Category: Law School Notes

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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:

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.

[1] Vepa Sarathi on page 89

[2] (1979) 1 SCC 23

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The expression ” religious institutions of a public character ” occurring in Art. 25(2) (b) of the Constitution contemplates not merely temples dedicated to the public as a whole but also those founded for the benefit of sections thereof and includes denominational temples as well. While Art. 25(1) deals with the rights of individuals and Art. 26(b) with those of religious denominations, Art. 25(2) covers a much wider ground and controls both. Article 26(b) must, therefore, be read subject to Art. 25(2) (b) of theConstitution. Although the right to enter a temple for purposes of worship protected by Art. 25(2) (b) must be construed liberally in favour of the public, that does not mean that that right is absolute and unlimited in character. It must necessarily be subject to such limitation or regulation as arises in the process of harmonising it with the right protected by Art. 26(b).

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The expression engaged in any industry specified in Sch. I’ means primarily or mainly engaged in any industry as contrasted with incidentally and in that sense minor or subsidiary activities for the purpose of feeding the main industry would not determine the character of the industry with reference to the Schedule. When two constructions are possible each of which leads to some anomalies that which is on the whole consistent with common sense and the current understanding of the expression used should be preferred. The respondent in the second appeal was mainly engaged in an industry not included in the Schedule but was engaged incidentally and only for the feeding that industry in manufacturing containers and hence did not come within the Act.

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‘Shared Household’ of Protection of Women from Domestic Violence Act. If the interpretation canvassed by the learned counsel for the respondent is accepted, all these houses of the husband’s relatives will be shared households and the wife can well insist in living in the all these houses of her husband’s relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd. It is well settled that any interpretation which leads to absurdity should not be accepted.

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The provisions of law show that the qualifications (graduation, Article 171) of the electors as well as of those to be elected were matters to which the attention of the law makers, both in the Constituent Assembly and in Parliament, was specifically directed. Hence, the omission must have been deliberate.

It is true that a constitution should be interpreted in a broad and generous spirit, but the rule of “plain meaning” or “literal” interpretation could not altogether be abandoned. The object of interpretation is to discover the intention of the law makers, and this object can obviously be best achieved by first looking at the language used in the relevant provisions. A logical corollary of the rule of literal interpretation is that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made; and an application of this rule necessarily involves that addition to, or modification of, words used in statutory provisions is not generally permissible. Courts may depart from this rule only to avoid a patent absurdity.

It could be presumed that the omission of the qualification that the representative of graduate should also be a graduate was deliberate. By presuming such an intention of the law makers, no absurdity results.

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Under the Official Secrets Act 1920 it was an offence to obstruct a member of the armed forces ‘in the vicinity’ of a prohibited palace. The defendant was actually in the prohibited place, rather than ‘in the vicinity’ of it at the time of obstruction. The court applied the golden rule. It would be absurd for a person to be liable if they were near to a prohibited place and not if they were actually in it.

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The defendant was charged with the offence of bigamy under s.57 of the Offences Against the Person Act 1861. The statute states ‘whosoever being married shall marry any other person during the lifetime of the former husband or wife is guilty of an offence’. Under a literal interpretation of this section the offence would be impossible to commit since civil law will not recognise a second marriage any attempt to marry in such circumstances would not be recognised as a valid marriage. The court applied the golden rule and held that the word ‘marry’ should be interpreted as ‘to go through a marriage ceremony’.

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The Royal College of Nursing brought an action challenging the legality of the involvement of nurses in carrying out abortions. The Offences Against the Person Act 1861 makes it an offence for any person to carry out an abortion. It was legal for nurses to carry out such abortions. The Act was aimed at doing away with back street abortions where no medical care was available. The actions of the nurses were therefore outside the mischief of the Act of 1861 and within the contemplate defence in the 1967 Act.

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A man was charged with an offence under s.1(1) of the Street Offences Act 1959 which makes it an offence for a ‘common prostitute to loiter or solicit in a public street or public place for the purposes of prostitution’. The court held that the Act did only apply to females. The word prostitute was ambiguous and they applied the mischief rule. The Street Offences Act was introduced as a result of the work of the Wolfenden Report into homosexuality and prostitution. The Report only referred to female prostitution and did not mention male prostitutes. The QBD therefore held the mischief the Act was aimed at was controlling the behaviour of only female prostitutes.

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The definition of the word “agricultural produce” in the Act includes all produce whether agricultural, horticultural, animal husbandry or otherwise as specified in the Schedule. The legislative power to add or include and define a word even artificially, apart, the definition which is not exhaustive but inclusive, neither excludes any item produced in mill or factories nor it confines its width to produce from soil. Nor switch over from indigenous method of producing anything to scientific or mechanical method changes its character. To say, therefore, that sugar being produced in mill or factories could not be deemed to be agricultural produce is both against the statutory language and judicial interpretation of similar provisions of the Act in statutes of other States.

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