INTERNAL AIDS TO INTERPRETATION

 

An Aid, on the other hand is a device that helps or assists. For the purpose of construction or interpretation, the court has to take recourse to various internal and external aids. Internal aids mean those materials which are available in the statute itself, though they may not be part of enactment. These internal aids include, long title, preamble, headings, marginal notes, illustrations, punctuation, proviso, schedule, transitory provisions, etc. When internal aids are not adequate, court has to take recourse to External aids. External Aids may be parliamentary material, historical background, reports of a committee or a commission, official statement, dictionary meanings, foreign decisions, etc.

B. Prabhakar Rao and others v State of A.P. and others , AIR 1986 SC 120 O.Chennappa, Reddy J. has observed : “Where internal aids are not forthcoming, we can always have 1 2 recourse to external aids to discover the object of the legislation. External aids are not ruled out. This is now a well settled principle of modern statutory construction.” (para 7)

District Mining Officer and others v Tata Iron & Steel Co. and another (2001) 7 SCC 358 Supreme Court has observed: “It is also a cardinal principle of construction that external aids are brought in by widening the concept of context as including not only other enacting provisions of the same statute, but its preamble, the existing state of law, other statutes in pari materia and the mischief which the statute was intended to remedy.” (para 18)

The Hon’ble Supreme Court of India in K.P. Varghese v. Income Tax Officer, Ernakulam, (AIR 1981 SC 1922), observed that interpretation of statute being an exercise in the ascertainment of meaning, everything which is logically relevant should be admissible. A Rule is a uniform or established course of things. There are three Primary rules of interpretation of statutes- Literal, Golden and Mischief. An Aid, on the other hand is a device that helps or assists. For the purpose of construction or interpretation, the court has to take recourse to various internal and external aids.

 

Title

The role of the title is to give some description of the act. It can further be divided into two parts-

Short Title

It generally does have any role to play in the interpretation and noting can be ascertained from it. It only gives us the name of the act and nothing else.

For eg. The Transfer of Property Act, 1882 ,Code of Criminal Procedure, 1973 etc.

Long Title

It can some use in case where there is the confusion in the meaning of the statute. It tells us about the general object for which the act has been enacted more like preamble only.

For eg. The Transfer of Property Act, 1882 has a long title saying that-“An Act to amend the law relating the Transfer of Property by act of parties”.

ManoharLal v. State of Punjab

It this case it was observed that the scope of the act can be decided with the help of the long title and help can be taken from it for interpretation.

KedarNath v. State of West Bengal

It this case court took the help of the long title while interpreting Section 4 of West Bengal Criminal Law Amendment Act, 1949 and held that it is the discretion of the State government to try any offence under special procedure in special courts.

Aswini kumar Ghose v. Arabinda Bose, AIR 1952 SC

Full title of the Supreme Court Advocates (Practice in High Courts) Act, 1951 specify that this is an Act to authorize Advocates of the Supreme Court to practice as of right in any High Court.

So, the title of a statute is an important part of the Act and may be referred to for the purpose of ascertaining its general scope and of throwing light on its construction, although it cannot override the clear meaning of the enactment.

In Manoharlal v. State of Punjab AIR 1961 SC 418- it was held that no doubt the long title of the Act extracted by the appellant’s counsel indicates the main purposes of the enactment but it cannot control the express operative provisions of the Act.

Similarly in the case of Amarendra Kumar Mohapatra v. State of Orissa AIR 2014 SC 1716- the Court has held that the title of a statute determines the general scope of the legislation, but the true nature of any such enactment has always to be determined not on the basis of the label given to it but on the basis of its substance.

 

Limitations of Title as Aid to Interpretation

·         Title has no role to play where the words employed in the language are plain and precise and bear only one meaning.

·         Title can be called in aid only when there is an ambiguity in the language giving rise to alternative construction.

·         Title cannot prevail over the clear meaning of an enactment.

·         Title cannot be used to narrow down or restrict the plain meaning of the language of the statute.

 

 

Preamble

The preamble is very useful aid to interpretation as it tells us about the true intention of the legislature for which the act was enactment. It roles comes into play in case where the meaning of the enactment is not clear and more than one meaning is formed but not otherwise.

It doesn’t extend the scope of an enactment nor does it restrict it. Courts in the past had taken help from the preamble for interpretation however its role has decreased in the recent times.

The main objective and purpose of the Act are found in the Preamble of the Statute. It is a preparatory statement and contains the recitals showing the reason for enactment of the Act. For e.g. the Preamble of the Indian Penal Code, 1860, is “Whereas it is expedient to provide a general Penal Code for India; it is enacted as follows”.  The preamble is an intrinsic aid in the interpretation of an ambiguous Act

For eg.- The Indian Evidence Act, 1872 has preamble saying that “Whereas it is expedient to consolidate, define and amend the law of Evidence; it is hereby enacted as follows”.

Brett v. Brett

In this case it was observed that preamble can be used to find the intention of the legislature. It forms the spirit of the act. It tells us about all the mischiefs that the legislature wants to remove.

Rashtriya Mill MazdoorSangh v. NTC

It was observed that preamble help can only be taken when a provision is ambiguous. When a provision is clear then preamble help cannot be taken for expanding or restricting the scope of a provision.

Gullipoli Sowria Raj V. Bandaru Pavani, (2009)1 SCC714

Use of the word ‘may’ in section 5 of the Hindu Marriage Act, 1955 provides that “a marriage may be solemnized between two Hindus…..” has been construed to be mandatory in the sense that both parties to the marriage must be Hindus as defined in section 2 of the Act. It was held that a marriage between a Christian male and a Hindu female solemnized under the Hindu Marriage Act was void. This result was reached also having regard to the preamble of the Act which reads: ‘An Act to amend and codify the law relating to marriage among Hindus”

Importance of the Preamble of Constitution

·         The wording of the Preamble highlights some of the fundamental values and guiding principles on which the Constitution of India is based.

·         The Preamble serves as a guiding light for the Constitution and judges interpret the Constitution in its light.

·         In a majority of decisions, the Supreme Court of India has ruled that neither it nor any of its content is legally enforceable.

·         The Preamble plays pivotal role when there is ambiguity in provisions of any Article or interpretation becomes confusing. This is when the spirit of the Preamble becomes the guiding factor.

·         The Preamble is stem, root and source of the constitution

In Re: Berubari Union (1) (1960) 3 SCR 250, the court held that the Preamble to the Constitution containing the declaration made by the people of India in exercise of their sovereign will, no doubt is “a key to open the minds of framers of the Constitution” which may show the general purposes for which they made the several provisions in the Constitution but nevertheless the Preamble is not a part of the Constitution.

 In Kesavananda Bharti V. State of Kerala (1973) 4 SCC 225, held that the Preamble to the Constitution of India is a part of the Constitution and has a significant role to play in the interpretation of statues, also in the interpretation of provisions of the Constitution.

Limitations of Preamble as Aid to Interpretation

·         Preamble can be resorted to only when the language of a provision is reasonably capable of alternative construction.

·         Preamble cannot either restrict or extend the meaning and scope of the words used in the enacting part.

·         In case of conflict between Preamble and a section, the preamble would succumb and section shall prevail.

·         Preamble cannot be regarded as source of any substantive power or of any prohibition or limitation

In A.C. Sharma v. Delhi Administration AIR 1973 SC 913, the appellant challenged his conviction under Section 5 of the Prevention of Corruption Act, 1947. His main ground was that after the establishment of the Delhi Special Police Establishment, the anti-corruption department of the Delhi Police has ceased to have power of investigating bribery cases because the preamble of the Delhi Special Police Establishment Act, 1946 pointed out to this effect. The court, however, held that no preamble can interfere with clear and unambiguous words of a statue. Section 3 of the Delhi Special Police Establishment, 1946 empowered the Delhi Special Police also to investigate such cases.

In Rashtriya Mill Mazdoor Sangh v. NTC (South Maharashtra), the Supreme Court while interpreting certain provisions of the Textile Undertakings (Take over of Management) Act, 1983 held that when the language of the Act is clear, preamble cannot be invoked to curtail or restrict the scope of an enactment.

Marginal note

They are inserted generally at the side of the sections and have no useful role to play interpretation. Most of the time it have been seen that they have not made by the people who have enacted the provision and are added in the subsequent stages by other people other than legislators. Courts have refrained from using them for interpretation.   

Marginal notes are inserted at the side of the sections in an act and express the effect of the sections stated.

Limitations

 — unless the marginal notes in the enactments are added by the assent of legislature they cannot be relied upon.

— occasionally they are inaccurate and they are not considered to be a part of the statutes.

— however, the marginal notes in our constitution have been added by the constituent assembly itself and hence, they are frequently referred and relied upon for interpretation of the provisions.

In Bengal immunity company v. State of bihar, the supreme court held that the marginal notes to article 286 of the constitution was a part of the constitution and therefore, it could be relied on for the interpretation of that article.  Vekatarama aiyyar j. In minority judgement held that – m.n cannot be referred for construction or to curtail the plain meaning of the words

Tara Prasad V Union Of India

Supreme court held that title cannot take away effect of provision or declare it legislatively incompetent ,if within the jurisdiction of legislature to enact

K.P Varghesse V Income Tax Officer

Supreme court held that if there is no doubt marginal notes cannot be refereed. Relied upon to get drift of section or show what the section is dealing with. Gives a clue about the meaning n purpose. It Cannot control interpretation when words are clear or un ambiguous.

S P Gupta V Prez Of India

In case of conflict, marginal notes has to yield. It can be looked as an aid

P Aisha v Returning Officer, Kollam Panchayat

High court of kerala observed that marginal note of Article 243 constitution “bar to interference by courts in electoral matters”can be relied if there is ambiguity in wording of  the main provision. If no ambiguity,marginal notes cant control meaning of the operative part.

Article or sec 88 kerala panchayat act does not express intent to bar jurisdiction of civil court  from electoral matters.

Imperial Oil Ltd. v. Canada; Inco Ltd. v. Canada, , it says at paragraph 57 although marginal notes are not entirely devoid of usefulness, their value is limited for a court that must address a serious problem of statutory interpretation.

Uttam Das Chela Sunder Das v. SGPCA AIR 1996 SC 2133, it was observed that:
Marginal notes or captions undoubtedly, part and parcel of legislative exercise and the language employed therein provides the key to the legislative intent. The words employed are not mere surplusage.

In Balraj Kumar v. Jagatpal Singh, LORD MACHNAGHTEN observed that marginal notes to a section of an Act of parliament cannot be referred to for the purposes of construing the Act. The opinion that marginal notes can be used for interpretation had originated by mistake and has been exploded long ago.

In Commissioner of Income Tax, Bombay v. Ahmedbhai Umarbhal and Co. Bombay, JUSTICE PATANJALI SHASTRI observed that marginal notes cannot be referred to for the purpose of constructing the statute.

In Tara Prasad Singh v. Union of India, it was held that marginal notes to a section of the statute cannot take away the effect of the provisions.

In Guntaiah v. Hambamma, Karnataka Land Revenue Amendment Rules, 1960 were in question .It was held that in the title to Rule 43-G, it is stated that the grants of lands under preceding rule shall be subjected to the following conditions, This title to the rules as such cannot be taken as the key words to interpret rule 43-G. They have got the effect of only marginal notes. The marginal notes are not considered as legitimate aid to construction of any section or rule. The side notes are not considered as a part of Act.

In exceptional cases the legislators themselves insert the marginal notes. The marginal notes so inserted by the legislators are considered to be a part of enactment and can be legitimately used as aid to construction of that section, in the margin of which they are printed

Anwarul Haq v. State of U.P, Section 324 of Indian Penal Code, 1860 provides that:
 whoever, except in the case provided for by Section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by instrument which used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any explosive substance or by means of any substance which is deleterious to human body to inhale, to swallow or to receive into the blood or by means of animal shall be punished with imprisonment of either description for a term which may extend to three years or with a fine or with both.

The expression any instrument which, used as weapons of offence, is likely to cause death was in question before, used as a weapon of offence, is likely to cause death was in question before the Supreme Court . The Marginal Note says voluntary causing hurt by dangerous weapons or means.

It was held that this expression should be construed with reference to the nature of instrument. This section prescribes a severe punishment where an offender voluntarily causes hurt by dangerous weapon or by other means stated in section. This expression when read in the light of marginal note of Section 324, means dangerous weapon which if used by the offender is likely to cause death.

 

Limitations of Marginal Notes as Aid to Interpretation

— Marginal notes are very rarely used for interpretation as they are not considered to be a good aid to construction.

— Only those marginal notes can be used for construing a provision which have been inserted with assent of the legislature.

— Marginal notes can be called in aid only when language suffers from ambiguity and more than one construction is possible.

 — Marginal notes cannot frustrate the effect of a clear provision.

Headings

The headings are like a preamble which helps as a key to the mind of the legislature but do not control the substantive section of the enactment.

Headings are of two kinds – one prefixed to a section and other prefixed to a group or set of sections. Heading is to be regarded as giving the key to the interpretation and the heading may be treated as preambles to the provisions following them.

Conflicting opinions have been expressed on the question as to what weight should be attached to the headings. “A Heading”, according to one view, “is to be regarded as giving the key to the interpretation of the clauses ranged under it, unless the wording is inconsistent with such interpretation and so the headings might be treated “as preambles to the provisions following them.”

Recently the Supreme Court expressed itself as follows:

“It is well settled that the headings prefixed to sections or entries (of a Tariff Schedule) cannot control the plain words of the provisions; they cannot also be referred to for the purpose of construing the provision when the words used in the provision are clear and unambiguous; nor can they be used for cutting down the plain meaning of the words in the provision”.

The Headings in a statute or in Regulations can be taken into consideration in determining the meaning of the provision where that provision is ambiguous, and may sometimes be of service in determining the scope of the provision. But where the enacting words are clear and unambiguous, the title and headings must give way, and full effect must be given to enactment.

It is permissible to assign the heading or title of a section a limited role to play in the construction of statutes. They may be taken as very broad and general indicators of the nature of the subject - matter dealt with thereunder. The heading or title may also be taken as a condensed name assigned to indicate collectively the characteristics of the subject - matter dealt with by the' enactment underneath, though the name would always be brief having its own limitations. In case of conflict between the plain language of the provision and the meaning of the Heading or Title, the Heading or Title would not control the meaning which is clearly and plainly discernible from the language of the provision thereunder, but they may explain the ambiguous words. If there is any doubt in the interpretation of the words of the section, the headings certainly help the court to resolve the doubt.

However, this point cannot be ignored that headings can never be an exhaustive picture of the sections against which they appear. They are not discussed in Parliament; not are they voted upon as is the case with long titles (and preambles). They are often altered by the draftsman in consultation with the Parliament Secretariat when the sections against which they appear undergo a change during their passage in Parliament.

What would happen if the marginal note or a heading is in conflict with the section against which it appears; will it overrule the section or vice-versa?

So far as India is concerned, it was stated by Lord Macnaghten in Thakurain Balraj Kunwar v. Rae Jagar Pal Singh Case  -

“There seems to be no reason for giving the marginal notes in an Indian statute any greater authority than the marginal notes to an English Act of Parliament. It was however, observed that the marginal note, though it cannot control the meaning of the section if it is clear and unambiguous, may be of some assistance to show the drift of a section.”

He referred in this connection to The Commissioner of Income tax, Bombay v. Ahmedabhai Umarbhai Case

“Where the word "sedition" did not occur in the body of the section but only in the marginal note, the Privy Council observed that there was no justification for restricting the content of the section by the marginal note which was not an operative part of the section but merely provided the name by which the crime defined in the section was to be known. The temptation of using the marginal note for explaining the section should, of course, be repelled by the draftsman. If any explanation is needed, the section should be redrafted.”

In the case of Union of India V. Raman Iron Foundary, it was held that a heading cannot control the interpretation of a clause if its meaning is otherwise plain and unambiguous, but it can certainly be referred to as indicating the general drift of the clause and affording a key to a better understanding of its meaning. 

In Krishnaiah v. State of A.P. and Ors. (AIR 2005 AP 10), it was held that headings prefixed to sections cannot control the plain words of the provisions. Only in the case of ambiguity or doubt, heading or sub-heading may be referred to as an aid in construing provision.

  In Durga Thathera v. Narain Thathera and Anr. (AIR 1931 All 597), the court held that the headings are like a preamble which helps as a key to the mind of the legislature but do not control the substantive section of the enactment.

In Novartis Ag. v. Union of India, the sectional headings were relied on while interpreting Section 5, 3(d), 2(1) (j) and (ja) and 83 of the PatentsAct, 1970.

In Union of India v. ABN Amro Bank , held that the heading of a section can be regarded as key to interpretation of the operative portion of said section. If there is no ambiguity in the language of the provision or if it is plain and clear, then heading used in said section strengthens that meaning.

In N.C. Dhoundial v. Union of India, it was held that “Heading” can be relied upon to clear the doubt or ambiguity in the interpretation of the provision and to discern the legislative intent.

 

However, there is a conflict of opinion about the weightage to be given to them. While one section of opinion considers that a heading is to be regarded as giving the key to the interpretation of the clauses ranged under it and might be treated as ‘preambles to the provisions following it’, the other section of opinion is emphatic that resort to the heading can only be taken when the enacting words are ambiguous.

According to this view headings or titles prefixed to sections or group of sections may be referred to as to construction of doubtful expressions, but cannot be used to restrict the plain terms of an enactment.

We must, however, note that the heading to one group of sections cannot be used to interpret another group of sections.

Bhinka V Charan Singh

Interpretation of sec 180 up tenancy act 1939 was in question. It provides for a suit for ejectment of a person taking or retaining possession of the land without consent of the person entitled to admit him to occupy such land. Heading read as “ejectment of person occupying land without title”.here, appellant was in possession according to law hence not liable to get ejected.

M/S Prick India Ltd V Union Of India

Sc held that headings cannot control plain meaning of a provision, or it cannot be refered for construction. Headings cant cut down on plain meaning. It is to be only used if ambiguity arises or language is not precise but even in those cases cannot cut down on plain meaning.

Iqbal Singh Marwah

General rule is that heading cannot give different effect to clear words of the section .they are not to be treated as if marginal note,not inserted just to classify statute .they are an important part important part, explaining the section immediately following them, as a preamble to the statute but affording a better key to construction.

Limitations of Headings as Aid to Interpretation
 Headings can neither cut down nor extend the plain meaning and scope of the words used in the enacting part

Headings cannot control the clear and plain meaning of the words of an enactment

Illustrations

Illustrations are generally given in the form of examples including situations that occur in real life. They do not form the part of an enactment but still they are very useful aid to interpretation. They can help us in understanding the real meaning of an enactment in case where there is some uncertainty. They illustrate the intention of the legislature in the form of facts and gives answer to situations arising in those facts. It cannot extend the meaning of an enactment.

Illustrations are sometimes appended to a section of a statute with a view to illustrate the provision of law explained therein. A very large number of Indian Acts have illustrations appended to various sections.

 They being the show of mind of the legislature are a good guide to find out the intention of the farmers. But an enactment otherwise clear cannot be given an extended or a restricted meaning on the basis of illustrations appended therein

The Supreme Court in Mahesh Chand Sharma v. Raj Kumari Sharma observed that illustration is a part of the section and it helps to elucidate the principle of the section However, illustrations cannot be used to defeat the provision or to modify the language of the section. This is reflected by a legal maxim “Exampla illustrant, non-restringent legem” which means examples only illustrate but do not narrow the scope of rule of a law.

In Mudliyar Chatterjee v. International Film Co., it was observed that in construing a section, an illustration cannot be ignored or brushed aside.

In Mohommed Sydeol Ariffin v. Ooi Gark, it was held that the illustrations are of relevance and value in the construction of the text of the section, although they donot form part of the section.

Shambhu Nath V State Of Ajmer

Illustration does not exhaust the full content of the section nor does it curtail.

Jumma Masjid v. Kodimaniandra Deviah,

It would be the very last resort of construction to make this assumption. The great usefulness of the Illustrations which have, although not part of the sections, been expressly furnished by the Legislature as helpful in the working and application of the statute, should not be thus imparied.

Schedules

It helps in the working of an enactment properly and it forms the part of the enactment. When meaning of an enactment is not clear help can be taken from it to ascertain the meaning.

Schedules form part of an Act. Therefore, they must be read together with the Act for all purposes of construction. However, the expressions in the Schedule cannot control or prevail over the expression in the enactment. If there appears to be any inconsistency between the schedule and the enactment, the enactment shall always prevail. They often contain details and forms for working out the policy underlying the sections of the statute for example schedules appended to the Companies Act, 2013, to the Constitution of India.

In M/s. Aphali Pharmaceuticals Limited v. State of Maharashtra, the Supreme Court held that in case of a clash between the schedule and the main body of an Act, the main body prevails and the schedule has to be rejected. 

In Jagdish Prasad v. State of Rajasthan and others, the Supreme Court ruled that the purpose of a schedule is to advance the object of the main provision and deletion of schedule cannot wipe out provisions of an Act in effect and spirit.

Punctuations

It doesn’t have much of a role to play in the interpretation and is not taken as useful tool to ascertain the meaning of an enactment. The role played by it is to separate the sentences and nothing else.

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

Mohd. Shabbir v. State of Maharashtra, while interpreting Section 27 of the Drugs and Cosmetics Act, 1940, the Supreme Court pointed out that the presence of ‘comma’ after ‘manufactures for sale’ and ‘sells’, and absence of any ‘comma’ after ‘stocks’ would indicate that only stocking for sale could amount to offence and that mere stocking cannot be treated as an offence for the purpose of the Drugs and Cosmetics Act. Another important internal aid is the schedule or schedules appended to a statute. It forms part of the statute and it can be interpreted independently as well as with the aids of interpretation of statutory provision.

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

 n Mohammad Shabbir v. State of Maharashtra

·         Interpretation of Section 27 of the Drugs and Cosmetics Act, 1940 was in question. 

·         This provision says that whoever ‘manufactures for sale, sells, stocks or exhibits for sale or distributes’ a drug without licence would be liable to punishment. 

·         The Supreme Court held that mere stocking of a drug is not an offence and an offence is made out only when stocking is for sale. 

·         There is no comma after the word ‘stocks’ which means that the words ‘stocks or exhibits’ are both qualified by the words ‘for sale’ used thereafter. 

In Dadaji v. Sukhdeobabu, the Supreme Court held that the punctuation marks by themselves do not control the meaning of a statute where its meaning is otherwise obvious. 

In the English case of I.R.C. v. Hinchy, it was held that it is very doubtful if punctuation marks can be looked at for the purposes of construction. 

In Bihar SEE v. Pulak Enterprises, it was held that punctuation mark (comma) is a minor element in the interpretation of statute, especially in case of subordinate legislation.

In Director of Public Prosecution v. Schildkamp, LORD REID agreed that punctuation can be of some assistance in construction.

Explanation

An Explanation is added to a section to elaborate upon and explain the meaning of the words appearing in the section. The purpose is not to limit the scope of the main section but to explain, clarify, subtract or include something by elaboration.

They are inserted with the purpose of explaining the meaning of a particular provision and to remove doubts which might creep up if the explanation had not been inserted

It does not expand the meaning of the provision to which it is added but only ties to remove confusion, if any, in the understanding of the true meaning of the enactment.

A large number of Indian Acts have explanations attached to various sections. For instance, Section 108 of the Indian Penal Code which defines the word ‘abettor’ has five explanations attached to it.

Sometimes, explanations are inserted not at the time of enactment of a statute but at a later stage. For instance, the two explanations to Section 405 of the Indian Penal Code, which defines the crime of ‘Criminal breach of trust’, were inserted in 1973 and 1975 respectively.

In Bengal Immunity Company v. State of Bihar, the Supreme Court has observed that an explanation is a part of the section to which it is appended and the whole lot should be read together to know the true meaning of the provision.

In Bihta Co-operative Development Cane Marketing Union v. State of Bihar, the Supreme Court said that in case of a conflict between the main provision and the explanation attached to it, the general duty of the court is to try to harmonise the two.

In S. Sundaram v. V.R. Pattabhiraman, the Supreme Court observed that it is now well settled that an explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision. 

An explanation cannot in any way interfere with or change the enactment of any part thereof but where some gap is left which is relevant for the purpose of the explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the court in interpreting the true purport and intendment of the enactment, and it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of the Act by becoming an hindrance in the interpretation of the same. 

In M.K. Salpekar v. Sunil Kumar Shamsunder Chaudhari, the Supreme Court observed that where a provision is related to two kinds of accommodation—residential and non-residential, and the explanation attached to it refers to only residential accommodation, it cannot control non-residential accommodation and, therefore, cannot be looked into in matters connected with the latter. 

 The object of an Explanation is to understand the Act in the light of the Explanation. The object of an Explanation to a statutory provision is-

(a) to explanation the meaning and intendment of the Act itself,

 (b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve,

c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful,

(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the court in interpreting the true purport and intendment of the enactment, and

LIMITATION

Explanation cannot have the effect of modifying the language of section

 Explanation cannot control the plain meaning of words of the section.

SAVING CLAUSE

Saving clause on the other hand is generally appended where there is a case of repeal and re-enactment.Rights already created under repealed enactments are not are not disturbed. They are normally inserted in a repealing statute. Clash between operating part and saving clause, saving clause will be rejected.

EXAMPLE:

If you observe the Acts, usually (there are a few exceptions), Section 2 is about Definitions and the last Section is about Repeal and Savings clause.

Consider this example – GST act is introduced in 2017 and repealed Service Tax, Excise, VAT, etc.

Suppose, the tax departments discover an evasion of VAT by a dealer in 2016, can GST officer open the case and Order the dealer to pay up the taxes?

If the Officer sends a Notice, the dealer may say, Yes, there was tax dues, which I was not aware, but now, VAT Act is repealed (removed/scrapped), how can you ask me to pay the taxes? He is right, isn’t it?

So, in order to give teeth to the Tax Officer to initiate the action against the Tax defaulter under the previous / repealed Acts, this clause called Saving clause is incorporated in every new Act/Code.

In case of GST, you can read Section 174 (the last Section of CGST Act) which says –

that the repeal shall not affect any right, privilege, obligation or liability acquired or incurred under the repealed act or orders.

This means, even after the enacted of GST and repealing of Service Tax, the Government can continue an investigation, enquiry or verification, security and assessments, or recovery of arrears, etc. So, saving clause saves certain provisions, of repealed Act which gives right and liabilities to be carried order after the enacted of the new Act also.

In Agricultural and Processed Food Products v. Union of India, the Supreme Court while interpreting the saving clause in the Export Control Order, 1988 held that the clause only saved the rights which were in existence before the order was issued and it did not confer any new rights which were not in existence at that time.

Limitations of Punctuation Marks as Internal Aid to Construction

• ·         Some jurists have opined that punctuation marks are of no use as internal aids to construction and it is an error to rely on punctuation marks in construing the Acts of Legislature.
• ·         Presence of comma or absence of comma must be disregarded if it is contrary to plain intention of the statute.

Non Obstante Clause

A section sometimes begins with the phrase ‘notwithstanding anything contained etc.’ Such a clause is called a non obstante clause and its general purpose is to give the provision contained in the non obstante clause an overriding effect in the event of a conflict between it and the rest of the section. Thus, there is generally a close relation between the non obstante clause and the main section and in case of ambiguity the non obstante clause may throw light on the scope and ambit of the rest of the section. If, however, the enacting part is clear and unambiguous, its scope cannot be whittled down by the use of the non obstante clause. 

This phrase i.e. ‘notwithstanding anything in’ is in contradiction to the phrase ‘subject to’. Cases 

In Aswini Kumar v. Arabinda Bose, the petitioner was an Advocate of the Calcutta High Court and also of the Supreme Court of India. The Supreme Court Advocates (Practice in High Courts) Act, 1951 is an Act to atuthorise Advocates of Supreme Court to practice as of right in any High Court. When he filed in the Registry on the original side of the Calcutta High Court a warrant of authority executed in his favour to appear for a client, it was returned, because under the High Court Rules and Orders, Original side, an Advocate could only plead and not act. The Advocate contended that as an Advocate of the Supreme Court he had a right to practice which right included the right to act as well as to appear and plead without being instructed by an attorney. The contention was accepted by the majority. The Supreme Court observed that: “the non obstante clause can reasonably be read as overriding ‘anything contained’ in any relevant existing law which is inconsistent with the new enactment, although the draftsman had primarily in his mind a particular type of law as conflicting with the new Act. The enacting part of a statue must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously; for, even apart from such a clause, a later law abrogates earlier laws clearly inconsistent with it. While it may be true that the non obstante clause need not necessarily be co-extensive with the operative part, there can be no doubt that ordinarily there should be a close approximation between the two.”

 

Proviso

 In some sections of a statute, after the main provision is spelled out,a clause is added, with the opening words “provided that…”.

— The part of the section commencing with the words “Provided that…” is called Proviso.

 — A proviso is a clause which is added to the statute to to limit its applicability.

— As such, the function of a proviso is to qualify something or to exclude, something from what is provided in the enactment which, but for proviso, would be within the purview of enactment.

·         Nothing in this Act shall apply to documents or transactions specified in the First Schedule :the Central Government may, by notification in the Official Gazette, amend the First Schedule by way of addition or deletion of entries thereto. ADDITIONAL INFOR...SEC EXTEND

·         The appropriate Government shall, by notification in the Official Gazette, specify the scale of service charges which may be charged and collected by the service providers under this section: Provided that the appropriate Government may specify different scale of service charges for different types of services.

·         Provided that this clause does not apply to any information which is automatically generated solely for the purpose of enabling an electronic record to be despatched or received.

·         section 21, after considering the documents accompanying the application and such other factors, as he deems fit, grant the licence or reject the application

·         Provided that no application shall be rejected under this section unless the applicant has been given a reasonable opportunity of presenting his case.

     

    A proviso may serve four different purposes: -

- qualifying or excepting certain provisions from the main enactment;

 -it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;

-it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and

-it may be used merely to act as an option addenda to the enactment with the sole object of explaining the real intentions of the statutory provision

Where the proviso is directly repugnant to a section, the proviso shall stand and be held a repeal of the section as the proviso speaks the latter intention of the makers.

— In Union of India v. Sanjay Kumar Jain, the function of proviso was declared that it qualifies or carves out an exception to the main provision.

— In Vishesh Kumar v. Shanti Prasad, the Supreme Court held that a proviso cannot be permitted by construction to defeat the basic intent expressed in the substantive provision.

 In Union of India v. Dileep Kumar Singh, it has been held that though a proviso does not travel beyond the provision to which it is appended, golden rule is to read the whole Section, inclusive of the proviso in such manner that they mutually throw light on each other and result in a harmonious construction.

— In Shimbhu v. State of Haryana, the Apex Court held that a proviso should be construed in relation to the main provision.

— In State of Punjab v. Kailash Nath, the Supreme Court held that the proviso has to read as an exception to the main provision of a section.

It has been held in  R. v. Leeds Prison (Governor),that the main part of an enactment cannot be so interpreted as to render its proviso unnecessary and ineffective. Sometimes more than one provisos are attached with the section. If there is any repugnancy between the two provisos, the latter shall prevail.

 

T DEVADASAN V UNION OF INDIA

Petitioner argues that he would have a chance of promotion if upsc had adhered to reserved quota for scheduled caste and scheduled tribes. Instead it carried forward to next year- there by swelling the quota to 65% percent. Violation of article 16 (1) – EQUALITY OF OPPURTUNITY  

Counter argument- ar 16(4) not withstanding anything contained in this article state can makes laws for reservation in jobs for backward class if not adequately represented. Supreme court held that- unlimited reservation destroy the essence of article 16(1). Clause (4) – considered as proviso- so cannot be interpreted to destroy the main prov i.e clause (1)