Expressio Unius Est Exclusio Alterius – Interpretation of Statutes

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This maxim is given to gauge the intent of the legislature.[1]If the words of the Statute are plain and its meaning is clear then there is no scope for applying the rule.[2]Through various situations given hereinafter, true nature of this rule has been attempted to be unleashed:

  1. This rule applies when a provision is clearly set out which is in contrast with the other provision which is not clearly set out in the statute. Were both the provisions clearly set out in the statute then harmonious construction had to be applied. To elaborate further on this, look into Harish Chandra Bajpai v. Triloki Singh[3]. In the preceding judgment, question before the Supreme Court was whether the Tribunal could allow an amendment to the original petition whereby a new charge could be introduced. S. 83(3) provided for amending the petition to include the particulars while a general provision was laid out in Order VI Rule 17 of the Code of Civil Procedure. When the question arose whether this rule is applicable in that case or not, the Court holding that this provision operates only when the subject matter is common for the plausible applicability of this rule which isn’t the case here and further observed:

This limitation cannot operate, when the subject-matter of the two provisions is not the same. Section 83(3) relates only to amendment of particulars, and when the amendment sought is one of particulars, that section will apply to the exclusion of any rule of the Civil Procedure Code which might conflict with it, though it does not appear that there is any such rule. But where the amendment relates not to the particulars but to other matters, that is a field not occupied by S. 83(3), and Order VI Rule 17 will apply. The fallacy in the argument of the appellants lies in the assumption that s. 83(3) is a comprehensive enactment on the whole subject of amendment, which it clearly is not. In this view there is no scope for the application of the maxim, expression unius exclusion alterius, on which the appellants rely.[4]

Both the provisions were specifically laid out in the above case, i.e. S. 83(3) and O. VI R.17. Also, lex specialis is applicable in the above case only with respect to ‘amending the particulars’ as we had seen for lex specialis to be applicable, subject matter of both the laws should be common. Thus to the extent to which ‘amending the subject matter’ of the original petition is concerned, lex specialis is applicable otherwise the general law shall prevail i.e. Code of Civil Procedure.

  1. Both the provisions, express and implied should operate on the same subject matter. If the subject matter of both the provisions is different this rule has no application.[5]
  1. Limitation of this rule is: If the alternative provision is clearly set out then this rule is not applied. As stated above, this rule is employed to gauge the intention of the Parliament which if, is clear from the words used should be applied.

Part IV of the Motor Vehicles Act provided for obtaining ‘permit’ by the government to enter into a commercial practice with the other private players. Later Part IVA was inserted into the Motor Vehicles Act whereby through a ‘scheme’ only government could obtain the permit to ply vehicles, which could be claimed as a matter of right. To this, petitioners used the said doctrine and contested – Since the provision for scheme is clearly set out in Part IVA, it by virtue of Expressio Unius Est Exclusio Alterius excludes the ‘permit’ under Part IV of the Act. Negating this contention Court observed:

 

It is a maxim for ascertaining the intention of the legislature. Where the statutory language is plain and the meaning clear, there is no scope for applying the rule. Section 42(3) (a) of the Motor Vehicles Act, is plain in its terms. It contemplates that the Government has to apply for permits under Section 42(1) to run buses as a commercial enterprise. That being so, the maxim cannot be resorted to for ascertaining the intention of the legislature and implying a prohibition against the Government applying for permits under Chapter IV.

[1] Para 10 of Parbhani Transport v. Regional Transport

[2] Id.

[3] AIR 1957 SC 444

[4] Id. Reply to Fourth Contention on para 21 of Harish Chandra Bajpai v. Triloki Singh

[5] Id.

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Ut Res Magis Valeat Quam Pereat – Interpretation of Statutes

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This rule furthers to establish that Court shall presume the constitutionality of a provision and prefers an interpretation in favor of the competence of the legislature or other authority laying down a rule of law.[1]Linguistically, this Latin maxim suggests: That the thing may rather have effect than destroyed.

Let us see the various facets to this rule:

  1. Unless and until a provision is in flagrant violation of the Constitution, constitutionality of a provision shall be presumed. Thus, there might be a situation wherein two possible interpretation of a certain provision is possible: First, which suggests that the provision is so blatantly violating the Constitution that no effect could be given to it while secondly, if by offering a restrictive interpretation to the provision, legal validity of the provision could be preserved then a restrictive interpretation should be offered to the provision. In Mark Netto v. State of Kerela[2], the appellant was the manager of the School who on assertion by the Christian Community admitted girls to a boys’ school. When this matter was taken up with the district administration then they denied the admissions claiming refuge under Rule 12(3) of Chapter VI of the Kerala Education Rules, 1959. The rule provided:

 

Girls may be admitted into Secondary Schools for boys in areas and in towns where there are no Girls’ Schools and in such cases adequate arrangements should be made for the necessary convenience. The admissions will be subject to general permission of the Director in particular Boys’ School which will be specified by him.

Wider application of the aforesaid provision would have led the inclusion of minorities within the said rule which would have led the above rule nugatory as it would have been in violation of rights conferred upon minorities under Article 30 of the Constitution. Moving under the shadow of Ut Res Magis Valeat Quam Pereat, if by offering a restrictive interpretation to Rule 12(3) of the Education Rules, the said rule could be saved from hitting the vires of Article 30 then by all the means restrictive interpretation should be given to it. That is exactly what Supreme Court did in this case; and observed:

In that view of the matter the Rule in question in its wide amplitude sanctioning the with-holding of permission for admission of girl students in the boy’s minority school is violative of Article 30. If so widely interpreted it crosses the barrier of regulatory measures and comes in the region of interference with the administration of the institution, a right which is guaranteed to the minority under Article 30. The Rule, therefore, must be interpreted narrowly and is held to be inapplicable to a minority educational institution in a situation of the kind with which we are concerned in this case. We do not think it necessary or advisable to strike down the Rule as a whole but do restrict its operation and make it inapplicable to a minority educational institution in a situation like the one which arose in this case.[3]

Thus, while resorting to a narrow interpretation the above set of facts skipped the operation of Rule 12(3) of the Kerala Education Rules and girls were allowed to be admitted in the school run for boys by Diocese.

  1. While interpreting any provision/law if there are two interpretations possible: one which is intra vires while another which is ultra vires, then former interpretations shall always prevail over the latter. See Corporation of Calcutta v. Liberty Cinemas AIR 1965 SC 1107.
  2. While presuming the constitutionality of any provision, unnecessary extension should not be given to the words of the provision. Since, this rule has been established to gauge intention of the legislature when it couldn’t be gauged from the words which are employed by it, therefore reading this aspect of this rule essentially furthers a claim for ‘textualist’ interpretation or could also be viewed as imposing a rider on the ‘contextual’ interpretation. In Dhoom Singh v. Prakash Chandra Sethi[4], an election petition was filed by Mr. C against Mr. A, who won the elections of Legislative Assembly from Ujjain North Assembly Constituency. Mr. A raised an objection that the election petition save the annexures weren’t signed by the petitioner i.e. Mr. C, therefore the petition fails to comply with the mandate set out in S. 81(3) of the Representation of People’s Act and hence is liable to be dismissed under S. 86(1) of the same Act. One Mr. B who later made an intervening application while the hearing of the petition claiming that Mr. C has colluded with Mr. A and therefore to he should be allowed to be impleaded in the proceedings. High Court dismissed his claims stating that the provision only speaks of ‘withdrawal or abatement’ but doesn’t provide for ‘intervention’ by a third party. Sensing defect in the scheme of the Statute, apex court held: 

The argument that in such a situation ‘the intention of the legislature that a petition should not fail by reason of any bargain or collusion between the election petitioner and the successful candidate would be frustrated’ was repelled on the ground ‘there is undoubtedly a lacuna in the Act, because it makes provision when an election petitioner is allowed to withdraw, but makes no such provision if he just refuses to prosecute.[5]

Refusing to apply golden rule, Court further observed:

But that reason would not, as pointed out by Grover J. in Jugal Kishore’s Case AIR 1956 Punj 152 be a sufficient reason to construe the provisions beyond the purview of their language. This is another type of contingency, where if thought necessary: It is for the Legislature to intervene. The Court is helpless. [6]

Reflecting transition – hitting the culmination of textual interpretation and marking the inception of golden, best befits this rule. I think the prominent question in this case was: Could the new words which are not specified in the Statute be read into the Statute in the light of furthering object and purpose of the Statute? This reminds of the discussion wherein while discussing contextual interpretation, two possible methods were deciphered from the existing literature: First, where the text takes a primacy over the purpose and the object while the second, where the object and purpose takes a primacy over the text.[7]What Judges did while pushing the vague doctrine of ‘Independence of Judiciary’ under the guise of ‘Rule of Law’ was giving a primacy to the values over the text while what they did here in the instant case was to give primacy to text over the object and purpose of the Statute, which appears to be a more warranted method of interpretation. It would have been a different issue altogether if, ‘withdrawal or abatement’ may have entailed while its interpretation to encompass ‘intervention’ which is highly unlikely. Thus, while presuming the legality of any provision/law, no effect be given to something which is not clearly set out in the provision/law itself.

 [1] Vepa Sarathi on page 89

[2] (1979) 1 SCC 23

[3] Id at para 7

[4] AIR 1975 SC1012

[5] Id at para 12

[6] Id at para 12

[7] Judges Appointment Case – Supreme Court Advocates on Record Association v. Union of India

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Nemo Potent Mutare Consillium Suum In Alterius Injuriam

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Nemo Potent Mutare Consillium Suum In Alterius Injuriam (No one is allowed to change his mind to the injury of others)

Unless there are words in the statute sufficient to show the intentions of the Legislature to affect existing rights, it is ‘deemed to be prospective only.

(Nova constitutio futuris forman imponero debet non praeteritis)

Rule I: Vested Rights are not taken away without express words or necessary implication or without compensation

The legislature should not change its mind to the injury of others. As a corollary of it, laws should be applied prospectively and not retrospectively. This should be followed as a general principle unless clearly set out in the Statute that its provisions shall be applicable retrospectively.[1]

In Krishna Ayyar v. Sundaraswami Iyer[2], there was no statutory right to appeal arising from an order under S. 66 of the Income Tax Act of 1922. Later, S. 66A was inserted providing for a right to appeal contingent on a certificate of fitness to be granted by the High Court. Appeal could be preferred before His Majesty in Council. The question which arose in this case was: Whether an appeal could be preferred from an order under S. 66 prior to the commencement of S. 66A?

To this question, it was observed by the Court:

“……provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which, if applied retrospectively, would deprive of their existing finality of orders, which, when the statute came into force, were final, are provisions which touch orders existing rights. Accordingly, if the section now in question is to apply to orders final at the date when it came into force, it must be clearly provided. Their Lordships cannot find in the section even an indication to that effect. In their Lordships’ opinion, therefore, the petitions in this case have no statutory right of appeal to His Majesty in Council.”

Rule II: Statutes dealing with merely matters of procedure are presumed to be retrospective unless such a construction is textually inadmissible.[3]

[1] Vepa Sarathi on page 238

[2] AIR 1922 PC 257

[3] G.P. Singh: Principles of Statutory Interpretation, 11th Edition, p. 498

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Contemporania Expositio Est Optima Et Fortissima Lege

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The basis of this rule is notorious practice and the failure of the legislature to correct the practice by amendment.

Following rules could be gauged while perusing discussion arising in the case of Senior Electric Inspector v. Laxmi Narayan[1]:

  1. In the case of ancient statute they are to be interpreted as they would have been when they were passed.
  2. As a limitation on the applicability of this principle, if the words of the statute is capable of comprehending new facts and situations without abrogating the intention with which the provision was enacted, such interpretation should be allowed to sail through.

In Senior Electric Inspector v. Laxmi Narayan, Mr. Laxmi Narayan Chopra – the first respondent, carries on business as motor coach builder under the name of ‘Chopra Motors’ having his factory in the suburb of Calcutta. In his factory a number of ‘Universal Electric Motors’ are operated for the purpose of working electric drills. Within a distance of 100 feet from his factory, there is a Post and Telegraph Wireless Station, which besides functioning as a coast station communicating with ships at sea, handles public messages in large volume from Darjeeling, Shillong, Gauhati, Agartala and New Delhi. In 1953, sever electrical interference was observed in the said station and experts attributed the same to local induction from the first respondent’s factory. A notice was served by the Senior Electric Inspector under S. 34(2) (b) of the Electricity Act of 1910 asking the first respondent to show cause as to why an action under the said provision be not taken against him.

  1. 34(2): If at any time it is established to the satisfaction of the appropriate government-

(b) that any electric supply lines or other works for the generation transmission, supply or use of energy are attended with danger to the public safety or to human life injuriously affect any telegraph line,

That appropriate Government may, by order in writing, specify the matter complained of and require the owner or user of such electric supply lines or other works to remedy it in such manner as shall be specified in the order, and may also in like manner forbid the use of, and the supply of energy to, any electric supply line or works until the order is complied with or for such time as is specified in the order.

  1. 3(1) (4) of the Telegraph Act of 1885 reads:

‘telegraph line’ means a wire or wires used for the purpose of a telegraph with any casin, coating, tube or pipe enclosing the same and any appliances and apparatus connected therewith for the purpose of fixing or insulating the same.

Issue which was raised in this case was: Whether telegraph line would also encompass electric lines used for the purpose of wireless telegraph within it or not? But for it to qualify under S. 34(2)(b), S. 3(1)(4) lays down that ‘telegraph line’ means a wire or wires used for the purpose of telegraph and there in wireless telegraph lines wires aren’t used. In the telegraph post, electric lines were used which were wireless and for it to qualify as a ‘telegraph line’ under the Telegraph Act of 1885, existence of wire or wires appears inevitable. Appellant contested that the ‘electric lines’ are wide enough to include ‘telegraph line’ without wires as the contemporary developments in science couldn’t have been envisaged by the legislature when the Telegraph Act was enacted in 1885. But a wider interpretation is permissible as it isn’t contrary to the intention of the legislature while enacting the Telegraph Act. Respondents argued by relying on the judgment of the division bench of the High Court that the rule of contemporanea expositio est optima et fortissimo lege should be applicable which means that contemporary exposition is best and strongest in law.

Court also quoted Sutherland’s Statutory Interpretation, and observed:

‘As a general rule it may be stated that the legislative intent should be determined as of the time the legislation goes into effect. But surrounding circumstances and situations occurring after the enactment of the statute may be of great or even conclusive assistance in determining a meaning which was intended to be conveyed. Legislative standards are generally couched in terms which have considerable breadth. Therefore a statute may be interpreted to include circumstance or situations which were unknown or did not exist at the time of the enactment of the statute.’

Two limitations which appear while applying the digressive principle to the Contemporanea Expositio are:

  1. If the facts and situation couldn’t be couched in the words of the statute.[2]
  2. If the intent of the Legislature appear otherwise.[3]

To the question that this rule is applied only in the ancient statutes and not on the modern statute, court rejected this principle and observed:[4]

The legal position may be summarized thus: Thus maxim contemporanea exposition as laid down by Coke was applied to construing ancient statutes but not to interpreting Acts which are comparatively modern. There is a good reason for this change in the mode of interpretation. The fundamental rule of construction is the same whether the Court is asked to construe a provision of an ancient statute or that of a modern one, namely, what is the expressed intention of the Legislature. It is perhaps difficult to attribute to a legislative body functioning in astatic society that its intention was couched in terms of considerable breadth so as to take within its sweep the future developments comprehended by the phraseology used. It is more reasonable to confine its intention only to the circumstances obtaining at the time the law was made. But in a modern progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made, for a modern legislature making laws to govern a society which is fast moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social economic political and scientific and other fields of human activity. Indeed, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable comprehending them. We cannot, therefore, agree with the learned judges of the High Court that the maxim contemporanea expositio could be invoked in construing the word ‘telegraph line’ in the Act.

 Reddendo Singula Singulis:

G.P. Singh states that this rule has been borrowed from an Irish case, and is stated in the following words:

Where there are general words of description, following an enumeration of particular things such general words are to be construed distributively, reddendo singular singulis; and if the general words will apply to some things and not to others, the general words are to be applied to those things to which they will, and not to those to which they will not apply; that rule is beyond all controversy.[5]

Local Government Act, 1933 provided for a similar example under its S. 59(1) which read:

A person shall be disqualified for being elected or being a member of a local authority if he has within five years before the day of election or since his election been convicted of any offence and ordered to be imprisoned for a period of not less than three months without the option of fine.

Now try applying the principle of reddendo singula singulis in this?

[1] AIR 1962 SC 159

[2]In State of Madras v. Gannon Dunkerley and Co. [1959] 1 SCR 379 it was observed:

The principle of these decisions is that when, after the enactment of a legislation, new facts and circumstances arise which could not have been in its contemplation, the statutory provisions could properly be applied to them if the words thereof are in a broad sense capable of containing them.

[3] Para 22 of the Judgment

[4] Para 22 of the Judgment

[5] M’Neill v. Crommelin, (1858) 9 Ir CLR 61

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Effect of Repeal – Interpretation of Statutes

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Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- Revive anything not in force or existing at the time at which the repeal takes effect, or Affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder, or Affect any right, privilege, obligation or liability acquired, accrued or incurrent under any enactment so repealed, or affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed, or affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.

Unless a different intention is expressed, the repeal will not 1) Revive a previous enactment.
2) It will not affect, right privilege, obligation or liability acquired under the repealed enactment.
3) Affect any investigation, legal proceeding or remedy.

It does not affect any penalty forfeiture and punishment

Shambhudayal v. UOI – Prevention of food adulteration act 19 Section 8 and Section 9 dealt with the appointment of officials are substituted. Whether the inspector who has been appointed under Section 8 would be still the inspector? Under the original act. Yes.

Govt. Of India v. Indian tobacco Association – Tobacco Farming in AP- 1997 a notification is issued for monitory incentive in supplying tobacco. There is no Guntoor Area in the notification. In November 1997 a fresh notification substitutes the old notification and includes Guntoor Area. They wanted their incentive to be calculated from April and not from November. So it was not allowed.

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Atlas Cycles industries v. State of Haryana – Interpretation of Statutes

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The muncipality sought to impose octroi duty on the appelants in respect of raw materials imported by them into their factory for the manufacture of cycles. The octroi was levied by a notification under sec 62(10). The appellants justified the levy under Section 5(4) which provided”

“ When any local area has been included in a municipality… all rules, bye-laws, orders, directions and powers are made, or conferred under this Act and in force throughout the municipality at the time, shall apply to such area.”

It was held that the municipality was not competent to collect the octroi because Section 5(4) did not mention “notification”. It was observed that the word ‘notification’ cannot be held to be synonymous with rules, bye-laws, orders, directions and powers.

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State of Punjab v. Jalandhar Vegetables – Interpretation of Statutes

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The court held that “In considering a taxing Act, the court is not justified in straining the language in order to hold a subject liable to tax.” In this case, the East Punjab Sales Tax Act, 1948 as it stood in 1953 did not provide any machinery for assessing a firm, which has been dissolved. Though the firm, which the Act treated as a separate entity, existed during the entire period for which tax was to be levied and at the time when assessment proceeding commenced, it escaped liability on its dissolution before completion of assessment for want of machinery in the Act to complete the assessment in such a contingency. It was held to be a case of lacuna which cannot be cured by interpretation.

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Mohammad Shabir v. State of Maharashtra – Interpretation of Statutes

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Where section 27 of the Drugs and Cosmetics Act, 1940 came up for construction. By this section whoever ‘manufactures for sale, sells, stocks or exhibits for sale or distributes’ a drug without a licence, is liable for punishment. In holding that mere stocking is not an offence within the section, the Supreme Court pointed out the presence of comma after ‘manufactures for sale’ and ‘sells’ and absence of any comma after ‘stocks’.It was, therefore, held that only stocking for sale could amount to an offence and not mere stocking.

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Bengal Immunity Case – Interpretation of Statutes

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Marginal notes appended to Articles to the Constitution have been held to constitute part of the Constitution as passed by the Constituent Assembly and therefore they have been made use of in construing the Articles of Constitution.
For instance- Articles 286 of the Constitution of India- Restriction as to the imposition of tax on sale or purchase of goods, marginal notes used in order to furnish a prima facie clue as to the meaning and purpose of the Article.

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