Legum Baccalaureus (LLB) -PAPER-III: INTERPRETATION OF STATUTES 4th Semester Syllabus Short Notes
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PAPER-III
SYLLABUS SHORT NOTES
UNIT – 1
MEANING AND DEFINITION OF STATUTES
MEANING: A
formal written enactment of a legislative authority that governs a city, state
or country. Typically, the statutes command or prohibit something, or declare
policy.
Synonyms: Law, Regulation, Enactment, Act,
Bill, Decree, Bill, Resolution, Motion, Order, By-law, etc.
DEFINITION: A
Statute is an enactment made by a legislature and expressed in a formal
document. The Statute States the Permanent rules enacted by the legislature of
the state, or by an organization or corporation, etc. to govern its internal
affairs.
Maxwell definition: “A Statute is the will of the
legislature.”
CLASSIFICATION OF STATUES
Statutes
can be classified into various categories based on their scope, purpose, and
origin. Common classifications include:
CLASSIFICATION
WITH REFERENCE TO THE EVOLUTION:
1. The civil Law: Legal system originating from
Roman law, focusing on codified statutes and principles.
2. The Common Law: Legal system based on judicial
precedents and case law, primarily used in English-speaking countries.
CLASSIFICATION
WITH DURATION OF TIME:
1. The Temporary Statute: Enacted for a specific period and
expires after the set time unless renewed.
2. The Permanent or Perpetual Statute: Enacted without a specified end
date and remains in force until explicitly repealed.
CLASSIFICATION
WITH REFERENCE TO THE METHOD:
1. The mandatory, Imperative or
Obligatory Statute: Provisions
must be strictly followed; non-compliance results in invalidity.
2. The Directory or Permissive Statute: Provisions are advisory and
non-compliance does not invalidate the act but may attract other consequences.
CLASSIFICATION
WITH REFERENCE TO THE CONSTITUTION:
1. The Constitutional law: Pertains to the fundamental
principles and framework of a government.
2. The Statutory law: Laws enacted by the legislative
body within the framework of the constitution.
CLASSIFICATION
WITH REFERENCE TO THE PROCEDURAL ASPECT:
1. The Substantive law: Defines rights and duties of
individuals and collective bodies.
2. The Procedural law/ Adjective Law: Outlines the processes and
procedures for enforcing substantive laws.
CLASSIFICATION
WITH REFERENCE TO THE DELEGATION ASPECT:
1. The parent Statutes or Primary
Legislation:
Enacted directly by the legislature, forming the primary legal authority.
2. The Delegated Legislation: Created by an authority empowered
by the parent statute, such as regulations or orders.
CLASSIFICATION
WITH REFERENCE TO THE EXTENT OF APPLICATION:
1. The public Statutes: Apply to the general public and
address broad societal issues.
2. The Private Statutes: Affect specific individuals or
entities, often addressing private interests.
CLASSIFICATION
WITH REFERENCE TO THE OBJECT:
1. The Codifying Statutes: Compile existing laws on a
particular subject into a systematic code.
2. The Consolidating Statutes: Combine multiple statutes into a
single, comprehensive statute.
3. The Declaratory statutes: Clarify and declare the law on a
particular issue.
4. The Remedial Statutes: Provide remedies for rights and
address wrongs.
5. The Enabling Statutes: Grant powers or rights to
individuals or bodies.
6. The Disabling statutes: Restrict or remove certain rights
or powers.
7. The Penal Statutes: Prescribe punishments for offenses
and criminal conduct.
8. The Taxing statutes: Impose taxes and outline tax
obligations and procedures.
9. The Explanatory Statutes: Clarify the meaning or scope of
existing statutes.
10. The Amending Statutes: Modify, add to, or repeal existing
statutes.
11. The Repealing Statutes: Abolish existing statutes, either
entirely or in part.
12. The Curative or Validating Statutes: Correct errors or validate
previous legal actions or statutes.
MEANING AND DEFINITION OF INTERPRETATION
Meaning:
Interpretation, in the legal context, refers to the process of deciphering and
understanding the meaning and intent behind statutes. It involves analyzing the
language of the law and applying established principles to ascertain its true
interpretation and application.
Definition:
Birkhenhead: The duty of the court is to
expound the law as it stands, and to leave the remedy if one be resolved upon
the remedy.
GENERAL PRINCIPLES OF INTERPRETATION
Several
overarching principles guide the interpretation of statutes, ensuring that the
intent of the legislature is accurately understood and applied. These
principles are categorized into primary and secondary rules of interpretation.
PRIMARY
RULES OF INTERPRETATION OR GRAMMATICAL RULE OF INTERPRETATION:
1. Literal Construction: The statute is interpreted based
on the plain and ordinary meaning of the words used. This approach prioritizes
the exact wording of the statute without considering external factors.
2. Golden Rule of Interpretation: When the literal interpretation
leads to an absurdity or inconsistency, the golden rule allows for a
modification of the meaning to avoid such outcomes while staying close to the
literal interpretation.
SECONDARY
RULES OF INTERPRETATION OR LOGICAL/FUNCTIONAL INTERPRETATION:
1. Mischief Rule/ Hyden’s Rule/
Purposive Construction/ Regard to subject and Object: This rule aims to determine the
"mischief" or problem the statute was intended to remedy. The focus
is on the purpose and object of the statute, considering the context and
legislative intent.
2. Sententia Legis (Legislative
Intent/ Determination of Legislative intention): This principle involves
understanding the intent of the legislature by examining the language, context,
and purpose of the statute.
3. “Statute must be read as a whole”: The entire statute is considered
to ensure a coherent and consistent interpretation of its provisions. This
principle avoids interpreting sections in isolation.
4. Liberal Construction: This approach interprets statutes
broadly to fulfill their purpose and promote justice. It is often applied in
remedial and beneficial statutes.
5. Harmonious Construction: When there are conflicting
provisions within a statute or between statutes, this principle seeks to
reconcile the differences, ensuring that all provisions are given effect
without contradiction.
6. Beneficent Construction: This principle interprets statutes
in a way that benefits the individuals or groups for whom the statute was
enacted, promoting fairness and justice.
7. Strict Construction: Primarily applied to penal and
taxation statutes, strict construction ensures that individuals are not
unfairly penalized by interpreting ambiguous language narrowly.
8. Restrictive Construction: Similar to strict construction,
restrictive construction limits the scope and application of statutory
provisions to prevent overreach or unintended consequences.
RULES OF CONSTRUCTION UNDER THE GENERAL
CLAUSES ACT, 1897.
In
England, the first interpretation Act, known as the Lord Brougham’s Act, was
passed as far as 1850. In 1889, the 1850 was replaced by the interpretation
act, 1889. This 1889 Act is the source of subsequent interpretation, not only
in England, but also in other countries of the Commonwealth. The provisions of
the Lord Brougham’s Act, with a few additions, were adopted in India, enacted
as the General Clause Act, 1868. A supplementary general clause Act was later
enacted as the general Clauses Act, 1887.
The
General Clauses Act, 1897, provides additional rules of construction for
interpreting statutes:
Interpretation
of Expressions:
The Act defines various terms and expressions commonly used in statutes,
providing clarity and uniformity in interpretation.
Reference
to Authorities:
When a statute refers to another enactment or authority, the provisions of that
enactment or authority shall apply unless expressly provided otherwise.
Gender
and Number: According
to Section 13, words importing the masculine gender are deemed to include
females, and words in the singular include the plural and vice versa, unless
there is something repugnant in the subject or context.
UNIT – 2
GRAMMATICAL RULE OF INTERPRETATION
The
Grammatical construction is one of the basic rules of interpretation of
statutes, which implies that the court should collect the intention of the
makers of the statues, deeds or wills from the words used in them only. The
literal construction of a statutes is to find out the true sense by making the
statute its own expositor. The Literal construction is also called as the
grammatical construction. The term grammatical construction was used first by
salmond.
The
grammatical rule of interpretation is based on the principle that statutes
should be interpreted according to the ordinary meaning of their words and
phrases. This means that the language used in a statute is given its natural
and grammatical interpretation, without reading into it or adding extraneous
meanings.
For
example, if a statute states that "vehicles are prohibited in the
park," the grammatical interpretation would mean that all types of
vehicles, including cars, bicycles, and motorcycles, are not allowed in the
park.
GOLDEN RULE OF INTERPRETATION
According
to the golden rule, in the construction of a statute, the courts must adhere
to the ordinary meaning and grammatical construction of the words used.
The
golden rule of interpretation is employed when the literal interpretation of a
statute leads to absurdity or injustice. In such cases, the court may depart
from the literal meaning and adopt an interpretation that aligns with the
intention of the lawmakers or avoids unreasonable outcomes.
For
instance, if a statute prohibits the possession of "arms" in a
certain area, and someone is found carrying a prosthetic arm, the literal
interpretation would lead to an absurd result. In this scenario, the court may
apply the golden rule to interpret "arms" as weapons rather than
literal body parts.
For
First time, the golden rule of interpretation is propounded in Grey Vs. Pearson
(1857) 6 HL Cas 61.
Lord Granworth L.C. Commended this principle and said
it is a ‘CARDINAL RULE’.
Lord Ellenborough appreciated it ‘as a rule of
common sense as strong can be’.
RULE OF INTERPRETATION TO AVOID MISCHIEF
The
Mischief Rule of Interpretation is also called by the three other names i.e.,
‘The Heydon’s Rule’, ‘the Purposive Construction Rule’ and ‘with regard to
subject and object.’
In
some cases, certain difficulties arise in interpretating the construction of
sentences, phrases and their true meaning and their application to dispose of
the case. The construction of Sentences and phrases may give double meaning and
absurdity. They may stand hurdle in coming to satisfactory conclusion. To solve
such circumstances, ‘Mischief rule of interpretation’ is taken to help.
This
Mischief rule says that judges must go deep to see the intention of legislature
and object of the statute to find out what is the mischief sought to be
remedial by the legislature.
The
rule of interpretation to avoid mischief, also known as the mischief rule,
focuses on interpreting statutes in a way that prevents or addresses the
mischief or problem that the law was intended to remedy. This rule allows
courts to look beyond the literal meaning of words and consider the underlying
purpose or intention behind the statute.
For
example, if a statute imposes restrictions on the sale of alcohol near schools
to prevent underage drinking, the court may interpret the statute broadly to
encompass any activity that could contribute to the mischief, such as promoting
alcohol consumption among minors.
60TH REPORT OF LAW COMMISSION OF INDIA, 1974
ON GENERAL CLAUSES ACT, 1892.
The
60th Report of the Law Commission of India, released in 1974, provides a
comprehensive examination of the General Clauses Act, 1897. This report
critically evaluates the provisions of the Act and identifies areas where
amendments or improvements are needed to enhance its effectiveness in legal
practice. It offers insights into issues related to interpretation,
application, and gaps in the existing legal framework.
Key
highlights of the 60th Report may include:
Analysis
of Existing Provisions:
A thorough analysis of the provisions of the General Clauses Act, assessing
their clarity, coherence, and alignment with contemporary legal principles and
practices.
Identification
of Lacunae:
Identification of gaps or ambiguities in the Act that hinder its application or
lead to inconsistent interpretations by the judiciary.
Recommendations
for Reform:
Proposals for amendments or reforms to address the identified shortcomings and
enhance the Act's utility in statutory interpretation and legal proceedings.
183RD REPORT OF LAW COMMISSION OF INDIA,
2002 ON GENERAL CLAUSES ACT, 1892.
The
183rd Report of the Law Commission of India, issued in 2002, continues the
examination of the General Clauses Act, building upon the findings and
recommendations of previous reports. This report reflects on the evolution of
legal principles and practices since the enactment of the General Clauses Act
and assesses its continued relevance and effectiveness in the contemporary
legal landscape.
Key
aspects covered in the 183rd Report may include:
Review
of Previous Recommendations:
An evaluation of the implementation status of recommendations made in earlier
reports, including the 60th Report, and an assessment of their impact on
statutory interpretation and legal proceedings.
Emerging
Challenges:
Identification of new challenges or developments in legal practice and
statutory interpretation that necessitate further amendments or reforms to the
General Clauses Act.
Proposed
Amendments:
Additional proposals for amendments or reforms to address evolving needs and
ensure the Act remains a robust and reliable tool for statutory interpretation
and legal practice in India.
UNIT - 3
INTERPRETATION OF PENAL STATUTES & STATUTES
OF TAXATION
Taxing
& Penal Statutes are to be strictly construed, While beneficial legislation
like ESI (Employees State Insurance) Act, Contract labour Act (or) EPF
(Employees Provident Fund) Act should be liberally construed.
Penal Statutes:
Any
status which imposes A penal liability on the person who is found to be guilty
on any offense according to the provision of the statute is said to be penal
status. Thus, the essential ingredient is punishing certain act/wrongs.
Interpreting
penal statutes requires careful consideration due to the serious consequences
involved. Courts often adopt a strict approach, ensuring that individuals are
not unfairly penalized while upholding the legislative intent behind the law.
Key principles include:
Strict
Construction:
Penal statutes are construed strictly, meaning that any ambiguity or
uncertainty is resolved in favor of the accused to avoid unjust punishment.
Presumption
of Innocence:
Courts presume that individuals are innocent until proven guilty, and any
interpretation of penal statutes must align with this fundamental principle of
criminal law.
Legislative
Intent:
Understanding the purpose and objectives behind penal statutes is crucial for
accurate interpretation, as courts strive to give effect to the lawmaker's
intentions while applying the law.
Statutes related to taxation:
It is enforced by the government body taxing
status (or) Fiscal status are the legal framework consisting of the tax law or
tax code that requires individuals or business assets to pay taxes. Key
considerations include:
Revenue Maximization: Statutes of taxation are
interpreted with the objective of maximizing revenue for the government while
ensuring fairness and compliance among taxpayers.
Clarity and Certainty: Tax statutes must be clear and
precise to avoid confusion or ambiguity, as taxpayers have a legal obligation
to comply with the law.
Economic Impact: Courts may consider the economic implications of tax
statutes, including their effects on investment, employment, and overall
economic growth.
BENEFICIAL CONSTRUCTION OF STATUTES
The
person, who gets some profit or advantages, is called beneficiary. The
Beneficiary is one who is Beneficially entitled to or interested in the
property or right. He is entitled to it for his own benefit.
The
principle of beneficial construction requires courts to interpret statutes in a
manner that promotes the public good and advances the legislative purpose. This
principle is particularly relevant in cases where statutes confer benefits or
privileges upon individuals or groups.
For
example, if a statute grants tax exemptions to charitable organizations, courts
may interpret the statute broadly to include a wide range of activities that
promote the public welfare, consistent with the legislative intent to encourage
philanthropy and social welfare initiatives.
CONSTRUCTION TO AVOID CONFLICT WITH OTHER
PROVISIONS
When
two provisions in the same statutes or in different statutes contain different
purpose to achieve, it is the duty of the court to bring harmony between them.
It is called the ‘Harmonious Construction’. This principle ensures coherence
and harmony within the legal framework, promoting certainty and predictability
in legal outcomes.
For
instance, if two provisions of a tax statute appear to conflict with each
other, courts may interpret them in a way that reconciles the apparent
contradiction and gives effect to both provisions to the extent possible.
DOCTRINE OF HARMONIOUS CONSTRUCTION
When
a certain legislative enactment is passed it is ensured that the text of the
law is clear and not ambiguous. In case of inconsistency between two or more
statues and sections the doctrine of harmonious construction is followed.
The
doctrine of harmonious construction emphasizes the importance of interpreting
statutes in a manner that reconciles apparent conflicts or inconsistencies
between different laws or provisions. Courts aim to give effect to all relevant
provisions while maintaining the coherence and integrity of the legal
framework.
For
example, if two
statutes appear to overlap in their application, courts may interpret them
harmoniously to ensure that both laws are given effect without undermining each
other's purpose or objectives.
Case
law: Shankari
prasad Vs. Union of India – conflict between Fundamental Rights and DPSP: Court
gave judgement that they are two sides of a coin as they are for public good
UNIT – 4
EXTERNAL AIDS TO INTERPRETATION
External
Aid to interpretation of statutes are sources of information & guidance
utilized by the courts & legal professionals to understand the meaning and
intent denying a particular statute.
These
aids are external to the statutes text & provide supplementary context for
its interpretation.
A.
The legislative history
B.
The
committee reports
C.
Debates
& Statement made by law makers during the draft process.
Reports of commissions, Commissions’
proceedings in the parliament, Bills, Statement of objects and reasons,
Practise under the laws relating to different subjects, social and political
history, Public sentiments, historical facts and surrounding circumstances,
policy of the ruling party, contemporanea exposition, Executive decisions,
Usages, precedents, Obiter Dicata, Stare decisis, Foreign decisions,
dictionaries, etc., are the external matters to the statute. These are helpful
to certain extent to understand and interpret the statutes. Hence these are
called the ‘External aids to interpretation’. These are also called as the ‘Surrounding
circumstances’ useful for the interpretation. These are also called as
the “Extrinsic Sources of a statute” or “Extraneous sources
of interpretation”. A Process by which the courts attempt to determine
the true meaning & True intention of the termed word and phrase.
Case law(s): Doypacksystems Pvt. Ltd. Vs. Union
of India (AIR 1988 SC 782
STATEMENT OF OBJECTS OF LEGISLATION, LEGISLATIVE
DEBATES, IDENTIFICATION OF PURPOSE SOUGHT TO BE ACHIEVED THROUGH LEGISLATION
When
interpreting statutes, understanding the legislative intent is crucial. Three
important aspects that aid in this understanding are the statement of objects
of legislation, legislative debates, and the identification of the purpose
sought to be achieved through the legislation.
Statement
of Objects of Legislation
1.
Purpose
and Scope: The
statement of objects and reasons is usually included in the preamble or the
introductory section of a bill. It outlines the purpose, scope, and objectives
that the legislation aims to achieve. This statement helps in understanding the
broader context and the legislative intent behind the statute.
2.
Guidance
for Interpretation:
The statement serves as a guide for judges and legal practitioners to interpret
ambiguous provisions in a manner consistent with the intended objectives. It
provides insight into the problem the legislature aimed to address and the
goals it sought to achieve.
Legislative
Debates
1. Contextual Understanding: Legislative debates, which occur
during the passage of a bill, offer valuable insights into the legislators'
thoughts and discussions. These debates can highlight the concerns,
considerations, and motivations behind the enactment of specific provisions.
2. Clarifying Ambiguities: When statutory language is
ambiguous or unclear, references to legislative debates can clarify the
intended meaning. Judges often review these debates to resolve interpretative
disputes by understanding how legislators discussed and understood the provisions.
3. Historical Record: Legislative debates serve as a
historical record of the legislative process, capturing the evolution of the
bill from proposal to enactment. This historical context can be crucial for
interpreting statutes in light of changing social, economic, and legal
landscapes.
Identification
of Purpose Sought to be Achieved Through Legislation
1. Purposive Interpretation: The purposive approach to
statutory interpretation focuses on the purpose and objectives of the
legislation. By identifying the underlying purpose, judges aim to interpret the
statute in a way that best fulfills its legislative intent.
2. Addressing Social Issues: Many statutes are enacted to
address specific social, economic, or political issues. Identifying these
issues helps in understanding the statute's broader impact and its role in
advancing public policy objectives.
3. Implementation and Enforcement: Understanding the purpose of
legislation aids in its effective implementation and enforcement. It ensures
that the statute is applied in a manner consistent with its intended goals,
promoting justice, equity, and the public interest.
INTERNAL AIDS TO INTERPRETATION
Preamble,
Title, marginal notes, punctuation marks, headings, sections, illustrations,
provisios, exceptions, explanations, repealing and saving clauses, schedules,
rules, forms, and especially entire context are the parts of the statute. These
are the internal parts are very much helpful in interpreting the statute. Hence
these are called the ‘Internal aids of interpretation’. These are also called
as the “Intrinsic sources of Interpretation” the statute in itself.
PREAMBLE
Every
statute starts with the preamble. The Preamble is the key to the intention of
the legislature. However, this rule applies only when the language of the
enacting portion of the act is ambiguous or doubtful or produces in its
ordinary meaning any absurdity or unreasonableness.
The
preamble of the constitution of India is a brief introductory statement that
sets out the guiding purpose & principles of the document & it
indicates the sorce from which the document derives its authority, meaning
however it cannot overwrite the provision of the enactment. Thus, a preamble is
an authority & expressionary statement in a document that explains the
document purpose & underlying philosophy. When applied to the opening
paragraphs of a statute, it may recide historical facts pertained to subject of
the statute.
TITLE
The
title of a statute can offers clues about its subject matter and scope. While
not conclusive, the title may provide guidance on the interpretation of
specific provisions within the statute.
1. Every act contains a ‘Title’.
The end of the title of every statute contains the year in which it is enacted.
The parliament or the state legislature enacts several acts in every year. It
gives serial number to such acts. The serial number of the act also becomes the
part of the title. The title of the statute is also called as ‘Short Title’.
Ex: The Indian Penal code, 1860 (Act
No. 60 of 1860); The transfer of property act, 1882 (Act No. 4 of 1882); The
civil procedural Code, 1908 (Act No. 5 of 1908) etc.
2. There are no strict rules imposing
upon the length of the title. Some Acts contain three or four words. Some Acts
contain titles, having more than ten words.
3. Sec 28 of the General clauses Act,
1897 says: “An Act or regulation may be cited by reference to the title or
short title (if any) conferred thereon”.
Ex: I.P.C ; The criminal Major Acts
(I.P.C, 1860 + Cr.P.C, 1973 + IEA,1872)
INTERPRETATION CLAUSE
Some
statutes contain specific interpretation clauses defining key terms or phrases
used in the law. These clauses help clarify the meaning of ambiguous terms and
facilitate consistent interpretation by courts and legal practitioners.
Almost
all the modern statutes contain the interpretation clause. The interpretation
clause is also called as the ‘Definition clause’. Generally, this clause is
seen in second or third or fourth sections, as the case may be, in every Act.
The framers of the Act give the important definitions for particular terms,
which would occur frequently in that act.
MARGINAL NOTES
Marginal
notes or headings accompanying sections of a statute can provide a brief
summary or overview of the content covered in each section. While not part of
the enacted law, they may assist in understanding the structure and
organization of the statute.
In
certain occasions, the legislature writes the marginal note behind the section.
Such marginal note furnishes some clue as to the meaning and purpose of the
section. This helps to understand the intention of the legislature The
mischief, if creeps in the section, can be removed by MARGINAL NOTES. Marginal
notes clarifies the meaning of the section.
Marginal
notes is an abstract of the section. It is just a key to the section. It
signifies the intention of the legislature. If the language of section is plain
and unambiguous, it can afford little guidance to the construction of section.
EXPLANATIONS
Statutes
may include explanations to elucidate the meaning or application of specific
provisions. These internal aids help clarify ambiguous language and guide
interpretation.
The
act or result of explaining. An explanation may be added to enacting clause or
section to include something within or to exclude something from the ambit of
the main enactment or connotation of some word occurring in it. It harmonises
and clears up any ambiguity in the enacting clause. It clarifies any doubt in
the enacting clause.
Ex: Section 15 of The Indian Contract
Act, 1872 defines ‘Coercion’, and gives an explanation.
PRESUMPTIONS
A
presumption is a conclusion drawn from the proof of facts or circumstances, and
stands as establishing facts until overcome by contrary proof. A presumption is
an inference as to the existence of a fact not actually known arising from its
connection with another which is known.
A
presumption is a probable consequence drawn from facts (either certain, or
proved by the direct testimony) as to the truth of a fact alleged but of which
there is no direct proof. It is an act of reasoning. A presumption is an
acceptance of a fact as true or existent based upon its strong probability
evident from the circumstances.
Ex:
According to Section 107 of the Indian
Evidence Act, 1872, if a man has not been heard from for seven years by his
closest relatives, the Court may believe in that the man is dead. This is a
presumption. Of course, this presumption only applies at the beginning. For
example, the opposite party can show letters by the person or recent photograph
of the person showing that he is still alive.
KINDS
OF PRESUMPTION:
There are two kinds of presumptions in English Common Law:
A. Presumption of Fact:
Presumption of facts are those
presumption about things or events that happen in day to day life, which the
Courts accept as true due to inference drawn logically and naturally by common
human mind.
Example: The presumption that a man with
blood stained clothes and a knife in his hands is the murderer. Such
presumptions are rebuttable from further evidence.
B. Presumption of Law:
Presumption of law is arbitrary
consequences that are annexed by law to particular facts. They are also called
as the "Legal Fictions". They may not be same as the inferences that
we may ordinarily draw but the law prescribes that such inference may be drawn.
Example: It is a presumption of law that a
child below seven years of age is not capable of committing a crime. A person
who has not been heard from for seven years is dead. Such presumptions may or
may not be rebuttable depending on the law. The presumption that a child below
seven years of age is not capable of committing a crime cannot be rebutted. Law
presumes the age of the child as a conclusive proof of his innocence. However,
the presumption that a person is dead when he is not heard from for seven years
is rebuttable by showing evidence.
UNIT - 5
EFFECT OF REPEAL
Whenever
an Act is repealed, it must be considered, except as to transactions past and
closed, as if it had never existed. The effect thereof is to obliterate the Act
completely from the record of the Parliament as if it had never been passed it,
it never existed except for the purpose of those actions which were commenced,
prosecuted and concluded while it was existing law.
Legal fiction is one which is not an actual
reality and which the law recognises and the Court accepts as a reality.
Therefore, in case of legal fiction, the Court believes something to exist
which in reality does not exist. It is nothing but a presumption of the
existence of the state of affairs which in actuality is non-existent. The
effect of such a legal fiction is that a position which otherwise would not
obtain is deemed to obtain under the circumstances.
Therefore,
when Section 217(1) of the Act repealed Act 4 of 1939 in effect came to be
non-existent except as regards the transactions, past and
closed or saved.
Section
6 of General Clause Act, 1897 explains about effect of repeal.
EFFECT OF AMENDMENTS TO STATUTES
An
amendment is a formal or official change made to a law, contract, constitution,
or other legal document. It is based on the verb to amend, which means to
change. Amendments can add, remove, or update parts of these agreements. They
are often used when it is better to change the document than to write a new
one. The provisions, i.e., Article, Section, Rule, Schedule, etc., of a statute
may be amended by the competent legislature depending upon the
social circumstances.
Modification
of Existing Law: Amendments to statutes introduce changes or modifications to
existing laws. They may add, delete, or modify provisions to reflect evolving
societal needs, legal principles, or policy objectives.
Interpretative
Challenges: Interpreting amended statutes requires careful consideration of the
original text, legislative history, and the nature and purpose of the
amendments. Courts strive to give effect to legislative intent while ensuring
consistency with established legal principles.
Amendment
to the constitution of India:
Ex:
The words 'Sovereign Socialist Secular Democratic Republic' and 'unity and
integrity of the Nation' have been inserted in the Preamble of the Constitution
of India, 1950, by the Constitution (Forty-second Amendment) Act,
1976, w.e.f. 3-1-1977.
CONFLICT BETWEEN PARENT LEGISLATION AND
SUBORDINATE LEGISLATION
Definitions
given by Salmond:
LEGISLATION is a source of law which contains
in the declaration of legal rules by a competent authority.
Kinds:
-
Supreme
Legislation / Parent legislation
-
Subordinate
Legislation/ Delegated Legislation
The
SUPREME LEGISLATION proceeds from the supreme or sovereign power in the
state, and which is therefore incapable of being repealed, annulled or controlled
by any other legislative authority.
SUBORDINATE
LEGISLATIVE is
that which proceeds from any authority other than the sovereign power, and its
therefore dependent for its continued existence and validity on some superior
or supreme authority.
Kinds
of Subordinate legislation:
1. Colonial
2. Executive
3. Judicial
4. Municipal
5. Autonomic Legislation
REASON
FOR THE CONFLICT BETWEEN THE PARENT LEGISLATION AND SUBORDINATE LEGISLATION:
Certain
times, a G.O. or a notification may be issued by a department in contravention
of the parent statute. This is occurred due to several factors:
1. Negligence by the subordinate
bodies.
2. Lack of legal knowledge in the
subordinate bodies.
3. Due to the speed of issuing the
subordinate legislation.
4. Intentional drafting a G.O. or a
notification by the subordinate bodies due to corruption.
5. Rivalry between the central
government and a state government.
6. Political interest by a state government.
Ex: The Tamil Nadu State Government
issued a notification releasing the murders of late Rajiv Gandhi, Ex-PM.
METHODS OF INTERPRETING SUBSTANTIVE AND
PROCEDURAL LAWS.
Procedural
law consists of
the set of rules that govern the proceedings of the court in criminal lawsuits
as well as civil and administrative proceedings. The Court needs to conform to
the standards setup by the procedural law, while during the proceedings. These
rules ensure fair practice and consistency in the "due process" or
the "fundamental justice".
The Substantive
law is a statutory law that deals with the legal relationship between the
people or the people and the State. Therefore, the substantive law defines the
rights and duties of the people, but the procedural law lays down the rules
with the help of which they are enforced.
|
The Substantive Law |
The Procedural Law |
|
Deals with those area of law
which establish the rights and obligations of individuals, what individuals
may or may not do. |
It deals with and lays down the
ways and means by which substantive law can be enforced. |
|
Independent powers are empowered
to decide the fate of a case, |
The procedural law have no
independent powers. |
|
It cannot be applied in non-legal
context. |
They can be applied in non-legal
context. |
|
They are enacted and regulated by
the parliament or the government implementations. |
They are regulated by the
statutory law. |
Textual
Interpretation:
Courts begin with the plain and ordinary meaning of the text, considering the
language, structure, and context of the statute. Textual interpretation ensures
adherence to the legislative text and promotes predictability in legal
outcomes.
Contextual
Interpretation:
Contextual interpretation involves examining the legislative history, purpose,
and objectives of the statute to discern the lawmaker's intent. It considers
extrinsic sources, such as legislative debates, reports, and statements of
legislative intent, to clarify ambiguous language or resolve interpretative
disputes.
Purposive
Interpretation:
Purposive interpretation focuses on achieving the underlying purpose or
objectives of the statute, even if it requires departing from the literal
meaning of the text. Courts prioritize the legislative intent and the broader
societal or policy goals behind the law.
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DOWNLOAD SYLLABUS SHORT NOTES PDF of INTERPRETATION OF STATUTES:
DOWNLOAD - Interpretation of Statutes short Notes Download (Date: 07-08-2024)
DOWNLOAD - Interpretation of Statutes IMP Q&A (Date: 21-08-2024)
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P-II: Public International Law
P-III: Interpretation of Statutes
P-V: Intellectual Property Law
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Note: Some of the short notes are intended for a basic understanding of the subject topics. For a more in-depth understanding, please refer to the textbooks.
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