Chapter 2: Interpretation of statute.

Chapter 2: Interpretation of statute.

a). Different parts of statutes

Intrinsic aid is the aid which may be found within the four corners of the statute. It is also known as internal aids which are the source within the act and are found within the act itself.

The intrinsic aid includes

•  Title.
•  Preamble. 
• Marginal notes.
• Headings.
•  Schedules.
•  Proviso.
•  Punctuation.
•  Exception.

Title:

• In the past, they did not use titles in Acts for interpretive purposes. But now titles are part of statutes because they give the notice of content of law. Title is a part of a statute which can be long and short. However, it is not controlling to the scope of an Act.

There are two types of title: - 

1. Long title: - an Act consists of a long title which proceeds the preamble, and it is a part of the Act itself. For example: - ‘An Act made to amend and consolidate the law of evidence’.

• In Manohar Lal V. State of Punjab case, it has stated that the long title of the act is relied as a guide to decide the scope of the act. 

2. Short title: - 

• According to Lord Thoring, every Act of parliament should have a short title ending with the date of the year in which it is passed.
• It is given in the Act solely  for the facility of reference. However title is not part of enactment so it cannot be legally used to restrict the plain meaning of the words in an enactment of the act.
• For example:- ‘Evidence Act 2031’.

Preamble:

• Every Act should and has a preamble, which expresses the scope, object and purpose of the Act.
•  In regard to the Constitution the preamble of Constitution is also regarded as the mirror of constitution as it describes the basic  essence, purpose and scope of the enactment of such Constitution.

Sutherland view: - “Preamble cannot control the enacting part of the statute in cases where the enacting part is expressed in clear, unambiguous terms ‘but’ may be restored to help and discover the intention of the lawmaker". The function of the preamble is to explain and not to confirm power.

Priorly,  preamble is not regarded  as a part of statute because English Courts were hesitant to consider preamble as a part of statute. But now it is deemed as an important part of the statute.

CASES:

I. Yagya Murti Banjade V.  Durgadas Shrestha, NKP 2077, D.N. 54, Vol. 1:

• The court stated that the preamble is an inseparable part of a statute even if it does not control the main provision and it is useful to a certain legislative intent. Long with this the court referred the term Preamble as the golden key ‘सुनौलो साँचो’.

II. K.I Singh vs HMG, NKP 2022, D.N. 279:

• The court observed in paragraph 7 that ‘to understand the purpose of this attitude Preamble is a good instrument’ ‘ऎनको मक्स्द बुझ्न् प्रस्तावना राम्रो साधन हो’.

III. Attorney General Vs. Prince Ernest Augustus of Hanover (1957) A.C.436:

• The court has stated that Preamble may be of some aid in discerning statutory purpose but tells about how far the legislature has directed.

IV. In the case of Kashi Prasad Vs. State: - the court held that Preamble can be treated as a key for the interpretation of statute but cannot be used to defeat the innating clauses of a statute.

Marginal notes

Marginal notes are the notes which are inserted at the side of the section in an Act and express the effect of the statute. In Nepal we do not use marginal notes; it is deemed as a dying concept.

Cases:

1. Wilks Vs. Goodwin.

The court held that the side notes are not part of the Act and hence marginal notes cannot be referred to.

2. C.I.T Vs. Ahmedbhai Umarbhai and Co. AIR 19590 SC 134 at 141.

Justice Patanjali Sastri declared that marginal notes cannot be referred to for the purpose of construing the statute.

HEADING:

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

Case:

1. Krishnaiah Vs. State of A.P. AIR 2005 AP 10.

It was held that headings prefixed to section and cannot control the plain word of the provision.

2. Bullmer Vs. I.R.C

But chapter heading can be used to interpret ambiguous provision.

SCHEDULES

Schedules form part of the statute. They are at the end and contain minute details for working out the provision of the express enactment.

A schedule may contain some subjects in the form of a list; for example, as in the case of the Constitution of Nepal 2072, from schedules 5-9 has the provisions about distribution of power between the three layers of governments and also other matters in Schedules 1-4.

Schedule may or may not be controlling depending upon whether such Act is substantive law or procedural law. 

Case:

 Jagdish Prasad Vs. State of Rajasthan:

The supreme court held that the purpose of a schedule is to advance the object of the main provision and deflection of it cannot wipe out the provision of an Act in effect.

PUNCTUATION

Punctuation is regarded as a minor element in the construction of a statute. It cannot be regarded as a controlling element for the determination of the meaning of words used in a statute. In ancient times, statutes were passed without punctuation but in modern times statutes normally do not contain punctuation.

Case: Ashwini Kumar Vs. Arabinda Bose: - 

The supreme court held that a punctuation cannot be regarded as a controlling element and cannot be allowed to control the plain meaning of the text.

PROVISIO

Generally, proviso is understood as a condition inserted into any deed upon the performance whereof the validity of deed consists of and it is a stipulation, exception or limitation to a general enactment. At the time of interpretation of proviso, it must be interpreted harmoniously with the general enactment of the statute.

Black Law dictionary defines: - a limitation condition or stipulation upon whose compliance a legal or formal document’s validity or application may depend in drafting, a provision that begins with the words provided that and supplies a condition, exception or addition.

Maxwell defines that, if a proviso cannot reasonably be constructed otherwise than as contradicting the main enactment, then the proviso will prevail on the principle that ‘it speaks the last intention of the maker’.

The part of the section commencing with the words ‘provided that…’ is called proviso. It is intended to be a part of the section and not an addendum to the main provisions. The function of proviso is to qualify something or to exclude something. Proviso is different from ‘exception’ or ‘sub-clause’ or ‘explanation’ of an Act or Statute. 

It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision, and it should receive strict construction.  The scope of Act would change if the proviso were constructed.

Case:

Asharatna Bajracharya Vs. Durgadas Shrestha, NKP 2027, D.N.546

The court elaborated that there exists the function of a proviso within a main provision and if the main provision is repelled, the proviso is ipso facto repealed. Proviso is different than sub clause . ( मूल दफाबाट केही कुरा झिक्नु परेमा (जुन नझिक्नाले मूल दफामा परेको हुन्छ) वा अर्थ सिमित गर्नु परेमा कुनै दफामा प्रतिबन्धात्मक वाक्यांश दिएको हुन्छ । मूल दफा खारेज भएमा प्रतिबन्धात्मक वाक्यांश पनि मूल दफा साथ साथ जान्छ । प्रतिबन्धात्मक वाक्यांशले केही नयाँ कुराको ऐन बनाउने काम गर्दैन;प्रकरण  ९).

EXCEPTION

The exception restrains the enacting clause to particular cases. 

For example: - there are 10 exceptions attached to Section   499 of Indian Penal Code and there are 5 exceptions attached to Section 300 of Indian Penal Code which defines ‘Murder’.

Case: Director of Secondary Education V. Pushpendra Kumar: 

The supreme court held that a provision in the nature of an exception cannot be so interpreted as to subserve the main enactment.

EXPLANATIONS

Explanations are given at the end of each section and it is a part and partial of enactment of a statute. Explanations are sometimes put to clarify the subject matter in a manner that is understood by a common person.

An explanation is given to a section to explain the meaning of words contained in a section.

There are two types of explanation:- 

•  Negative explanation 
• Positive explanation

How to interpret the explanation?

It should be read as to harmonize with the main provision and clear up any ambiguity in the section if existed any. 

Case: Man Bahadur Bishwakarma Vs. HMG, NKP 2049

The court referred to the utility of amending explanation to a section. Explanation helps to remove possible misunderstanding or ambiguity.

c) COMMENCEMENT, REPEAL AND REVIVAL OF LEGISLATION

Commencement of Legislation

The day on which the Act or any Rules, regulations or legislation came into effect is known as the commencement. The word commencement is used with reference to an Act relating the day on which such Act came into force.

If there is no provision regarding the commencement of the Acts, then it comes into force on the day when it receives presidential authentication.

The provision of commencement: - 

•  Muluki  Ain 1910, abam Section 4.
• Section 2(C) of Interpretation of Statutes Act 2010 (kannon Byakhya Ain 2010 B.S.) has defined the commencement that it means the day on which the Act/ Enactment comes into force. 
• Section 3 of Interpretation of Statutes Act 2010 (kannon Byakhya Ain 2010 B.S.) has the provision of:

Regarding, the date of commencement of the Act, in case the date of commencement is not mentioned in any Act/ Enactment, it has given certain provisions.

Commencement can be done in the following ways: - 

• It may be stated in the Act itself.
•  It may be delegated to the executive.
•  It may immediately come enter into force.
•  It may commence after certain days of authentication.
• It may commence with having retrospective commencement provision.
• Commencement of one Act maybe linked with commencement of another Act.

Case

B.P. koirala Vs. PM and cabinet of ministers, NKP 2016, D.N. 56

The Supreme Court has stated that an Act without authentication of head of tate cannot be regarded as law. ( लालमोहर सदर नभएकोलाई ऐन भनी अदालतले मान्यता दिन नमिल्ने । ऐन मस्यौदा मात्र हो भन्नु भएबाट कानून मन्त्रालय बुझ्दा, सो ऐन लालमोहर भएको छैन भन्ने लेखी आएकोले लालमोहर सदर नभएकोलाई ऐन भनी अदालतले मान्यता दिन नमिल्ने ।)

Repeal of legislation 

Repeal means to revoke, abrogate, or cancel particularly a provision of statute. Any statute may repel an Act as a whole or in part. It could be either expressly or impliedly by enacting matters contrary to and inconsistent with the prior legislation. Therefore, a statute frequently states that certain prior statutory provisions are hereby repealed. 

The general classification of Repeal is :- 

• Express. 
• Implied.

Cases: 

Mahanta Singh Thakuri Vs. Sekharnath Aacharya, D.N. 1653: 

The Supreme Court held that the repeal of any law does not affect any rights, privilege obligation or liabilities provided under that particular law. ( नेपाल कानुन व्याख्या सम्बन्धी ऐन, २०१० को दफा ४(ग) ले व्यवस्था गरे अनुसार खारेज भएको कुनै ऐन बमोजिम पाएको, हासिल गरेको वा कुनै हक, सुविधा, कर्तव्य वा दायित्वमा असर पार्न सक्ने देखिन्न ।)

Masaihaji Musalman Vs. Kapilvastu District Court: the supreme court held that if law is amended and cannot have clearly mentioned provision about the jurisdiction then the right of court to hear the case did not end. ( कानुनमा संशोधन भएपनि सो कानुनमा स्पष्ट व्यवस्था नभएसम्म दायरी मुद्दा हेर्ने अधिकार समाप्त भएको सम्झन नमिल्ने।)

Interpretation Of Laws Act 2010

Section 4:  Effect of Repeal.

Section 5: Repeal of Act making textual amendment in Act or Rules/ Regulation/By laws.

Section 7: Construction of References to Repealed Enactments.

Revival of Legislation 

Revival is the process of renewing the operative force of a judgment which has remained hidden or unexecuted for so long a time, that execution cannot be issued upon it without a new process to reanimate it.

In general, it means the restoration to use or accept whereas in the legal context it refers to what occurs when a court reinstate the force of an old judgment and upon the petition of a party.

 Interpretation of Laws 2010

Section 6: Revival of Repealed Enactments

“For the purpose of reviving, either wholly or partially, any enactment wholly or partially repealed, expressly to state that purpose”.

 It contains the provision regarding revival of repealed enactment. If any legislation is to be revived then that should be discussed in the parliament.

Interpretation of Law 2010,  

Section 24- Continuation of Orders etc., issued under Enactments repealed and reenacted, “Where any Nepal Act, after the Commencement of this Act, repealed and re-enacted with or without modification, then, it is otherwise expressly provided, any appointment, notification, order, scheme, Rule, form or By-laws made or issued under the repealed Act or Regulation shall, so far 

as it is not inconsistent with the provisions re-enacted, confine in face, and be deemed to have been made or issued under   the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, form or Byelaw made or issued under the provisions so reenacted.

Cases:

Suresh Bahadur Malla Vs. Nepal Rastra Bank: if any regulation, directives or guidelines have not been issued by new Act then such Regulation, directives and guidelines of old Act is acceptable as per 24 of interpretation of a statute act 2010.

Pancha Tamang Lama Vs. District Development Committee and others NKP 2059, Decision Number 7143:  the supreme court held that if any regulation directives or guidelines has not been issued by new act then such regulation, regulations or guidelines of old Act is acceptable under the premise of section 24 of Interpretation of Laws 2010. (नेपाल कानुन व्याख्या सम्बन्धी ऐन, २०१० को दफा ४(ग) ले व्यवस्था गरे अनुसार खारेज भएको कुनै ऐन बमोजिम पाएको, हासिल गरेको वा कुनै हक, सुविधा, कर्तव्य वा दायित्वमा असर पार्न सक्ने देखिन्न ।)

Mera Gurung Vs. Department of immigration in KP 2051, volume 36:

Supreme Court held that as per section 24 of the Interpretation of the Statute Act. Rules should prevail until the enactment of new Rules under the Immigration Act.

2.d THE EXTERNAL ASPECTS.

There are internal and external aspect of statute where the internal aspect is also known as intrinsic aid to interpretation which are part of a statute itself. And the external aspect is also known as extrinsic aid to interpretation which are not the part of the statute itself.

Extrinsic aid goes beyond the four corners of the statute. 

Sutherland view: - it includes information about circumstances existing and events occurring at or after the time or statue goes into effect.

Traditionally a good lawyer was considered as the one who was able to rely on the four corners of the statute. Additionally,  in common law there was a rule of exclusion whereby extrinsic aids were not admissible in court. Extrinsic aid cannot control the meaning of the statute, they are merely useful. 

In conservative approach judges hesitate to use extrinsic aid whereby in liberal / active approach judges are proactive to use the extrinsic aid.

General rules are: -

• Intrinsic aid is preferred to be used at first than extrinsic aid.
• It cannot control the meaning of the words of the statute.
• It is applied in the case of PATENT or LATENT ambiguity.
• Use of extrinsic aid in interpreting a statutory provision to be justified within well recognized limits.

However, within the extrinsic resources some of them are more useful and relevant in comparison with others extrinsic aids. 

For example: - if a Banking related Statute is being interpreted, the technical and financial dictionary may be more relevant than a commonly used English dictionary.

Additionally in Britain, the collection of parliamentary proceedings are published as HANSARD and they have been considered to be useful extrinsic aid to gauge legislative intent.

Apart from the statute itself, these types of external aspects of a statute are taken into account when the word of the statute is ambiguous and unclear in regard of meaning of the words which is the object of interpretation. There is no uniformity in the students in regard of using external (extrinsic aid). 

Cases:

In the case of Nepal government on the behalf of Kha kumari Vs. Prakash Ojha:

the term masne (मास्ने) was viewed from the dictionary meaning to arrive better interpretation.

Similarly, in the House Dissoulution Judgement, the British Common Law practices of parliamentay process was used and referred for interpreting the constitutional provision which was the object of interpretation.

In the case of B. Prabhakar Rao and others V. State of A.P.and others: - 

The court has observed that where internal aids are not forthcoming, we can always have recourse to external aids to discover the object of the legislation.

S.R. Chaudari Vs. State of Punjab (2001):

court state that debates of the Constituent Assembly (CA) may be relied upon as an aid to interpret the constitutional provision.

2.e HISTORICAL SETTING

The surrounding circumstances and situation which led to the passing of an ACT is the historical setting and this can be considered for the purpose of constituting a statute. 

The history of the external circumstances which led to the enactment in question is of much significance in construing any enactment.

History in general and parliamentary history in particular are relevant in interpreting and construing an ACT. It cannot be used as an aid if the words are plain and clear.

It may include parliamentary history, historical facts, statement of objects and reasons, reports of expert committees.

Parliamentary history

Parliamentary History includes the concepts of drafting of Bill, the debates made, the amendments proposed, speech made by mover of the Bill, Act, Statutes, etc. However, it is generally accepted that the court cannot treat a statute in the light of its official or parliamentary history.

Peter Hogg considered that parliamentary history to include the following basic elements: -

• Report of a royal commissioner lorry from Commission or parliamentary committee.
• Government policy paper.
• Report or study produced outside government at the time of enactment of the statute.
• Earlier versions of statute, before after introduction into parliament.
• Statements made by ministers or members of parliament and testimony of expert witnesses.
• Speech made in the Parliament when the bill is in debate.

Maxwell on legislative history, ‘it is well settled that considerations stemming from legislative history must not be allowed to override the plain of a statute’.

Cases

Administrator - General of Bengal Vs. Prem Lal Mullick: 

Speeches made by the member of the constituent assembly (CA) in the course of debate on the draft constitution is unwarranted.

Davis Vs. Johnson, there was resistance to using HANSARD.

See cases

 Pepper Vs. Hart.

 K.S. Paripoornan Vs. State of Kerala and others (1995).

CONVENTIONS:

Generally, conventions are integrated into the legal framework through implementation of legislation parliamentary uses various means to implement International Convention and it requires legislation before they can have the force of law.

In regard of incorporating convention by a country there exist two basic approaches, they are: -

Monism Approach.

Dualism Approach.

DICTIONARIES, REFERENCE BOOK

Normally, dictionaries hold and locate the plain meaning of the words which are useful for literal rule of interpretation. The meaning of the dictionary may be sought in the light of noscitur a sociis rule.

At the time of interpreting technical or specific terms used in specifications it is better to rely on the technical dictionary. A dictionary can be consulted to find out the meaning of a particular word or phrase when a judicial guidance or authority is not available. 

Sometimes while interpreting or statute, the court refers to a textbook authorized by distinguished jurist and eminent scholars in order to arrive at the meaning of an enactment. In certain cases, Vedas are quoted with the approval of courts, for example Manu smriti, yagnavalka smriti, jimutavahana, vigneshwara and others are taken into account.

Cases

• Nepal Government on the behalf of kha kumari Vs. Prakash Ojha D.N.9629: in this case the dictionary was used to find out the meaning of the word maasne (मास्ने) which is the object of interpretation in this case.

• KI Singh Vs. HMG, NKP 2022, D.N. 279: in this case it was used to interpret the word rajkaj aparadh (राजकाज अपराध) by using a dictionary.

• Yagya Murti Banjade Vs. Durga Das Shrestha, NKP 2027, D.N. 547: similarly in this case it was used to interpret the word Sangathan (सङ्गठन). 

• Kesavananda Bharati Vs. State of Kerala (1973): in this case the court referred a large number of textbooks derived the judgment.

• Motipur Zamindari Company Pvt. Ltd. Vs. State of Bihar, AIR 1962 SC 660: the question was whether the sales tax can be levied on sugarcane or not.

The applicant argued that sugarcane is a green vegetable and should be exempted from tax whereas the dictionary meaning of vegetable was as something which was derived or obtained from the plants.  

And here the supreme court rejected the dictionary meaning and held that sugarcane is not vegetable as in common parlance vegetable is something which is grown in a kitchen garden.

• Mandla Vs. Dowel Lee (1983):

The fact of this case is A boy was excluded from school for wearing a turban. The question for the Court was, does SIKH fall under the definition of Race Relation Act 1976.

Here the statute has defined ‘race’ as including ‘ethnicity’.

And the House of Lord look and relied at the dictionary and found that ethnicity means a long-shared history from a particular reason.

2.f Consolidating and Codifying statute.

Consolidating statute is a statute that collects the legislative provisions on a particular topic and embodies them in a single statute. A consolidating statute reenacts and repeals particular legal subject matters which were previously contained in several different statutes. The purpose of this is to state the combined effect of different statutes and to simplify the presentation of the law.

In dictionary meaning, code is a systematic collection of a statutes, body of law so arranged as to avoid inconsistency and overlapping.

In fact, codification is the systematic process and reduction of the whole body of law into a code in the form of enacted law. 

Lord Hershell interprets codifying statutes as; the object of codifying Act is to end the conflict of decisions.

Salmond defines codification as the reduction of whole corpus juris, so far as practicable to form the enacted laws.

A codifying   statute is one which restates legal subject matter previously contained in custom, common laws, earlier statutes and the court generally presume that a codifying statute supersedes prior case laws.

Example: the British Parliament passed the Bills of Exchange Act 1882 which was an act to codify the laws relating to bills of exchange, cheques and promissory notes

A codifying statute does not exclude reference to earlier case laws on the subject for the purpose of true interpretation of the words. The aim of a codifying statute is to declare the laws on the subject so that judge decides the meaning within the parameter of such laws.

Advantage

• It brings greater certainty of law in a legal system.
• It is precise in form and therefore easier to learn.
• It confirms the changing needs of the time.

Disadvantages

• It can enable the criminals to find a way because of the defects in the law.
• It makes the law rigid.
•  It prevents the further growth of laws.
• It may not be capable of dealing with all types of cases.
• It may raise difficulties in regard to interpretation.

                                                                                                                                                                                                 Prepared and Edited by Manish Rajak and Madhu Dahal