ismial Tyab, AIR 1928 Bom., pp.69, 73 111 Julius Stone: Legal System and Lawyers’ Reasoning, First Indian Reprint 1999, p.

216 112 Jamnabai v. Suryabai, A.I.R. 974, Bom. 142.

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Sometimes the rule of constitution or of a statute is clear, and then

the difficulties vanish. Even when they are present, they lack at times

some of that element of mystery which accompanies creative energy. We

reach the land of mystery when constitution and statute are silent, and the

judge must look to the law for the rule that fits the case.113

In order that the competent court may rightly apply the appropriate

law, it is necessary that the words of the law shall be properly

constructed–interpreted.

The difficulty calling for interpretation may be: (1) which of two or

more coordinate rules to apply; (2) to determine what the law maker

intended to prescribe by a given rule; (3) to meet deficiencies or excesses

in rules imperfectly conceived or enacted. Really it is a judicial finding or

making of law where legislation or the judicial or juristic tradition is

deficient, and ought to be recognized as such.114

8 AMBIGUITY:

Ambiguity is an attribute of any concept, idea, statement or claim

whose meaning, intention or interpretation cannot be definitively resolved

according to a rule or process consisting of a finite number of steps. In

ambiguity, specific and distinct interpretations are permitted. Context

may play a role in resolving ambiguity. Ambiguity is not unlikely to be

involved in almost all use of words. The term “ambiguity” is used to

indicate situations that involve uncertainty.

The lexical ambiguity of a word or phrase pertains to its having

more than one meaning in the language to which the word belongs. The

context in which an ambiguous word is used often makes it evident which                                                             113 Benjamin N. Cardozo, Ibid, pp. 18-19 114 Roscoe Pound: Jurisprudence ,Ibid, p. 478

53 

 

of the meanings is intended. In the use of multi-defined words requires

the author or speaker to clarify their context, and sometimes elaborate on

their specific intended meaning. The goal of clear conscience

communication is that the receivers have no misunderstanding about what

was meant to be conveyed115.

By an ambiguity is meant a fresh fairly and equally open two

diverse meanings. Where the languages of doubtful meaning, or where an

adherence to the strict letter would lead to injustice, to absurdity, or to the

contradictory provisions, the duty devolves upon the court of ascertaining

the true meaning it is in this area of legislative ambiguities that courts

have to fill up gaps, clear doubts and instigate hardships which leaves a

sufficient discretion for the judges to interpret laws in the light of that

purpose,116 but it is not permissible first to create an artificial ambiguity

and then try to resolve the ambiguity by resort to some general

principles.117

Language is rarely so free from ambiguity as to be incapable of

being used in more than one sense, and to adhere to its literal and primary

meaning in all cases would be to miss its real meaning in many.

Bentham’s ideal of legislative use of language such that one word

shall always mean one thing is not likely even to be realized. It is said

that sometimes words are vague and ambiguous. Words may stand for a

variety of different things. Words and concepts have no pre-established

meaning. It varies according to context and purpose. The vagueness of

words can be clarified by distinguishing a core of settled meaning from a

                                                            115 http://www.wikipedia.com 116 Motor Owner’s Insurance Co., Ltd., v. Jadavji Keshoji Modi, (1981) 22 Guj LR

1208 (SC) 117 C.I.T., Madras v. Indian Bank Ltd., Madras, AIR 1965 SC 1473

54 

 

penumbra of border-line cases.118 The usefulness of an analysis of

“meaning” for the clarification of legal language in statutes, court

decisions and legal treatises is obvious.119 An analysis of meaning can

uncover hidden ambiguities or inarticulate value assumptions, but it

cannot indicate directions.

Normally a statutory provision consists of a general description of

some factual situation and the legal consequences ensuing from it.

Whether the general description is wide or narrow, it will have some

limits. The question before a court of law in dealing with a statute is

whether the factual situation proved before it falls within the general

description given in the statute. A real difficulty in determining the right

answer can be said to arise from an “ambiguity” in the statute. It is in this

sense that the words “ambiguity” and “ambiguous” are widely used in

judgments.120

The words of a statute when there is doubt about their meaning are

to be understood in the sense in which they best harmonise with the

subject of the enactment and the object which the Legislature has in view.

Their meaning is found not so much in a strictly grammatical or

etymological sense of language, not even its popular use, as in the subject

or in the occasion on which they are used and the object to be attained.121

Changes in the meaning of technical terms have to be reckoned with.122

                                                            118 W. Friedmann, Ibid, p. 273 119 W. Friedmann, Ibid, p. 273 120 Inland Revenue Commissioner v. Joiner, (1975) 2 All ER 1050 (HL), pp. 1058,

1059 121 Maxwell’s Interpretation of Statutes, 12th Ed. p. 76; State of U.P. v. Torlbit, AIR

1958 SC pp.414, 416; The Hyderabad (Sind) Electric Supply Co., Ltd. v. Union of India, AIR 1959 Punj 199; Amrithammal v. Marimuthu, AIR 1967 Mad pp.77, 82

122 Roscoe Pound; Jurisprudence, Vol.III, 1959 Edition, p. 491

55 

 

If a literal meaning has been given to the laws which forbade a

layman to ‘lay hands’ on a priest, and punished all who drew blood in the

street, the layman who wounded a priest with a weapon would not have

fallen within the prohibitions, and the surgeon who bled a person in the

street to save his life would have been liable to punishment. On a literal

construction of his promise Mohammed II’s sawing the Venetian

Governor’s body in two was no breach of his engagement to spare his

head; nor Tamerlane’s burying alive a garrison, a violation of his pledge

to shed no blood. On a literal construction, Paches, after inducing the

defender of Notium to a parley under a promise to replace him safety in

the citadel, claimed to be within his engagement when he detained his foe

until the place was captured, and put him to death after having conducted

him back to it; and the Earl and Argyll fulfilled in the same spirit his

promise to the laird of Glenstave, for he did not hang him until after he

had taken him safely across the Tweed to the English Bank.123

The much debated case in England is relating to the regulation

18(B) of the English Defense (General) Regulations, 1939 which

provided that: “If the Secretary of the State has reasonable cause to

believe any person to be of hostile origin or associations or to have been

recently concerned in acts prejudicial to the public safety or the defence

of the realm or in the preparation or instigation of such acts and that by

reason thereof it is necessary to exercise control over him, he may make

an order against that person directing that he be detained”. The question

before the House was whether the courts were entitled to know the cause

of the Secretary of State’s belief, and to determine its reasonableness.

Were the words “has reasonable cause to believe” ambiguous or not?

Virtually the entire eighty pages of the report were devoted to this

                                                            123 Maxwell: Interpretation of Statutes, 11th Ed., p. 17

56 

 

question. Lord Atkin took the strong view that “the words in question

have a plain and natural meaning, that that meaning has invariably been

given them in many statements of the common law and many statutes,

that there has been one invariable construction of them in the courts….”

On the other hand, the majority (Viscount Maugham, Lords Macmillan,

Wright and Romer) regarded them as ambiguous, since they might

equally mean either (1) that the Secretary of State must have reasonable

cause, or (2) that he must in good faith think he has reasonable cause or

be “satisfied” that he has reasonable cause so to believe. In the context

and in the light of the policy of the Regulation they preferred the latter,

and held therefore that the good faith of the Minister being admitted, the

court could not inquire into the reasonableness of his belief.124

More problematic are words whose senses express closely related

concepts. “Good”, for example, can mean “useful” or “functional”

(That’s a good hammer), “exemplary” (She’s is a good student),

“pleasing” (This is good soup), “moral” (a good person versus the lesson

to be learned from a story), “righteous”, etc. The various ways to apply

prefixes and suffixes can also create ambiguity125.

Syntactic ambiguity arises when a sentence can have two or more

different meanings because of the structure of the sentence-its syntax.

Syntactic ambiguity may also arise from the unfortunate juxtaposition of

words and phrases. If for example a statute declares that English law shall

apply in a newly independent part of the commonwealth and that such

English law as shall apply shall consist of “the rules of common law, the

rules of equity and the statutes in force at the date of independence”; does

this mean that all rules of common law and equity, even those coming

                                                            124 Liversidge v. Anderson, [1941] 3 All E R p. 338 125 http://www.wikipedia.com

57 

 

into force after independence, shall be in force in the new territory? Or

does it mean that only such rules of common law and equity as are in

force at the date of independence shall apply in the territory? In other

words the phrase “in force at the date of independence” may govern all

three terms “common law, the rules of equity and the statutes “or it may

govern merely the term “statutes”.126 Only re-writing the sentence or

placing appropriate punctuations can resolve syntactic ambiguity.

Semantic ambiguity happens when a sentence contains an

ambiguous word or phrase- a word or phrase that has more than one

meaning.

Questions of law could not be answered by purely logical

inference; they must be decided by reference to social, moral, political

and other factors. As Holmes remarked, “the life of the law has not been

logic, it has been experience”.127

Difficulty arises from the fact that legislation is concerned with

general classes of persons, objects and actions and must therefore employ

words of general application. Such words, however, are usually far from

precise. Though they draw boundary lines round the class of objects

which they denote, their borders are often anything but clearly marked

out; here they will be faint and hard to perceive, here vague and

wavering, and elsewhere they may disappear altogether. Consequently the

categories to which such words apply are never finally determined.

Because of this feature, which has been described as the “open texture” of

ordinary language, the use of such general terms always leaves open the

possibility of a borderline case. If the text contains omissions which make

it logically imperfect, the reason is more often that the case in question

                                                            126 Salmond, Ibid, p. 136 127 Holmes in The Common Law, p. 1 as referred to by Salmond, Ibid, p. 38

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has not occurred to the mind of the legislature, than that there exists with

respect to it a real intention which by inadvertence has not been

expressed.128 What, then, is the rule of interpretation in such cases? May

the courts correct and supplement the defective sententia legis, as well as

the defective litera legis? The answer is that they may and must.

All legal rules are far less certain than was once imagined. In so far

as rules of law are expressed in ordinary language, they too are prone to

this inherent imprecision, and even where the law defines the word with

new precision, this new definition must be given in terms of other words

belonging to ordinary language, so that uncertainty is never completely

ruled out.129

If the letter of the law is logically defective, it must be made

logically perfect, and it makes no difference in this respect whether the

defect does or does not correspond to one in the sententia legis itself.

Whether there is a genuine and perfect intention lying behind the

defective text, the courts must ascertain and give effect to it; where there

is none, they must ascertain and give effect to the intention which the

legislature presumably would have had, if the ambiguity, inconsistency or

omission had been called to mind. This may be regarded as the dormant

or latent intention of the legislature, and it is this which must be sought

for as a substitute in the absence of any real and conscious intention.130

The other case where the letter of the law need not be taken as

conclusive is where a literal interpretation of the statute would lead to

such absurdity and unreasonableness as to make it self-evident that the

legislature could not have meant what is said. For example, there may be

                                                            128 Salmond, Ibid, pp. 136-137 129 Salmond, Ibid, p. 39 130 Salmond, Ibid, p. 137

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some obvious clerical error in the text, such as a reference to a section by

the wrong number, or the omission of a negative in some passage in

which it is clearly required.

If the words used in the statute does not include the complete

thought of the legislature or if the words are equally susceptible of several

meanings the Judge has a greater liberty to interpret it and give proper

meaning to it then. It is said that when a court declares a statute as

ambiguous it asserts that some of the words used may refer to several

objects in the manner of that used does not disclose the particular object

to which the word refers. A word is but a symbol which directs the reader

to a reference, but in a case the reference is not sufficiently accurate to

make the referent determinable for the litigation before the court then in

that case it is the function of the court to make the referent determinant or

as determinant as possible from the information and evidence which is

presented to it. This exercise of the court will necessarily result in some

new meaning of the word of the statute.

O’Connor, J. expressed himself thus:

“It has been contended in this case that an ambiguity must appear

on the face of a statute before you can apply the rules of interpretation

relating to ambiguities. In one sense that is correct, and in another sense it

is not. You frequently find an Act of Parliament perfectly clear on the

face of it, and it is only when you apply it to the subject-matter that the

ambiguity appears. That ambiguity arises frequently from the use of

general words. And wherever general words are used in a statute there is

always a liability to find a difficulty in applying general words to the

particular case. It is often doubtful whether the Legislature used the

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words in the general unrestricted sense, or in a restricted sense with

reference to some particular subject matter.131

If the words of an enactment are ambiguous in the sense that they

can reasonably bear more than one meaning, that is to say, if the words

are semantically ambiguous, or if a provision, if read literally, is patently

incompatible with the other provisions of that enactment, the Court would

be justified in construing the words in a manner which will make the

particular provision purposeful.132 A provision is not ambiguous merely

because it contains a word which in different contexts is capable of

different meanings. It would be hard to find anywhere a sentence of any

length which does not contain such a word. A provision is ambiguous

only if it contains a word or phrase which in that particular context is

capable of having more than one meaning.133

When the language of the section is not only ungrammatical but

also inappropriate and keeping in mind that course have repeatedly

refused to add words to a statute unless the Act itself, on a consideration

of what it is intended to effect, makes it a matter of necessity so to do, it

is unquestionably open to the Court where, nonetheless, the intention of

the section can be seen, to construe the section as though the words were

transposed if by so doing effect can be given to the intention. Since, as

the language stands, it does not make sense or affect the apparent

intention of the section, and since a construction which, in effect,

transposes one would which may well have been inadvertently remedies

an otherwise obvious omission of a matter radically important to the

intention of the section, and obviates as well the necessity for concluding

                                                            131 Bowtell v. Goldsborough Mort & Co., Ltd., (1906) 3 CLR pp.444, 456 (Australia)

as referred to in N. S. Bindra;s Interpretation of Statutes, Ibid, p. 483 132 Union of India v. S. H. Sheth, (1977) 4 SCC 193 133 N. S. Bindra’s Interpretation of Statutes, Ibid, p. 485

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that the words to express a vital condition have been altogether left out,

the section should be construed as though the word ‘would’ were

transposed in the manner indicated.134

Where a statute uses a language of doubtful import, and has been

interpreted in a particular manner for a term of years, the interpretation

given to that obscure meaning may reduce the uncertainty to a fixed

rule.135 If the interpretation does not carry out the intention of the framers

of the Act by reason of unhappy or ambiguous phrasing, it is for the

Legislature to intervene, and if the Legislature acquiesces in it by not

amending it, it is legitimate to infer that the interpretation accord with the

intention of the Legislature.136

It is a recognized rule of interpretation that the words of the

statutes, when there is a doubt about their meaning, are to be understood

in the sense in which they best harmonize with the subject of the

enactment and the object which the Legislature has in view.137 If there is

any ambiguity in the use of a word, it has to be resolved in the light of the

object of the enactment.138 If there were any doubt or ambiguity as to the

correct interpretation of the provisions of a statute, and the Court is

dealing with benevolent legislation, the Court ought to interpret the Act

so as to prevent the mischief and to promote the remedy.139 However, in

                                                            134 Salisbury v. Gilmore, (1941) 2 ALL ER 817; Lyde v. Barnard, (1836) 5 LJ Ex 117 135 Ijjatulla Bhuyan v. Chandra Mohan Banerjee, ILR 34 Cal pp.954, 969, 970 (FB);

John Summers & Soms, Ltd. v. Frost, (1955) All ER 870 136 Ram Nandan v. Kapil Deo, 1951 SCR pp.138, 144; Chandu Kutti v. Maha Devi,

AIR 1928 Mad 534 137 Vithoba v. Govindrao, AIR 1933 Nag pp.193, 197 (FB); State of U.P. v. Ram

Naran Lal, AIR 1966 All 63 138 Rukhmanibai v. Keshavlal Ramlal, AIR 1959 MP 187; Harbans Singh v. State of

Punjab, 1972 Cur LJ pp.168, 180; R. L. Sahni & Co. v. Union of India, AIR 1966 Mad pp.416, 418; R. D. Saxena v. State Industrial Court, 1982 JLJ 702 (MP)

139 H.R. Desai v. B. M. Batliwala, AIR 1968 Bom pp.62, 67; Sevantilal Maneklal Sheth v. C.I.T., AIR 1968 SC 697

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the absence of any ambiguity, there is no question of taking any external

aid to the interpretation.140 Even if there is some ambiguity in the

language of the University Ordinance or prospectus, one should accept

the interpretation placed upon it by the syndicate.141

Where the words used are ambiguous, it would clearly be the duty

of the Court to assign to them such meaning as would give effect to the

Act and as would be consistent with the object of the Legislature in

passing the Act.142 It is but fundamental that when two interpretations are

possible that which better effectuates the intention of the Legislature

would be adopted.143

Where a Legislature have made their intentions obscure, a Judge is

bound to infer that there is no departure from the ordinary law intended,

unless expediency or some other consideration compel one to infer that it

was intended.144 Where a statute is ambiguous, the presumption that a

Legislature does not intend to interfere with vested rights is no doubt

reinforced by the absence of provisions of compensation”.145 If a

particular statute is found to be ambiguous, that is susceptible of two

meanings, one leading to the invasion of the liberty of the subject and the

other not, the latter has to be preferred on the ground that there is always

the presumption that it is not the ordinary intention of Legislature to

                                                            140 Om Prakash v. Dig Vijendra Pal, 1982 ALJ 376 (SC): AIR 1982 SC 1230 141 Miss Lalla Chacko v. State of Kerala, 1967 Ker 124; Principal, Patna College v.

Raman, (1966) 1 SCR pp.974, 985 142 Bhagwant Rambhau v. Ramchandra Kesho, 54 Bom LR 833; F.P. Misser v. Das

ILR 31 Pat 963; Kungu Govindan v. Parakkat Kuhilekshmi AIR 1966 Ker 244 (FB): 1966 Ker LJ 377; Murli Prasad v. Parasnath, AIR 1967 Pat pp.191, 196; Municipal Development Ltd v. Union of India, ILR 33 Pat 198.

143 Kode Kutimba Row v. Kode Sesharatnamamba, AIR 1967 Andh Pra pp.323, 329 (FB); Public Prosecutor v. Amrath Rao, AIR 1960 Andh Pra pp.176, 178; Gauri Kumari v. Krishna Prasad, AIR 1957 AIR 1957 Pat pp.575, 583

144 Hargovind Fulchand v. Bai Hirbai, ILR 44 Bom pp.986, 1006; Firm Ramdeo Onkarmal v. State of U.P., 1981 All LJ 850 (SC);

145 Bhola Prasad v. Emperor, 1942 FCR pp.17, 28

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interfere with the liberty of the subject.146 Where two constructions of a

provision of law are possible, the benefit of doubt must always be given

to the person on whose liberty an inroad has been made without trial.147

Where there is a reasonable ground for doubt as to the correct

interpretation of an enactment that interpretation should be adopted which

is most in favour of the person to be penalized, especially in fiscal and

penal statutes and which will prevent or will not permit an abuse of the

process of the law.148 Where an equivocal word or ambiguous sentence

leaves a reasonable doubt of its meaning which the canons of

interpretation fail to solve, the benefit of doubt should be given to the

subject and against he Legislature which has failed to explain itself.149

Where a provision is capable of two interpretations the Court

should accept that which validates the provision, rather than the one

which may invalidate it. But his principle cannot be pushed too far so as

to alter the meaning of clear words and to repeal in effect, the statutory

provisions by making them unless without holding them to be void.150

It may, therefore, be will settled that, when a statute is susceptible

of two or more interpretations, normally that interpretation should be

accepted as reflecting the will of the Legislature which is presumed to

operate most equitably, justly and reasonably as judged by the ordinary

                                                            146 Karamvir v. State, AIR 1954 J&K 7 147 Ghulam Nabi v. State, AIR 1954 J&K 7 148 Emperor v. Himanchal Singh, AIR 1930 All 265 (FB); In Re Ghin Ah Yaing, 24 IC

pp.823, 825 as referred to in N. S. Bindra’s Interpretation of Statutes, Ibid, p. 491 149 Nagin Singh v. Jaggan Natha, AIR 1944 Lah 422, quoting Maxwell on the

Interpretation of Statutes, 7th Ed. At p. 248; Narendra Kumar v. State, AIR 1972 Bom pp.184, 189, as referred to in N. S. Bindra’s Interpretation of Statutes, Ibid, p. 491

150 State of Punjab v. Prem Sukhdeo, 1977 UJ (SC) pp.281, 282; Commissioner of Sales-tax v. Radha Krishan, (1979) 2 SCC pp.249, 257; Corborandum Universal Ltd. v. Trustees of Port of Madras (1994) 1 MLW 183

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and normal conceptions of what is right and what is wrong and of what is

just and what is unjust.151

“A construction which will promote predictability of results,

maintainability of reasonable orderliness, simplification of judicial task,

advancement by Court of the purpose of legislation, and the judicial

preference for what it regards as a sounder rule of law as between

competing ones, must find favour with the Court”.152

It is well-established rule of interpretation of statutes that in case of

ambiguity in a procedural provision that construction must be accepted

which will advance the remedy rather than prevent it.153 Referring to the

application of the Law of Limitation, Fazl Ali, J., 154 observed: “where

there are two possible views under this statute, one tending to deprive a

person of his just dues and the other entitling him to recover them, there

is no reason, I do not see, why one should not lean in favour of the view

which does not entail any hardships or lead to any unjust consequence.

When a statutory enactment is ambiguous and capable of two

interpretations, one is entitled to take into consideration that there are

certain consequences which, it may be presumed, the Legislature did not

intend to bring about and to prefer a construction which avoid such

consequences rather than one which would lead to them.155 When the

Court is faced with two possible constructions of legislative language, it

is entitled to look to the results of adopting each of the alternatives

                                                            151 Kalu Ram v. New Delhi Municipal Committee, ILR (1966) Punj 145: 67 Punj LR

1190 152 Rameshwar v. Jot Ram, AIR 1976 SC 1516,; Union of India v. B. N. Prasad, AIR

1978 SC 411; Shiveshwar Prasad Singh v. Ghurahu, AIR 1979 SC 413; State of Haryana v. Sampuran Singh, AIR 1975 SC 1952.

153 Gangadhar v. Nirvachan, etc. Society, AIR 1971 MP pp.16, 19 : L. Bal Mukund v. Lajwanti, 1975 ALL LJ 256 (SC)

154 Mukhdeo v. Harakh Nayarayan, AIR 1931 Pat pp.285, 291. 155 Sheo Nandan v. Emperor, AIR 1918 Pat pp.103, 105 (FB)

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respectively in its quest for the true intention of the Parliament. In general

if it is alleged that a statutory provision brings about a result which is so

startling, one looks for some other possible meaning of the statute which

will avoid such a result, because there is some presumption that

Parliament does not intent its legislation to produce highly inequitable

results.156 When the words are capable of another interpretation which

gives effect to the policy underlying the section, such interpretation

should be preferred.157 If there are two possible interpretations, it is the

duty of a Court to accept that one which is more reasonable, more

consistent with ordinary practice and less likely to produce impracticable

results.158

While the principle of construction of a fiscal statute is that any

ambiguity in the language of the section should be resolved in favour of

tax-payer and not the State, it is not permissible for a Court to create an

ambiguity by interpretation as a preliminary to the grant of relief to the

tax-payer to which he would not otherwise be entitled,159 nor to strain and

stress the language of the section so as to enable the tax-payer to escape

the tax, when the phraseology of the section takes within its sweep the

transaction which is taxable.160 The principle is that in a taxing statute,

wherever there is ambiguity of language, the ambiguity must be resolved

in favour of the person to be taxed rather than the taxing authority.

                                                            156 Fry v. Inland Revenue Commissioners, (1958) 3 All ER pp.90, 94; Critts & CO. v.

Inland Revenue Commissioners (1953) 1 All ER pp.418, 421, as referred to in N. S. Bindra’s Interpretation of Statutes, Ibid, p. 495

157 Smt. Bobba Suramma v. Peddireddi Chandramma, AIR 1954 Andhra pp.568, 570 158 United Provinces v. Mst. Atiqa Begum, 1940 FCR pp.110, 150; AIR 1941 FC 16;

Parameshwaran v. Narayanan AIR 1950 Mad 221 159 General Commercial Corporation v. Income-tax Commissioner, AIR 1955 Mad

pp.64, 66; Abdul Karim v. Municipality, Gulbarga, AIR 1967 Mys 127. 160 Controller of Estate Duty v. Alladi Kuppuswamy, (1977) 2 SCC pp.385, 396

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The duty of the judicature is to discover and to act upon the true

intention of the legislature – the mens or sentential legis. The essence of

the law lies in its spirit, not in its letter, for the letter is significant only as

being the external manifestation of the intention that underlies it.

Nevertheless in all ordinary cases the courts must be content to accept the

litera legis as the exclusive and conclusive evidence of the sententia legis.

They must in general take it absolutely for granted that the legislature has

said what it meant, and meant what it has said.161 There are however,

cases where the letter of the law need not be taken as conclusive. The first

of these is where the law is logically defective. A Statute may suffer from

these different types of logical defect. First, it may be defective by virtue

of ‘semantic’ ambiguity. A word in an Act of Parliament may be

ambiguous as a result of the ‘open texture’ of language. A second kind of

ambiguity, which may be termed ‘syntactic’ ambiguity, arises from the

ambiguity of formal words like ‘or, ‘and’, ‘all’ and so forth. It is for

instance court is empowered to ‘fine or imprison” does this mean that the

court can either fine or imprison but not both? Or does it mean that the

court can fine, or imprison or both? In other words is the word “or” being

used exclusively or inclusively? In all such cases of ambiguity, whether

conceptual or syntactic, the letter of the Statute provides no solution.

Here the courts must decide between the two alternatives. In such a case

it is the right and the duty of the courts to go behind the letter of law and

to ascertain from other sources as best they can the principle intention

which has thus failed to attain perfect expression. A third kind of

ambiguity may be that such ambiguity may be that such ambiguities do

not arise from a failure to express accurately the intention of the

legislature. Perhaps the legislature speaks ambiguously because there is

no single and definite meaning to be expressed. If the words of the                                                             161 Salmond: Jurisprudence – 12th Edition – p.132.

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legislature are self contradictory, it is possibly due to some repugnancy

and confusion in the intention itself. If the text contains omissions which

make it logically imperfect, the reason is more often that the case in

question has not occurred to the mind of the legislature, than that there

exists with respect to it a real intention which by inadvertence has not

been expressed. In such a case the court can correct and supplement the

defective verbal expressions of the law. If the letter of the law is logically

defective, it must be made logically perfect, and it makes no difference in

this respect whether the defect does or does not correspond to one in the

intention itself. Where there is a genuine and a perfect intention lying

behind the defective text, the courts must ascertain and give effect to it;

where there is none, they must ascertain and give effect to the intention

which the legislature presumably would have had, if the ambiguity, in

consistency or omission had been called to mind. The other case where

the letter of the law need not be taken as conclusive is where literal

interpretation of the statutes would lead to such absurdity and

unreasonableness as to make itself evident that the legislature could not

have meant what it said.162

In all such cases of ambiguity, whether conceptual or syntactic, the

letter of the statute provides no solution, then the courts must decide

between the two alternatives. In such a case it is the right and duty of the

courts to go behind the letter of the law and to ascertain, as best as they

can, the principal intention of the legislature, which might failed to attain

perfect expression.163

                                                            162 Salmond on Jurisprudence – p. 137 163 Salmond, Ibid, p. 136

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9 APPLICATION OF VARIOUS MODES OF INTERPRETATION:

A statute expresses a more or less general proposition. The task of

the judge is to find how far the facts before him can be fitted into the

abstract and generalizing definition of the statute. In applications of

precedent, on the other hand, the sorting out process starts with the

comparison of one set of facts with another set of facts. Even if the judge

in either case is possessed by a strong desire to do justice rather than to be

dominated by statutory texts or precedent, he will seek to attain his

objective by different ways.164

A large majority of interpretation problems are predominantly

technical.165 There is no single set of rules of statutory interpretation. It

would be truer to speak of conflicting approaches and guidelines, largely

supported by dicta.166

A number of canons of interpretation have arisen as a result of

experience of difficulties in interpreting the particular law.

The well known principles of interpretations of statutes are as

under: -

A. Grammatical- Literal meaning Rule

B. Golden Rule

C. Mischief Rule - Functional Interpretation, Logical-Social

Engineering

                                                            164 W. Friedmann, Ibid, p. 451-452 165 W. Friedmann, Ibid, p. 456 166 Dias, Ibid, p. 170

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A. Grammatical- Literal meaning Rule:

The first and most elementary rule of interpretation is that it is to

be assumed that the words and phrases of technical legislation are used in

their technical meaning if they have acquired one, and otherwise in their

ordinary meaning, and the second is that the phrases and sentences are

construed according to the rules of grammar167.

According to Vepa P. Sarathi, the words of an enactment are to be

given their literal meaning, and if such meaning is clear and

unambiguous, effect should be given to a provision of a statute whatever

may be the consequence168.

B. Golden Rule:

The Golden Rule of interpretation is to adhere to the ordinary

meaning of the word used unless it leads to anomaly or absurdity. Where

to apply words literally would defeat the obvious intention of the

legislature and produce a wholly unreasonable result, Judge can do some

violence to the words and so achieve that obvious intention and produce a

rational interpretation.

C. Mischief Rule:

As early as the year 1584, it was observed in Hydon’s case, 3 Co.

Rep.7a, that the office of all the Judges is always to make such

construction as shall suppress the mischief, and advance the remedy, and

to suppress subtle inventions and evasions for continuance of the

mischief, and pro private commando, and to add force and life to the cure

and remedy, according to the true intent of the makers of the Act,

probono public.                                                             167 Maxwell on the Interpretation of Statute, 12th Edn.(2004), p. 28 168 Vepa P. Sarathi, “The Interpretation of Statutes”, Second Edition 1981, p. 9

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These rules are being applied by the Courts while interpreting

various statutes. These rules are here as to interpret laws so that the

legislation serves its purpose for which it was enacted. The rules examine

the wording of the particular statute and are the most common approach

of interpretation of the English legal system. The three rules take different

approaches in the interpretation and some judges use one rule while

another prefers to use another rule. That is why we have three rules not

just one. This means that in English Legal System, the interpretation of

statute may differ depending upon which judge is hearing the case. Once

an interpretation has been made, a Judge can form a new precedent for

future cases in the same area of law. Since the three rules can result in

vary varied outcomes, it is important to understand the three rules. In the

succeeding chapters, these rules are discussed in detail.