Anda di halaman 1dari 20

LEGISLATION

Legislation Derived from -2 latin words Legis Law , Latum - to make , put or set
Etymologically Legislation means Making or setting of Law.
Salmond ; Legislation is that source of law which consistes in the declaration of legal rules by a
competent authority .
Gray : The formal utterances of the legislative organs of the society .
Holland : The making of general orders by our Judges is as true legislation as is carried on by the
crown . Again , in legislation both the contents of the rule are devised and the legal force is given to
it by acts of the sovereign power which produce written law .All other sources which produce what is
called unwritten law to which the sovereign authority gives its whole legal force , but not its content ,
which are derived from popular tendency , professional discussion , judicial ingenuity or otherwise , as
the case may be .
Austin : There can be no law without a legislative act .
The term legislation is sometimes used in a wider sense to include all methods of law making.
Legislation includes every expression of will of the legislature .In this every Act of Parliament is an
instance of legislation , irrespective altogether of its purpose and effect .The legislation does not confine
its action to the making of rules , yet all its functions are included in it .
Law which has its source in legislation is enacted and other are unenacted .Statute law does not extend
to all modes of legislation but limited to Act of Parliament .
Romans declared Unwritten Law as Jus Non Scriptum WhIch are customary common law and
residue as written law by Jus Scriptum-Which are enacted law .
Legislation Source of Law
In analytical school a typical law is statute and legislation is normal process of law making .They do
not approve of the usurpation of the legislative functions by the judiciary .& do not claim custom to be
source of law.Therefore Analytical school regard legislation as the sole source of law and does not
attach any importance to custom and precedent.
Historical school regards as legislation not a source of new law .The view is that legislation is the least
creative of the sources of law. And no independent creative role at all .Its only legitimate purpose is to
give a better form and make more effective the custom spontaneously developed by the people.
Dean Pound: 2 types of legislation Organising type and creative type .

LEGISLATION

SUPREME
LEGISLATION

COLONIAL

SUBORDINATE
LEGISLATION

EXECUTIVE

JUDICIAL

MUNICIPAL

AUTONOMOUS

Salmond : Legislation is either supreme or subordinate


SUPREME LEGISLATION

Supreme legislation is that which proceeds from the sovereign or supreme power in the state .It
cannot be repealed , annulled or controlled by any other legislative authority.
According to Austinian Theory :It is logically impossible for there to be any legal limitation on the
sovereign authority i.e. if the law is the command of the sovereign and sovereign is that body which
enjoys general obedience and owes obedience to no other body then clearly sovereign cant be bound by
law.If it is bound by and owes obedience to other then there is no sovereign at all.
When he explains law and sovereign in terms of obedience he fails to explain sovereign is that question
of law than fact.
For sovereign the body which is not a body enjoying obedience but whose decree qualify as law
within legal system .The existence of sovereign entail existence of rules of law in which defines
Identity and composition of sovereign.
Procedure according to which sovereign is to legislate (these rules help to find law making body
and decrees which has to enjoy legal authority ).
The area within which the sovereign competent to legislate .This kind of constitutional limitation
occurs in written constitution of many states.
In England the attitude of court expressed a sWe sit here as the servant of Queen and Legislature.This
doctrine of parliamentary supremacy has been that
Parliament not only supreme but legally omnipotent .
An act of parliament cant for instance held void for unreasonableness.
No legal limit upon power of parliament -expounded by Dicey and became common place of
book on constitutional law.(except the inability to bind successors.)
Question of whether a parliament can bind its sucessors
If this could then of course the authority of later parliament would be limited by and less than
that of earlier.There have been statutes in which parliament has purported to achieve this objective .The

statute of Westminster 1931 enacted Act that no Act of UK parliament should extend to a dominion
without that Dominions consent.
The logical argument in notion of parliament whether parliament can bind its sucessors has
same difficulty as House of Lords bound by its own decisions .
The proposition enunciated is binding on H.O.L if there s a rule of law that H.O.L is bound by its own
decisions.
Can a parliament bind itself:This impossibility are based partly on logic and partly on
law.It would seem that parliament may bind itself bya statute only if there existd a rule to the effect that
parliament may do this.
The basic rule is that What parliament enact is law .-Whether parliament can by enactment
modify /alter this basic rule .This rule split into several subrules including composition of parliament
&procedure necessary for enactment of statute .Some rules dispensed by statute for certain purposes.
The Parliament Act of 1911 Abolished money bill to receive consent of H.O.L
Parliament dispense with all the subrule-EG. Commit legal suicide by dissolving itself and enacted
that it should never be called & transfer power to some other body such as Manchester corporation.
In the above two cases there is no alteration of basic rules of recognition What parliament enact is
law
In 1ST Parliament need not act Parliament enact money bill & enactment qualify as statute having
force of law
In 2ND Parliament willnt be there to act
Parliament transfer power to Manchester corporation W/O dissolving itself
Manchester corporation would have authority to law but this wont extinguish parliament own law
making authority
If parliament were to resume the practice of enacting statutes , these in logic and on principle it
seems would qualify as laws.
Problem-With regard to statute of Westminster they have a rule
1. what parliament enact is law
2. In certain type of enactment legislation extending to Dominion W/O its consent , do not count
as law &hypothetical statute purporting to extend to a Dominion in contravention of Rule 2
3. Here if the statute is invalid because it contravenes the rule2 which derives validity from rule 1
Q Why Rule 1 afford validity to rule 2 W/O affording equal validity to statute.
Why not contended that rule in statute governs and overrides rule 2 and that parliament has not
bound itself .
Because when
: Rule2
TO
It precedes in time

Statute

Statute
TO
Rule2
It is the later and indeed the rule in
England that later statute impliedly repeals
earlier one which it conflicts

* The legal argument that Parliament cant bind itself traditional -&judges cant look behind the
parliamentary roll.
Eg:Authority for this is Edinburgh & Daiketh Railway company Vs. Wauhope-Observed
All that a court can do is to look at parliamentary roll:if
Bill has passed both the Houses and Received Royal assent
It cant enquire into:the mode in which it was introduced into parliament
What was done previous to the introduction

What passed in parliament during progress in various stages at both houses.


*Lex Angliae Sine Parliamento Mutari Non potest -Law of England cant be changed except by
parliament .
In England rules to sovereignty define
Composition of parliament
Procedure for legislation.
No strict rules restricting the ambit of Parliament
SUBORDINATE LEGISLATION

Subordinate legislation is that which proceeds from any authority other than the sovereign
power.It is dependent for its continued existence and validity on some superior authority .
Enactments of legislative bodies inferior to the sovereign constitute subordinate legislation.It may also
be , and in many cases is , of a derivative nature , the power to legislate having been delegated by he
sovereign to the subordinate.
In England , India -All forms of legislative activity recognized by law other than power of parliament
are subordinate and subject to parliamentary control.
5 Kinds of subordinate legislation
1.Colonial :
The powers of self government entrusted to colonies and other dependencies of crown are
subject to the control of the Imperial legislature.Therefore the parliament at Westminster can repeal ,
alter , or supersede any colonial enactment and such enactment constitute the species of subordinate
legislation. Delagatus non potest delegare A colonial legislature not only a delegate of Imperial
parliament but in turn delegate legislative power to the other bodies dependent on it.
2.Executive /Delegated Legislation
The executive functions conduct administrative departments of the state combined with the
legislative powers delegated to it by the parliament /pertain to it by common law.
Example :
Statutesentrust Dept of executory Govtduty of supplementing statutory provision-by issue of
detailed regulation bearing on same matter.
So Perogative of crown @common law Make law for Govt of territory acquired by conquest or
cession &not yet possessed of representative local legislatures.
Many factors have been responsible for the growth of delegated legislation.The concept of
state has changed and instead of talking of a police state , we think in terms of a welfare state.This has
multiplied function of the government &passing of more laws to achieve ideal welfare state .Prior Bill
used to be a small one but due to complication of civilization, detailed legislation created. This rise in
number and size has resulted in problem .Since it was realized that all legislation cant be enacted even
if members of parliament are prepared to work day and night .Therefore parliament resorts to the
device of passing skeleton bills and leaving work of filling the details to the departments concerned.
Modern Legislation is becoming highly technical it is considered safe to approveof general
principles of legislation and leave details to the ministries concerned.(coz its too much to expect that
ordinary members will appreciate all implication of modern legislation , though expert can do ., others
would bungle.)
For drafting of Bill to be passed into law by parliament the time period is not adequate.If
so done in short time it would be defective. Therefore power is delegated to the concerned department
to issue orders-in-council which can be made at leisure and which can be expected to be logical and
intelligible.

It is convenient if some power is given to the concerned department to add to the details to
meet any contingency in the future as a civil servant/statesman cant foresee contingency that might
arise & moreover full knowledge of local conditions may not be available to governmet at the time of
passing the law .(therefore adjust law by means of orders- in- council to meet requirements of various
localities.)
Delegated legislation controlled in the following ways
A . Parliamentary control : Parliament has always general control which is direct .When a Bill is
before it , it can modify , amend or refuse altogether the powers which the bill proposes to confer on a
minister or some other subordinate authority.
B. Parliamentary supervision : Laws made under delegated legislation should be laid before the
legislature for approval and the legislature may amend or repeal those laws if necessary.
C. Judicial Control :The control of courts is indirect .Judcial control operates through the doctrine of
Ultra Vires .i.e . beyond the power given to the authority concerned . Courts cant annul subordinate
enactments , but they can declare them inapplicable in particular circumstances .The rule or order
frowned on by the courts become dead letter because in future no responsible authority will attempt to
apply it .If applied nobody will submit to it All delegated legislation is subject to test whether /not .they
falls with in the periphery of the power thus conferred .If they dont fall they are of no effect .The court
poses certain direct power over acts and procedures of public authorities .the most important of them is
writs. Other methods are injunctions and declarations.
D. Trust worthy : An internal control of delegated legislation can be ensured if the power is delegated
only to a trustworthy person /body of persons.
E.Publicity : Public opinion can e a good check on the arbitary exercise of delegated statutory powers
.Public opinion can be enlightened by antecedent publicity of the delegated laws.
F. Experts Opinion : In the matters of technical nature , opinions of experts should be taken .That will
minimize the danger of vague legislation and blanket delegation .
3.Judicial :
Judiciature possess certain legislative powers .The superior courts have the power of making rules
for the regulation of their own procedure.Thus judicial legislation differs from so called legislative
action of the courts(which creates new law by way of precedent)
4.Municipal :Municipal authorities are entrusted by the law with limited and subordinate powers of
establishing special law for the districts under their control .The enactment so authorized are termed as
by-laws & this distinguished as municipal
5.Autonomous: It is the process of making law by person for their own guidance with in the sphere
in which they have been authorized to make such law.
So far the legislation proceeds from state in its supreme/1 or many subordinate departments .
The Declaration of new principle amounts to legislation not because its the voice of the state but
because it is accepted by state as sufficient legal ground for giving effect to new principle in court of
justice.
The power of legislation important to be committed to any person .Therefore enacted law promulgated
by the state in its own person.
But exceptional cases law gives certain group of private individuals limited legislative authority
touching matters which concern themselves.
Example:
Railway company make By-laws to regulate undertaking
University make statutes Binding upon members.

Registered company Alter article of association by which constitution and management are
determined.
Legislation thus created by private persons and law so created may be distinguished as
Autonomic.

Legislation

Precedents

1.It has source in the law-making will of


the state

1.It has its source in the Ratio Decidendi


and Obiter Dicta of the judicial decision.

2. It is imposed on courts by the legislature

2. Precedents are created by the courts


themselves.

3.It is formal and express declaration of


new rules by the legislature .

3.They are the creation of law by


recognition and application of new rules by
the court in the administration of justice .

4. Legislation is expressed in a general and


comprehensive form .

4.Precedent is in a particular and limited


form.

5. It create statute law .It is easy to interpret 5.. It creates Judge-made law .precedent not
statute.
easier than statute.
6.Legislation comes before a case arises
requiring its application.

6.Precedent comes after the cause has


arisen.

7.Legislation is abstract

7.Precedent is definite.(primarily settles a


dispute B/W particular parties.)
8.It is retrospective only.

8.It is ordinarily prospective.

Legislation

Custom

1.Legislation grows out of theory .

1.Custom grows out of practice

2.The existence of Legislation


is essentially de jure.

2.The existence of custom is essentially de


facto.

3.It is the latest development of lawmaking tendency.

3.It is the oldest form of law

4.Legislation is the mark of advanced


society and a mature legal system .

4.Customary law is the mark of primitive


society and an undeveloped legal system

5.Legislation expresses relation B/W men


and state .

5.Customary law expresses a relationship


B/W man and man .

6. Legislation is complete , precise and


easily accessible.
7. Legislation is jus scriptum .

6. Customary law is not complete , precise


and easily accessible.
7.Customary law is jus non scriptum

8. Legislation is the result of deliberate


positive process .

8.Customary law is the outcome of


necessity , utility and imitation.

Advantages of legislation over precedent


1.Legislation is both constitutive and abrogative , but precedent is merely constitutive .Legislation is
not only a source of new law but also for its reform and also most effective in abolishing the existing
law.Abrogative power is necessary for legal reform and this virtue is not possessed by precedent
which can produce new law but cannot reverse that which is already law.
2. Legislation is based on the principle of division of labour and consequently enjoys the advantage
of efficiency.Both legislation and judicial functions are separated and are done better by different
organs like legislature attends to the work of legislation and judiciary attend to work of interpreting and
applying law..In precedent both the functions of legislation and interpretation are combined and that is
hardly desirable.
3.Legislation makes rules for cases that have not risen but precedent must wait until the actual
concrete incident comes before the courts for decision Precedent is dependent on actual course of
litigation but legislation is independent of it .
4. Legislation is superior in form to precedent Legislation is clear , easily accessible and
knowlable .The statutes are so drafted as to simplify the law , but usually important statutes require
elaborate editing with copious references to cases as soon as they are enacted
Eg:Local government Act ,1833
Though continental codes have facilitated the scientific arrangement of legal topics , but even they have
found to be unworkable without much comment and the guidance of successive decisions.With increase
in cases the existing law seems to be aburden.
Case-law is buried from the sight and knowledge in the huge and daily growing mass of the records of
litigation

Case law is gold in the mine , a few grains in the precious metal to the tons of useless metal , while
statute law is coin of the realm ready for immediate use .
5. legislation satisfies the requirement of natural justice that laws shall be known before they are
enforced Law is declared in the form of legislation and the same is later on enforced by the courts .It is
formally declared to the people and if they violate they are punished
In case of precedent it is created and declared in the very act of applying and enforcing it .Thus it
operates retrospectively and applies to the facts which are prior in date to law itself .
Modern statutes are numerous &complicated that it is doubtful whether promulgation secures wider
knowledge of new principles than any important decision .Untill they have been construed by actual
decisions their effect is doubtful.There is nothing in the nature of legislation to prevent it from having
retroactive effect .so as to alter the legal consequences of acts already done.Any considerable alteration
of principles must have some retroactive effect as long-term arrangements will have been entered into
on the assumption that law will remain unchanged.

Advantages of precedent over legislation


1.Dicey : The morality of the courts is higher than the morality of the politicians..
Politicians always swayed by popular passions and are liable to make bad laws.Whereas Judges decide
cases in a calm atmosphere and can afford to hold the scales between the contending parties &perform
function impartially and fearlessly .
2.According to Salmond :case law enjoys greater flexibility than statute law .The statute law suffers
from the defect of rigidity .Courts are bound by the letter of law and are not allowed to ignore the
same.In case of precedent , analogical extension is allowed. Though precedent cant abrogate law it has
its own immense importance as constitutive element in the making of law .In England :The courts of
Equity played an important part in mitigating the rigours of common law by means of precedents.
3. According to Amos law does not become more uncertain when it is based onn precedent than
when it is founded on enacted law.The uncertainity of English law is nothing when compared to
French law.The French lawyers knows and wade through codes , interpretation and commentaries as
English lawyers .The enactment of law isnt a cure for uncertainity in legal system .Neither legislation
nor precedent alone can fill the gaps but together can.
.

Rules Of Interpretation

1.Grammatical Interpretation
Salmond : Interpretating or construction is meant the process by which the courts seek to ascertain the
meaning of legislation through the medium of the authoritative forms in which it is expressed .
Acc . to him :Two Kinds of Interpretation
Grammatical Interpretation Only the verbal expression of law is taken into consideration and the
courts do not go beyond the litera legis .
Logical Interpretation The courts are allowed to depart from the letter of the law and try to find out
the true intention of legislature .
It is therefore the duty of courts to content themselves by accepting the grammatical interpretation
as the true intention of the legislature It should be taken for granted that legislature has meant what it
has said and said what it has meant .The judges are not at liberty to add or take away or modify the letter
of law simply because they feel that the true intention of legislature has not been correctly expressed in
law itself .It is the only interpretation allowable in all cases.
In penal statutes must always be strictly construed .If an Act creates an offence and also prescribes a
penalty for its violation , the court is not much concerned with what might possibly have been intended ,
but with what has actually been said and the language used in the Act must be strictly construed .If in a
penal statues , 2 possible and reasonable interpretation can be given , the court must lean toward that
construction which exempts the person from a penalty than which imposes it .
Sussex Peerage Case Observed If the words of the statute are in themselves precise and
unambiguous then no more can be necessary than to expound words in their natural and ordinary
sense .The word themselves alone do , in such cases , best declare the intention of the law giver .
Lord Brougham : The construction of an Act must be taken from the bare words of the Act .We
cannot fish out what possibly may have been the intention of the legislature .We cannot aid the
legislatures defective phrasing og the statue .We cannot add and mend and by construction make up
deficiencies which are left there.And therfor e, if any other meaning was intended than that which the
words purport plainly to import , then let another Act supply the meaning and supply the defect in the
previous Act .
Lord Wensleydale : In construing Statues , as in considering all other written instruments , the
grammatical and ordinary sense of the words is to be adhered to , unless that would lead to some
absurdity or some repugnance or in consistency with rest of the instrument in which case the
grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and
inconsistency , but no further .
Paulus : Where there is no ambiguity in the words , the question of intention ought noy to be
admitted.

Salmomd: 3 Logical Defects which affects Grammatical Interpretation


1. Ambiguity :The language of a statute may be such that instead of having one meaning , it may
be possible to put one / more meaning on the same word .Therefore it is the duty of the court to
go behind the letter of law and try to find out the true intention of the legislature.Particularly the
one which is more natural , obvious and consonant with ordinary use of language should be put
among 2 meanings.
2. Inconsistency The different part of the law may be inconsistent with one another and nullify
the meaning .Thus courts have to find the true intention of legislature and correct the letter of the
law.
3. Incomplete- There may be lacuna in the law itself and that may not allow the whole meaning to
be expressed in which case the remedy is by logical interpretation If the law is complete the
court have no business to interfere and assume legislative power.

Golden Rule : Though literal interpretation must be accepted it must be cautiously applied and
not be followed if the statute is apparently defective.The literal interpretation is a means to ascertain the
general purport of the statute / Ratio legis .In difficult cases court can go beyond the word of statute
and take help from other sources .This is called Golden Rule .Austin and Korkunov- approved this
rule .
Parke: It is very useful rule in the construction of a statute to adhere to the ordinary meaning of the
words used, and to the grammatical construction , unless that is at variance with the intention of the
legislature , to be collected from th eststute itself , or leads to any manifest absurdity or repugnance , in
which case the langus\age may be varied or modified so as to avoid such inconvenience , but no
further .
Additional Commissioner Of Income Tax Vs.Surat Art Silk Cloth Manufacturer Association
Supreme court India emphasized The role of beneficient construction of statutes .It was held that a
construction that gives meaning and effect to the provisions of a statute if its definitely to be preferred
.In course of Judgement SC observed If there is one rule of interpretation more well settled than any
other , it is that if the language of a statutory provision is ambiguous and capable of two construction ,
that construction must be adopted which will give meaning and effect to the other provisions of the
enactment , rather than that which will give none.
Gokulnath Vs.State Of Punjab(1967)
Article 308-Power of parliament to amend constitution
(conflicts)
Article 13 clause (2)- state shallnt make any law which takes away /abrides the right conferred by part
3 &any law made in contraventionof clause be void .
Decision :Supreme Court Golden Rule Article 13(a) prevails.
State of Punjab Vs .Quaiser Jehan Begum AIR 1963-Land Acquisition Act
Sec 18 of Act Aggreived person shall approach with in 6 mon to civil court after award made by
competent authority on land acquisition
Noclear meaning :Period of 6 mon form date of awad actual / constructive.
Decision Supreme court Literal / mechanical construction of word not appropriate &knowledge of
affected party either actual or constructive being essential requirement of fair play and natural justice.
The expression used must mean Dte when the award is either communicated or known to him
actually /constructively.

In U.S trend towards purpose oriented interpretation than plain meaning interpretation -In
Unites States Vs. American Trucking Association SC of America observed When the plain
meaning has led to absurd or futile result , this court has looked beyond the word to the purpose of
Act .Frequently , however , even when the plain meaning did not produce absurd result , but merely an
unreasonable one , plainly at variance with the policy of legislation as a whole , this court has followed
that purpose rather than the literal words .

The Mischief Rule :


Mischeif Rule takes it origin from Heydons case .When the true intention of the legislature cannot be
determined by the language of the statute in question , it is open to the court to consider the historical
background underlying the statute
Court- consider circumstances that led to introduction of Bill and when it became Law.
Judges allowed to probe into questions- policy in interpreting statutes bound to some uncertainity.
Judges- May look at the law Before Act and Mischief in Law which the statute was intended to remedy .
Act construed in such a manner as to suppress the mischief and advance the remedy .
In Heydons case :
For true and sure interpretation of statutes(in general , penal /beneficial , restricting/enlarging
the common law) Observe-4 things to be discussed and considered.
1ST What was the common law before the making of the Act.
2ND What was the mischief and defect for which the common law did not provide
3RD -What remedy the parliament hath resolved and appointed to cure the disease.
4TH The true reason of the remedy ,
and then the office of all judges is always to make such construction as shall suppress the mischief and
advance the remedy , and to suppress subtle invasion and evasions for continuance of the mischief
and to add force and life to cure and remedy , according to the true intent of the makers of Act , pro
bono publico.
Gorris Vs.Scott (1874)-Carriage Act A newly enacted statute provided that animals carried on board
should be kept in pens .
The defendant shipping company had failed to enclose the plaintiffs sheep in pens ,and sheep had been
washed overboard during a storm .If only the sheep had been penned as required this mishap would not
have happened .
English Court -Rejected plaintiffs suit for Breach of Statutory Duty Held that statute has been
enacted in order to prevent the infection from spreading from owners animal to other &therefore this
Act not to be used to provide remedy for totally different mischief.
Vignesh Kumar Vs Shanti Prasad(1980) 2 SCC 378 Supreme Court Observed-construction should
be adopted which would advance the object of the legislature and suppress the mischief sought to be
cured.
The rule didnt receive much favour in English court and lean toward the literal interpretation .

2.Logical Interpretation
Logical interpretation is that which departs from the letter of law and seeks elsewhere for some other
and more satisfactory evidence of the true intention of the legislature.
This put on statute when grammatical/literal interpretation is not possible
True intention of the legislature found by referring to other facts.
If ambiguous words involved then that interpretation preferred which prevents the law from
becoming absurd and dead letter .
When two or more alternative interpretation, that which fulfill the object of law to be preferred .

Gray :Logical Interpretation calls for the comparison of the statute with other statutes and with other
statutes and with the whole system of law and for the consideration of the term and circumstances in
which the statute was passed .
Allen : Nowhere it is more apparent than in the construction of enactments that words half revealand
half conceal the tought within.Unfortuantely , astatute must be of revelation and in nowise concealment
, if it is to avoid a darkening counsel.In the task of liberal or grammatical interpretation , jusdges are
constantly reminded to their unfeigned chagrin of the imperfection of the human language .The style of
statute has differed greatly from age to age.
In Logical Interpretation the courts has the duty
To take into consideration , the object of the Act and needs of society .
Consider circumstances under which the act was passed and the mischief which it was intended
to remedy
Only that interpretation should be put which suppress the mischief and help the cause of remedy
But courts are not allowed to refer to the debates on the bill , fate of amendments proposed and
dealt with by the legislature .
Kohler :Rules of law are not to be interpreted according to the thought and will of the law maker , but
they are to be interpreted sociologically ; they are to be interpreted as products of the whole people
whose organ the law maker has become.
Cardzo ; Formerly men looked upon law as the conscious will of the legislator .Today , they see in it
natural force .It is no longer in text or in systems derived from reason that we must look for the source of
law ; it is in social utility , in the necessity that certain consequences shall be attached to give hypotheses
.The legislator had a fragmentary consciousness of this law , he translated it by the rules which he
describes .When the question is one of fixing the meaning of those rules, where we ought to search ?
Manifestly at their source , that is to say , in the exigencies of social life .There resides the strongest
probability of discovering the sense of the law .In the same way , it is not of logical deduction , it is
rather social needs that we are to ask the solution.

3.Strict and Equitable Interpretation


When the litera legis suffers from ambiguity , it usually happens that one of the meanings is more
obvious and consonant with popular use of the language .If this meaning is adopted then it is called Stict
Interpretation
When the court rejects the natural and most known interpretation in favour of another which conforms
better to the intention of the legislature though it may not fit in with the ordinary use of language .When
that is done there is equitable Interpretation .It is of 2 kinds-Restrictive&extensive.
Restrictive and Extensive Interpretaion
Restrictive Interpretation
It is applied to penal and fiscal statutes .These laws impose restrains on the liberty of an individual or on
the enjoyment of property by him .In such cases courts are against a construction which imposes a
greater burden on the subject than is warranted by the literal meaning of the language employed in the
statute .

Extensive Interpretaion -Nisbet Vs.Rayne &burn (1910)


Mr.Nishbets who was cashier in a coalmine mine owners .It is a part of his duty to take from office to
colliery where wages of employees were paid .While doing so on a day he was robbed and murdered..
Mrs.Nishbet Claimed dameages udnder Workmen conpensation Act.
Sec 1 of the Act Provides that When a workman meets his death by an accient arising out of the
course of his employment , his widow may claim damages from the employers
Defendant contended that murder was not an accident within the meaning of the act and hence the
claim was groundless
Lord Justice Kennedy : Agreed with the view that the description of death by murderous violence as
an accident cannot honestly be said to accord with the common understanding of the word.
He observed that : I conceive it to be my duty rather to strech the meaning of the word from the
mjmarrower to the wider sense of which it is inherently and entymologically capable , that is any
unforeseen and untoward event producing personal harm , than to exclude from the operation of the
section a class of injury , which it is quite unreasonable to suppose that the legislature did not intend to
include within it.

4 .Historical Interpretation
The method of historical interpretation is employed while interpreting a statute when its language gives
no clue to the intention of the legislature.
What is done is that courts consider the circumstances attending the original enactment and give effect
to the intention which the legislature would presumably have expressed if its attention had been drawn
to the particular question.
In Heydons case :For true. continuance of the mischief
It is noteworthy that historical Interpretation cannot be adopted in every case Even while ascertaining
the supposed intention of the legislature the courts cannot travel out of the language used in the
statute.The result is that the proceedings in the legislature or the history of the introduction of a
particular clause in the statute in the legislature cannot be considered.
In Rhonda case
Lord Birkenhead observed : The words of the statute are to be construed so as to ascertain the mind
of the legislature from the natural and grammatical meaning of the words which it used and in so
construing them the existing state of the law , the mischiefs to be remedied and the defects to be
amended, may legitimately be looked at together with the general scheme of the Act .
Lord Wrenbury observed :The debate upon the bill , the fate of the amendments proposed and dealt
in committee of either House cannot be refered to , to assist in construing the language of the Act as
ultimately passed into law with Royal assent .

5. Sociological Interpretation
The Jurist of the sociological school are prepared to give a lot of freedom to the judges while
interpreting a statute .However this method of sociological interpretation has not been recognized so far
by the courts.
Kohler- View For the determination of the correct interpretation , courts can properly refer to the
history of social movements and enquire into social needs , objects and purposeswhich wee agitating the
society at the time of the legislation and which the statute had in view.
Quote : The opinion that the will of the law maker is controlling in construing legislation is
only an instance of the unhistorical treatment of the facts of the worlds history and should disappear
entirely from jurisprudence .Hence the principles rules of law are not to be interpreted according to the

tought and will of the law-maker , but they are to be interpreted sociologically , they are to be
interpreted as products of the white people whose organ the law-maker have become.
Cardozo : Formerly men looked upon law as the conscious will of the legislator .Today they see in it
natural forceIt is no longer in texts or in systems derived from reason that we must look for the source
of law ; it is in social utility , in the necessity by that certain consequences shall be attached to given
hypothesis .The legislator had a fragmentary consciousness of this law :he translates it by the rules
which he prescribes .When question is one of fixing the meaning of those rules , where ought we to
search ? manifestly at their source ;that is to say , in the exigencies of social life .There resides the
strongest probability of discovering the sense of the law .In the same way when the question is one of
supplying the gaps in the law , it is not of logical deductions , it is rather of social needs that we are to
ask the solution.
Equity Of Statute
Definition :
Coke : Equity is a construction made by the judges that cases out of the letter of a statute yet being
within the same mischief or cause of making the same shall bewithin the same remedy that the statute
provideth ; and the reason thereof is for that law-makers could not possibly set down all cases in express
terms.
The principle of Equity Of Statute is not favoured by the courts .They are not prepared to fill the
lacunae left by the legislature.
Riggs Vs.Palmer
Court held: Murderer could not be permitted to take under the will of his victim and transmit rights to
his own heirs, although the statutes regulating the devolution of property by will , if literally construed ,
did not stand in the way of the murderer benefiting by the testamentary disposition of his victim .
Quote : If the law makers could as this case , be consulted , would they say that they intended by the
genral language that the property of a testator or of an ancestor should pass to one who had taken his life
for the express purpose of getting his property .

Rule of Casus omissus


This rule provides that omissions in a statute cannot , as a general rule be supplied by construction
Parkinson Vs.Plumpton Catering Wages Act 1943 Prescribed minimum wages payable to
workers in catering establishment .
The schedule to the Act provided for the minimum wages when the employer supplied the worker with
full board and lodging and when the employer supplied the worker with neither full board nor lodging
.She was provided with full board but not lodging .She claimed she was paid less than the minimum
wage payable under the Act .
Lord Goddard dismissing the claim observed I think there is a casus omissus , and that the
draftsman has forgotten to provide for the case where , as here , board is provided , but not lodging
within the meaning of the schedule .I suppose it was thought that full board would only be supplied
when lodgings were provided and as I have said , lodging seems to be put out of account here .These
people were there full time , and so , therefore , you have got this unfortunate hiatus .one always tries to
construe words so as to give them a sensible construction and prevent their failure , but I do not know of
any canon of construction which enables me to construe where the employer siupplies the worker with
neither boarding nor lodging to include a case where the employer supplies full board but no lodging .I
cant rewrite the legislation .I must enter judgement for the defendant .(1954)1 A11 ER 201.

Rules Of Interpretaion Of Statutes


1.Ita Scriptum est : The statute must be given ordinary meaning judges not to modify /add
Lord Simon : The Golden Rule is that words of the statute must be prima facie be given their ordinary
meaning .We must not shrink from an interpretatiom which will reverse the previous law , for the
purpose of alarge part of our statute is to make lawful that which would not be lawful without the statute
, or conversely , to prohibit results which would otherwise follow.Judges are not called upon to apply
their opinion of sound policy so as to modify the plain meaning of which is not entirely plain , there are
adequate reasons for doubting whether the legislature could have been intending so wide an
interpretation , the narrower of which would fail to achieve the manifest purpose of the legislation,we
should avoid a construction which would reduce the legislation to futility and should rather accept the
bolder construction based on the view that parliament would legislate only for the purpose of bringing
about an effective result.

2. The statute must be read as whole and construction should be put on all parts of the statute .
Lord Halsbury : You must look at the instrument in asmuch as there may be inaccuracy and
inconsistency ;You must , if you can , ascertain what is the meaning of the instrument taken as a whole
in order to give effect , ifit be possible to do so , to the intension of the framer of it .
Lord Davey : Every clause of the statute should be construed with reference to the context and other
clauses of the Act , so as , as far as possible , to make a consistent enactment of the whole statute or
series of statutes relating to the subject matter .

3. Statute should be construed in a manner to carryout the intention of the legislature.


It is not the duty of the court to fill up the gaps in a statute .If a gap is discovered , it is for the legislature
to fill up the same.
Lord Blackburn : I quite agree that in construing an Act of Parliamentv , we are to see what is the
intention in which the legislature has been expressed by the words , but then the words again are to be
understood by looking at the subject matter they are speaking of and the object of the legislature and the
words used with reference to that may convey an intention quite different from what the self same set
of words used in reference to another set of circumstances and another object would or might have
produced.
Lord Radcliffe: There are so many rules of construction that courts of law have resorted to in their
interpretation of statutes , but paramount rules remain that every statute is to be exponded according to
its manifest and expressed intention .
Lord Simon : The duty of court is to interpret the words the legislature has used those words may be
ambiguous .But even they are , the powers and duty of the court to travel outside them on the voyage of
strictly limited ,see for instance ,Assam Railways and Trading Co.v.I.R.C. and particularly the
observation of Lord Wright .

4.Interpretation of statute should be in accordance with the policy and object of the statute in
question.
Lord Halsbury ; It is impossible to contend that the mere fact of a general word being used in a
statute precludes all enquiry into the object of the statute or the mischief which it was intended to
remedy .
Lord Goddard : A certain amount of commonsense must be applied in construing a statute .The object
of the Act has to be considered.

Channell : It is always necessary in construing a statute and in dealing with words you find in it to
consider the object with which the statute was passed;it enables one to understand the meaning of the
words introduced into the enactment.
Lord Cave: I base my decision on the whole scope and purpose of the statute and upon the language of
the sections to which I have specifically referred .

5.The words used in a statute should be construed in the popular sense .If those used in connection
with some particular trade , they will be presumed to be used in a sense appropriate to or usual in such
business or trade .
Lord Hewart : It ought to be the rule and we are glad to think that it is the rule that words are used in
an act of parliament correctly and exactly and not loosely and inexactly .Upon those who assert that rule
has been broken , the burden of establishing their proposition lies heavily , and they can discharge it
only by pointing to something in the context which goes to show that the loose and inexact meaning
must be preferred.

6. The words in the statute should be taken to have been used in the sense that bore at the time the
statute was passed .
Lord Esher : The first point to be borne in mind is that the Act must be construed as if one were
interpreting it the day after it was passed.

7.There is a presumption in the construction of statutes that the same words are used in the same
meaning in the same statutes and a change of language is an indication of change of intention on the
part of the legislature.
Lord Shaw : In the absence of any context indicating a contrary intention , it may be presumed that
the legislature intended to attach the same meaning to the same words when used in a subsequent statute
in a similar connection.
Lord Macmillan: When an amending Act alters the language of the principal statute , the alteration
must be taken to have been made deliberately .In tax legislation , it is far from uncommon to find
amendments introduced at the instance of the Revenue Department to obviate judicial decisions which
the department considers to be attended with undesirable results.

8.If the language of the statute clear , it must be enforced although the result may seem harsh or
unfair or inconvenient .It is only when there are alternative methods of construction that notins of
injustice and inconvenience may be allowed scope .
Tindal .C.J: Where the language of an Act is clear and explicit , we must give effect to it whatever
may be the consequences , for in that case the words of the statute speak the intention of the legislature.
Lord Birkenhead : The consequences of this view will no doubt be extremely inconvenient to many
persons .But this is not amatter proper to influence the House unless in a doubtful case affording
foothold for balanced speculation as to the probable intention of the legislature.
9.Statutes should be interpreted in such a way to avoid absurdity
Jervis .C.J: If the precise words are used are plain and unambiguous , we are bound to construe them
in ordinary sense , even though it does lead to absurdity or manifest injustice.Words may be modified or
varied where their import is doubtful or obscure , but we assume the functions of legislators when we
depart from ordinary meaning of the precise words used , merely because we see , or fancy we see an
absurdity or manifest injustice fron an adherence to their literal meaning .

10. The Doctrines :expression unius exclusion alterius & ejusdem generic apply in Interpretation
of statutes.
expression unius exclusion alterius The expression of one person or thing implies the exclusion of
other persons or things of the same class which are not mentioned .
ejusdem generic -of the same kind .
Collick ; It is the general rule of construction that where a broad class is spoken of and the general
words follow, the class first mentioned is to be taken as the most comprehensive and the general words
treated as referring to matters ejusdem generic with such class.
Lord Halsbury : Thereare two rules of construction now firmly established as part of our law .One is
that words , however general , may be limited in respect to the subject matter in relation to which they
are used .The other is that the general words may be restricted to the same generic as the specific words
that precede them .
The rule of ejusdem generic Bryens law Dictionary : It is a rule of legal construction that general
words following enumeration of particulars are to have their generality limited by reference to the
preceding particular enumeration and to be construed as including only all other articles of the like
nature and quality.

11. It is not the business of a court to fill up the gaps in a statute .The tendency is not approved of. It
is the function of a legislature
Lord Wright : It may be that there is a casus omissus, but if so , that omission can only be supplied by
a statutory action .The court cannot put into Act words which are not expressed and which cannot
reasonably be implied on any recognized principles of construction .That would be the work of
legislation , not of construction , and outside the province of the court .
12. The general rule of Interpretation is that no law is to have retrospective effect unless a specific
intention to that effect is given in the statute itself .Ordinarily all laws are to be interpreted to have
prospective effect only .
Scrutton .L.J.: Prima Facie an Act deals with the future and not with the past events .If this wre not
so , the Act might annul rights already acquired , while the presumption is against the intention .
Wright .J: Perhaps no rule of construction is more firmly established than this , that a retrospective
operation is not to be given ta statute so as to impair an existing right or obligation , otherwise than as
regards a matter of procedure , unless that effect enactment .If the enactment is expressed in language
that is fairly capable of either interpretation , it ought to be construed as prospective only .
Lindley .L.J:It is a fundamental rule of English law that no statute shall be construed so as to have
retrospective operation , unless its language is such as plainly to require such a construction and the
same rule involves another and subordinate rule to the effect that a statute is not to be construed so as to
have a greater retrospective effect than its language renders necessary .

13. Nobody has vested right in procedure .There is no presumption that a change in procedure is
prima facie intended to be prospective only and not retrospective .
Blackburn ; Alterations in the form of procedure are always retrospective unless there is some good
reason or other why they should not be.

14.While Interpreting of statute certain presumption have to be taken into consideration by the
courts .It is always presumed that the legislature does not make mistakes and if it actually makes ,
it it not for a court to correct the same.

Lord Halsbury: But I do not think it competent for any court to proceed upon the assumption that the
legislature has made a mistake .Whatever the real factmay be , I think a court of law is bound to proceed
on the assumption that the legislature isa ideal person that does not make mistakes.
Lord Loreburn ; It is quite true that in construing private Acts , the rule is to interpret them strictly
against the promoters and liberally in favour of the public , but a court is not at liberty to make laws
however strongly it may feel that parliament has overlooked some necessary provision or even has been
overreached by the promoters of a private bill.
15.Presumption The legislature knows the practice
Hamilton.L.J: I think it is a sound inference to be drawn as a matter of construction that the legislature
, aware as I take it to have been , of the practiceof these inquiries and its incidents , intended that the
local inquiry and that the uasual incidents should attach in default of any special enactment , including
the incident that the board would treat the report as confidential .
16.Presumption The legislature does not intend what is inconvenient or unreasonable.
Lindley : Unless parliament has conferred on the court that power in language which is
unmistakable , the court is not to assume that parliament intended to do that which might seriously affect
foreigners who are resident here and give offence to foreign governments.
Brett.M.R: With regard to inconvenience I think it is a most dangerous doctrine .I agree that if the
inconvenience in reading an enactment in its ordinary sense , whereas if you read it in a manner of
which it is capable, though not in its ordinary sense , there would not be any inconvenience at all , there
would be reason why you should not read it according to its ordinary grammatical meaning .If an
enactment is such that by reading it in its ordinary sense , you produce a palpable injustice , whereas by
reading it in a sense it can bear , though not inexactly its ordinary sense , it will produce no injustice ,
then I admit one must assume that the legislature intended that it should be read as to produce no
injustice.
17.Presumption-Legislation does not intend any alteration in the existing law except what it
expressly declares.
Lord Wright : The general rule in exposition of all Acts of Parliament is somewhat this , that in all
doubtful matters , and where the expression is in general terms , they are to receive such a
consideration as may be agreeable to the rules of common law , in cases of that nature ; for statutes are
not presumed to make any alteration in the common law , further or otherwise than the Act does
expressly declare.
Devlin ,J: A statute is not to be taken as affecting a fundamental alteration in the general law unless it
uses words which point unmistakably to that conclusion .
18.Presumption :Public or private vested rights are not taken away by the legislature without
compensation.
Bowen,L.J: In the consideration of statutes , you must not construe the words so as to take away rights
which already existed before the statute was passed , unless you have plain words which indicate that
such was not the intention of the legislature.
Brett.M.R: It ia a proper rule of construction not to construe an Act of Parliament as interfering with
or injuring persons rights without compensation unless one is obliged to so construe it .
19. Presumption -Statutes does not violate the principles of International Law.
Craies : The Judges may not pronounce an Act Ultra Vires as contravening international law , but may
recoil in case of ambiguity , from a consideration which would involve a breach of the ascertained and
accepted rules of International Law .

20. It is a rule of Interpretation that in construing the scope of a legal fiction it will be proper and even
necessary to assume all those facts on which the fiction can operate. A consideration which would
defeat the object of the legislation must if that is possible be avoided.
21. The Doctrine of Pith and Substance is involved for the purpose of determining the true nature
and character of the legislation in question .The test of Pith and substance applied when dispute
arises to the legislative competence of legislature and it is resolved by a reference to the entries to
which the impugned legislation is relatable.When conflict B/W 2 entries in legislative list and
legislation by reference to one entry would be competent but not by reference to the other .(AIR 1961
SC 232 )
22. Interpreting a Taxing Statutes : Interpret taxing statutes in the light of what clearly expressed
and not by presumption or assumption and no equitable consideration .The court must look squarly
at the words of the statutes and interpret .Icant either imply which isnt unexpressed or import
provisions in the statutes so as to supply the assumed deficiency.(AIR 1961 SC 1047).
23.The tendency of court toward technicality is to be deprecated .It is the substance that counts and
must take precedence over mere form .Some rules are vital and go to the root of the matter .They cannot
be broken .Others are only directory and a breach of them can be overlooked provided there is a
substantial compliance with the rules read as a whole and provided no prejudice ensues.When the
legislature does not itself which is which , judges must determine the matter and exercising a nice
discrimination sort out one class from the other along broadbased common sense line.(AIR 1956
SC 140).
24.In determining the constitutionality of a statute , the court is not concerned with the motives of
the legislature , and whatever justification people may feel in their criticisms of the political wisdom
of a particular legislative or executive action , the supreme court cannot be called upon to embark
upon an enquiry into public policy or investigate into question of political wisdom or even to
pronounce upon motives of the legislature in enacting a law which it is otherwise competent to make.
(AIR 1959 SC 860).
25.The legal pursuit of remedy , suit , appeal and second appeal are really but steps in a series of
proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.The
right of appeal is not matter of procedure but substantiative right.The Institution of the suit carries
with it the implication that all rights of appeal then in force are preserved to the parties thereto till
the rest of the career of the suit .The right of appeal is vested right and such a right to enter the
superior court accrues to the litigant and exists as on and from the date the lis commences and
although it may be actually exercised when the adverse judgement is pronounced , such right is to
be governed by the law prevailing at the date of the institution of the suit or proceedings and not
by the law that prevails at the date of its decision or date of filling of the appeal.This vested right
of appeal can be taken away only by a subsequent enactment if it so provides expressly or by
necessary intendment and not otherwise.(AIR 1957 SC 540)
26.In case of penal statutes , no proceedings under it are generally maintainable in respects of acts
done before the commencement of the statute , unless the statute includes such acts by express
provision or necessary intendment.The act which was not an offence at the time it was under the law
then prevailing , cannot become so by reason of the operation of some statute which itself came into
existence at a subsequent date. All penal statutes have to be construed strictly in favour of the
accused.
27.In Exparte Campell , James L.J observed : Where once certain words in an Act of parliament
have received a judicial construction in one of the superior courts , and the legislature has repeated them

without alteration in asubsequent statute , I conceive that the legislature must be taken to have used them
according to the meaning which a court of competent jurisdiction has givan to them .
Lord Denning view He does not believe that whenever parliament re-enacts a statute , it thereby
gives statutory authority to every erroneous interpretation which has been put upon it .
In Royal court Derby Porcelain Ltd Vs.Raymond Russell - Lord Denning-Observed The true view
is that the court will be slow to overrule a previous decision on the interpretation of a statute when it has
long been acted on , and it will be more than usually slow to do so when parliament has , since the
decision , re-enacted the statute in the same terms.[(1949) 2KB 417 , 429]