UNIT 3 - External Aids to the Construction.pptx

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1. External aid to construction

2. Difference between Interpretation and construction Interpretation Construction 1 It is the process adopted by the court to determine the true meaning of the legislative provision. It is the process by which court assign the meaning to the ambiguous provision which is beyond the letter of law for the purpose to resolve the inconsistency. 2 By interpretation one can find out the true sense of any form of words in statue.  By construction one can find out the way to apply the meaning to the factual circumstances before court. 3 Interpretation enables the linguistic meaning of the legal text. Construction is more concerned in enabling conclusion to the situation. Tabular difference between interpretation and construction

3. External aids to interpretation External aids are the aids which are not available inside the statute but outside the statute, the court may seek help to the external aids in case of repugnancy or inconsistency in the statutory provision 

4. Parliamentary History Subsequent Social, Political and Economic Developments and Scientific Inventions Dictionaries Text Books Statutes in Pari Materia Earlier Statutes Subsequent Legislation Codifying Statutes Consolidating Statutes Contemporanea Expositio Foreign Decisions/ Judgements

5. Parliamentary History In the process of making law various stages are involved. Before introducing bill, Govt. appoints commissions/ Committee. Submission of a report. In the light of contents of report, law is prepared. Bill – Statement of object and reasons for which the proposed law is required to be legislated. Lok Sabha/Rajya Sabha First reading- introduction to the house Second reading - consideration Third reading – brief general discussion

6. Debates on a bill in the process of its passing Statements of objects and reasons accompanying a Legislative Bill Reports of Commissions, Inquiry Committee, Joint Parliamentary Committee/ Study group

7. Rulings Express Newspapers (Put.) Ltd. v. Union of India, The Supreme Court substantially modified the principle that speeches of Minister of Members of Parliament cannot be called in aid to resolve the ambiguity. BHAGWATI, J., observed that that there is a consensus of opinion that the circumstances under which a particular word came to be deleted from the original Bill as introduced in the Parliament and the fact of such deletion when the Act to be passed in the final shape are not aids to the construction of the terms of the statute It is only when the terms of the statute are ambiguous or vague that resort may be had to them for the purpose of arriving at the true intention of the Legislature.

8. K.S. Paripoornan v. State of Kerala I t was held that speeches made by Members of Parliament in course of debate on a Bill cannot be admitted as aid to construction. But statement made by a Minister in the House who had moved the Bill in Parliament can be referred to find out the object of the proposed law and to ascertain the mischief sought to be remedied by legislation. However, such statement cannot be relied upon for construing a statutory provision. P.V. Narsimha Rao v. State (CBI/SPE), The Apex Court held that the statement made by the Minister in the House who had moved the Bill in Parliament can be referred to ascertain the mischief sought to be remedied by the legislation but it cannot be relied on for interpreting provisions of the enactment.

9. Ashoka Kumar Thakur v. Union of India, it was held that it is a settled position that there can be only limited use of parliamentary debates. The courts should not normally critically analyse the proceedings of Parliament. Special Reference No. 1 of 2002, In re (Gujarat Assembly Election matter), the Supreme Court held by majority that one of the known methods to discern the intention behind enacting a provision of the Constitution and also to interpret the same is to look into the historical legislative developments, Constituent Assembly Debates or any enactment preceding the enactment of the constitutional provision. T.M.A. Pai Foundation v. State of Karnataka,’ it was held the Constituent Assembly Debates can legitimately be taken into consideration for construction of provisions of the Constitution.

10. Statement of objects and reasons The statement of object and reasons are attached to the bill which describe the objects, purpose and the reason for the bill. It also gives understanding of the background, the antecedent state of affairs and the object the law seeks to achieve. The parliament before passing a bill must take into consideration that what object a bill serve to achieve. However, it is not considered as conclusive aid to interpretation because doesn't impart the true meaning to the statutory provision.

11. K.S. Paripoornan v. State of Kerala it was held that where a provision was inserted after introduction of the Bill and was in consideration before Parliament, the statement of Objects and Reasons of the Bill could not obviously throw any light on the circumstances in which the provision came to be inserted and enacted. Babua Ram v. State of U.P., it was held that the statement of Objects and Reasons can be referred to ascertain mischief sought to be remedied by the statue. In this case, statement of Objects and Reasons and Financial Memorandum were looked into for ascertaining what induced the introduction of the Bill but not as an aid to interpretation of the provision.

12. State of West Bengal v. Subodh Gopal Bose, the reasonableness of restrictions imposed by the Act on fundamental right guaranteed under Article 19 (1) (f) of the Constitution was in question. The Statement of Objects and Reasons was referred to for judging the same. JUSTICE S.R. DAS observed that it is well settled that the Statement of Objects and Reasons is not admissible as an aid to the construction of a statute. He further added "I am not therefore referring to it for the purpose of construing any part of the Act or of ascertaining the meaning of any word used in the Act but I am referring it only for limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsor of the Bill to introduce the same and the extent and urgency of evil which he sought to remedy."

13. In C.I.T., M.P. v. Sodra Devi, Section 16 (3) was introduced in Indian Income-tax Act, 1922 by way of Amending Act of 1937. In this section, the words "any individual" and "such individual" were used which were construed in this case. The question was whether these words are restricted to male assessee only or a female assessee is also covered within the ambit of these terms. To answer this question, Supreme Court referred to the Statement of Objects and Reasons appended to the Bill of Amending Act. On perusal of the Statement of Objects and Reasons, it was revealed that there existed widespread practice that the husbands used to enter into nominal partnership with their wives and fathers used to admit their minor children to the benefit of the partnerships. In this manner, the total income for taxation purposes used to be substantially reduced. The Legislature intended to curb this practice and to remedy this evil by way of introducing Section 16 (3) to the Act which provided for inclusion of the income derived by the wife or a minor child, in the computation of total income of the male assessee . In the light of this, BHAGWATI, J., observed that these words are restricted in their meaning to "males" only.

14. Constituent Debates/Speech It shall compromises all such debate which had taken place in the parliament at the time of formation of Constitution of India. In case of inconsistency or repugnancy in the Constitution the court can clearly refer to such debates. Indra Sawhney v. Union of India  [12], the interpretation of the expression “backward class of citizen” used in Article 16(4) was in question before the court. The SC under this case referred to the speech given by B.R. Ambedkar to understand the context, background and object behind its use of the given expression.

15. Legislative Debates/Speech It is referred as to debates or speeches which are made in the course of passing a bill in the parliament by the parliamentarians to put forth their view. It is not considered as a conclusive aid to interpretation and is therefore, not admissible because many times speeches are influenced by the political pressure or maybe incorrect to rely upon.

16. Committee Reports Before the framing of the Bill, usually the matter is referred to a committee to consider it in detail and give its report thereon. These reports of the commissions and committee have been referred to as evidence of historical facts or of surrounding circumstances and used for interpreting the Act. When there is an ambiguity in the meaning of a provision and the act was passed on the recommendation of a committee report, aid can be taken from that report to interpret the provision. Example:  the criminal amendment act was based on the recommendation by J.S. Verma Committee Report such report can be referred in case of any ambiguity in amendment

17. Dictionaries When a word used in the statute is not defined therein or if defined but the meaning is unclear only in such situation, the court may refer to the dictionary meaning of the statute to find out meaning of the word in ordinary sense. The meaning of such words shall be interpreted so to make sure that it is speaking about the particular statute because words bears different meaning in different context. Motipur zamindary company private limited v. State of Bihar  [10], the question was whether sales tax can be levied on  Sugarcane . The applicant argued that it is green vegetable and should be exempted from tax. The dictionary meaning of vegetable said anything which derived or obtained from the plants. The SC rejected dictionary meaning and held that in common parlance vegetable is something which is grown in kitchen garden and used during lunch and dinner and held that sugarcane is not vegetable.

18. State of Orissa v. Titagarh Paper Mills Co. Ltd. AIR 1985 SC 1293: 1985 Tax LR 2948: 1985 Supp SCC 280 Where an expression in any Act has been defined in the Act itself the definition given in the statute will govern. Dictionary meaning cannot be looked at where the word has been statutory defined or judicially interpreted. The Supreme Court has observed that where there is no such definition or interpretation, the coun may take the aid of dictionaries to ascertain the meaning of word in common parlance bearing in mind that a word used in different senses according to the context and a dictionary gives all the meanings of a word. Therefore, the court has to select the particular meaning which is relevant to the context in which it has to interpret that word.

19. K. Prabhakaran v. P. Jayarajan , AIR 2005 SC 688: 2005 AIR SCW 393: (2005) 1 SCC 754 The Supreme Court observed that when a word is not defined in the Act itself, it is permissible to refer to dictionaries to find out the general sense in which that word is understood in common parlance. However, in selecting one out of the various meanings of a word, regard must always be had to the context as it is a fundamental rule that the meanings of words and expressions used in an Act must take their colour from the context in which they appear. Therefore, when the context makes the meaning of a word quite clear, it becomes unnecessary to search for and select a particular meaning out of the diverse meanings a word is capable of, according to lexicographers.

20. I.C.I.C.I. Bank v. Municipal Corporation of Greater Bombay, (2005) 6 SCC 404: 2005 AIR SCW 4031: AIR 2005 SC 3315 Section 328A of Bombay Municipalities Corporation Act, 1888 was in question in which the word 'advertisement' has been used This word was interpreted by Supreme Court after consulting several dictionaries, Black's Law Dictionary, New Encyclopedia Britannica, it was held that the context in which the advertisement has been used in section 328A of the Act and in commercial and ordinary parlance, it must have direct or indirect connection with business, trade or commerce carried out by the advertiser. It must have some commercial exposition. The advertisement for the purpose of direction or soliciting the customers to the product or service prominently shown in the advertisement. Textbooks do not make laws, they indicate more or less those principles and propositions which have been universally accepted. Hence courts often refer to standard textbooks and treaties for arriving at the true meaning of an enactment. Courts are not bound by any textbook however eminent the author. It is in the discretion of courts to accept or reject the views given in the textbook referred.

21. Text Books The court while construing an enactment, may refer to the standard textbooks to clear the meaning. Although, the courts are not bound to accept such view. The court time and again referred to mulla , kautiliya , manu , arthshastra . Example: in  Kesavananda Bharthi case , judges quoted large number of books.

22. Subsequent social, political, and economic developments and scientific inventions Change in socio political scenario of country New scientific inventions Lord Steyn "Bearing in mind that statutes are usually intended to operate for many years, it would be most inconvenient if courts never rely on current meaning of the statutes". LORD BRIDGE observed, "When a change in social conditions produces a novel situation, which was not in contemplation at the time when a statute is first enacted, there can be no a priori assumption that the enactment does not apply to the new circumstances, and there is no reason why it should not apply."

23. Kashmir Singh v. Union of India, it was held that the courts while construing an ongoing statute must take into consideration the changes in the societal condition. The courts should also take into consideration development in science and technology. Leelabai Gajunun Pansare v. Oriental Insurance Co. Ltd. it was held that while considering whether public sector undertakings (PSUs) took within its purview government companies also, material available on government website regarding functioning of PSUs was relied upon. Supreme Court has also emphasized that the Indian Penal Code should be construed, as far as its language permits, with reference to modern needs and not with reference to notions of criminal jurisdiction prevailing at the time when the Code was enacted.

24. Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik , the question related to admissibility of modern technology providing for possibility of proof of fact which was not available at the time when the statute was enacted. The Apex Court interpreted S. 112 of Evidence Act, 1872 in light of fact that DNA tests can provide conclusive proof of paternity. It was held that the interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. When there is a conflict between a "conclusive proof" envisaged under law based on a presumption and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.

25. Pari means “Same” Materia means “Subject matter” Statutes dealing with same subject matter State of Madras V. A. Vaidyanantha Iyer Section 4 of Prevention of Corruption Act, 1947 was in question which provides that on proof that the accused has accepted any gratification other than legal remuneration, it shall be presumed unless contrary is established by the accused that the gratification was accepted as a bribe. This Section was held to be in pari materia with the subject matter dealt with by Indian Evidence Act, 1872. As such, for construing the words "it shall be presumed" occurring in Section 4 of Prevention of Corruption Act, 1947, the definition of the expression "shall presume" provided in Evidence Act was utilized. Statutes in Pari Materia

26. State of Assam V. Deva Prasad Barua Section 19 of the Assam Agricultural Income Tax Act, 1939 was held to be in pari materia with Section 22 of the Indian Income Tax Act, 1922. As such the judicial decisions construing Section 22 of the Income Tax Act were utilized for construction of Section 19 of the Assam Agricultural Income Tax. Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector and E.T.I.O., (2007) 5 SCC 447: 2007 AIR SCW 3752: AIR 2007 SC 1984 The Supreme Court held that where the words and expressions in a statute are plainly taken from an earlier statute in pari materia which have received judicial interpretation it must be presumed that Parliament was aware thereof and intended it to be followed in latter enactment.

27. Help from earlier statutes Kathama Natcharior v. Donasinga Tever , (1875) 2 IA 169 PC It was held that where the words used in a statute have been attributed to them and subsequently in a later statute same words in a similar context have been used then it can be safely presumed that the Parliament, while using the same words in a similar context in the later statute, intends that those words must receive same interpretation in the later statute, as was assigned to them while constructing earlier statutes. State of Madhya Pradesh v. G.S. Dall and Flour Mills, AIR 1991 SC 772: JT 1990 (4) SC 430: 1992 (1) SCC (Supp) 150 It was held that at the use of same language in a later statute as was used in an earlier one in pari materia is suggestive of the intention of the Legislature that the language statutes in pari materia is suggestive that change of interpretation is intended. so used in later statutes in pari materia is suggestive that change of interpretation is intended.

28. Help from subsequent statutes Anand Bros (P) Ltd. v. Union of India, (2014) 9 SCC 212In this recent case, the Supreme Court held that it is one of well-known canons of interpretation of statutes that when an earlier enactment is truly ambiguous in that it is open to diverse meanings, the later enactment may in certain circumstances serve as the parliamentary exposition of the former. Thus, the Supreme Court referred to the provisions of the Arbitration and Conciliation Act, 1996 which repealed the Arbitration Act, 1940 to find out the difference in the scope of challenge to the Award of the Arbitrator under the earlier Act and the later Act.

29. Ammini v. State of Kerala, AIR 1998 SC 260: 1997 AIR SCW 4231: 1998 Cr LJ 481 The pre-amended section 293(4) of the Cr. P.C. was construed by the Supreme Court with the help of subsequent amending Act. Prior to amendment, the expression "Director" used in this section. After its amendment, Deputy Director and Assistant Director were expressly included with the terms Director. The Supreme Court after referring to this change held that "Joint Director" who was higher in rank to Deputy Director and Assistant Director must be deemed to be included in Director, otherwise he would also have been expressly included by the amendment and also that this construction shall be applicable to the word 'Director' before the section was amended.

30. Codifying statute A statute that sets out the whole of the existing law i.e. statute law and case law in a particular subject. The draftsman attempting to comprise in which code both the pre-existing statutory provisions and also, rules relating to the matters . OBJECTIVES OF CODIFYING OF LAW: To codify the existing law To systemize the case law To avoid conflict of decisions.

31. Consolidating Statutes A consolidating statutes is a statute which collects those statutory provisions which are related to a particular topic. It embodies them in a single enactment by making minor amendments and improvements. A statute that repeals and re-enacts existing statutes relating to a particular subject . Its purpose is to state their combined effect and so simplify the presentation of the law. It does not aim to alter the law unless it is stated in its long title to be a consolidation with amendments.

32. Difference between Codifying law and Consolidating Statutes Unlike the case of codification,  consolidation does not involve adopting a new legal act . Consolidated text is meant purely as a documentation tool and has no legal effect. Consolidation is thus an unofficial simplification of the legislation in the interests of clarity and may then be used as a basis for codification.

33. Foreign laws and decisions Judges may refer to foreign laws and decision if the jurisprudence of both the countries is same, similarity in political system and ideology, when there is no domestic law on point and if the Indian court believe that decision passed by the foreign court is not arbitrary. However, the foreign courts or decision have only persuasive value as the courts in India are not bound by the foreign courts.

34. Liverpool and London S.P. and I. Assn. Ltd. v. MV Sea Success it was held that the Supreme Court is not bound by foreign (American) court decisions and those decisions have only persuasive value. But the court can borrow the principles laid down in a foreign decision, if the same are in consonance with Indian law keeping in view the changing global scenario. In Union of India v. Naveen Jindal,2 it was held that although interpretation of Constitution of India should be primarily based on materials available in India, relevant rules of other countries can be looked into for guidance. In G. Sundarrajan v. Union of India, the Supreme Court interpreted the Civil Liability for Nuclear Damage Act, 2010 by considering foreign laws such as US Price-Anderson Act, 1957, German Atomic Energy Act (1959), Swiss Federal Law on the Exploitation of Nuclear Energy for Peaceful Purposes and Protection from Radiation (1959) and Japanese Law on the Compensation of Nuclear Damage (1961) and the judicial decisions made on those laws.

35. Contemporanea Expositio “Contemporaneous” denotes “of the same time or period” “Exposition” denotes “explanation” The meaning attributed to the words of a statute at the time of passing of that statute shall be retained by those words even subsequently. The meaning of the words might shrink or expand.

36. R.S. Nayak v. A.R. Antuley , Section 21 of Indian Penal Code 1860 was construed by referring to the principle of contemporanea expositio and it was held that a Member of Legislative Assembly (MLA) is not a public servant as defined in the section . N. Suresh Nathan v. Union of India, applying contemporanea expositio , the Supreme Court construed a service rule which was relating to promotion of Section Officers. This rule provides that Section Officers who possessed a recognized Degree in Civil Engineering or equivalent could claim their eligibility for promotion if they had completed three years of service in the grade. Further, those Section Officers who possessed a Diploma instead of a Degree, could claim their eligibility for promotion after putting in six years of service in the grade. However, it was not clear that where a person has obtained a Degree during the employment, from what date the aforesaid

37. period of three years shall be reckoned. Supreme Court considered the practice over a long period according to which the period of three years was counted from the date the officer obtained the Degree. This practice was relied upon in construing the rule. In Supreme Court Advocates-on-Record Association v. Union of India, while interpreting Articles 74 and 124 of the Constitution, Supreme Court referred to actual practice in matters of appointment of judges of the Supreme Court and High Courts and observed that since the practice is in conformity with constitutional scheme should be accorded legal sanction by permissible constitutional interpretation.