23 INTERPRETATION OF STATUTES

Vol LI] 755

23

INTERPRETATION OF STATUTES

Anurag Deep

Sushil K Verma

I INTRODUCTION

INTENTION OF legislative command is an exclusive function of judiciary The task is an arduous one Very often there are competing claims as to the meaning of words used in the statutory provisions To find out the most appropriate meaning is full of difficulties Dias has identified five difficulties in interpretative enterprise First is to ascertain the intention of parliament which is no less elusive than the search for the ratio decidendi of a case Second vAiose intention is it that is relevant It cannot be the intention of recommendatory body like law commission nor of the draftsman nor even legislatores for a good number may not be present when it was voted or may have voted in obedience of a mandatory whip Ascertaining the intention of legislature therefore boils down to finding the meaning of words used-the intent of statute rather than that of Parliamenf Third difficulty arises from the fact that meaning and intention are ambiguous words Does the present case fall within what the legislature meant to refer to by the wording it has used (reference) or does it fall within the purpose which is meant to accomplish(purpose) Dias designate these two methods as interpretation and construction but the activities of the judiciary cannot be separated in this way for the distinction between interpretation and construction is not clear-cut Where language is equivocal the decision whether the wording was meant to refer to the situation before the court which no one may have contemplated at the time of passing of the statute inevitably imports a measure of construction In such cases it is difficult to see where interpretation leaves off and construction begins To ascertain purpose means to permit a court venture outside the enactment for available evidence as to the policy behind it The practical question is how far a court is expected to go in search of such evidence for without some limit the inquiry might be pursued to unreasonable lengths Fourth challenge is that the statutes control the future by using broad terms of classes and categories Casus

omissi is inevitable as human error is unavoidable which mandates a measure of

Associate Professor Indian Law Institute New Delhi

Professor (Retired) Faculty of Law Banaras Hindu University

756 Annual Survey of Indian Law [2015

discretion in every decision of a case Fifth every word can have three meaning (i) of user (ii) of receiver and (iii) usual meaning Which meaning would be suitable Judges in India face similar challenges

The exclusive and final authority of giving meaning to a word or provision of law is an extraordinary power in the hands of judiciary Therefore they ought to be very careful They need to follow certain principles and rules though it is not essential that they should stick to a particular rule because meeting the ends of justice is ultimate objective Like previous years the survey of this year also indicate that the judges have used all prevalent rules of interpretation which is natural because words are not passive agents A thoughtful examination of survey on interpretation has to face two limitations One the case law on interpretation is very wide as it is not limited to constitutional or criminal or civil or property law etc Two other surveys in this work do cover various case laws under different heads Care has been taken that this survey limits itself to interpretation issues only though it is not always possible The survey is limited to the more important decisions of the Supreme Court only which could be conveniently discussed under various heads and subheads

II BASIC PRINCIPLES

Judicial decisions follow certain well recognised rules of statutory interpretation which may be called as basic principles They deal with presumptions meaning of mandatory and directory provisions liberal and strict interpretation penal and remedial statutes etc Separation of power respect for law making bodies rule of convenience etc expects the courts to begin with certain presumptions which the courts find as an uncompromising command of interpretation

Presumptions

Presumption of constitutionality

Presumption of constitutionality of a legal provision is well established The courts make it applicable through various techniques Reading into and reading down is one of the tool used in the interpretative process to save a provision from being turned down as violative of fundamental rights etc reading into means certain words are not written in the provision but the court interprets as if it is present Reading down means certain word is present in the provision but the court will not read those words to protect the provision from being declared as unconstitutional

Read down Shreya Singhal In the case oi Shreya Singhal y Union oflndia^ various provisions^ of Information

Technology Act 2000 were challenged Though the case is known for declaration of

AIR 2015SC1523A division bench of J Chelameswar Rohinton Fali Nariman JJ unanimously decided that 66A of Information Technology Act 2000 is unconstitutional (Decided on Mar 24 2015)

Information Technology Act 2000 s 66A s 69A and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules 2009 Information Technology (Intermediary Guidelines) Rules 2011 Kerala Police Act s 79 and s 118(d) was

Vol LI] Interpretation of Statutes 757

66A as unconstitutional section 79 and rule 3 deserve special attention The court

used the interpretative tool of read down so that s 79(3) (b) of Information Technology

Act 2000 and Rule 3(b) of corresponding Rules 2011 could be protected from being

declared as unconstitutional Section 79(3)(b) obliged intermediaries to remove certain

contents which is objectionable Suppose Al says so and so content is objectionable

because it is being used to commit the unlawful act Now intermediary had to act on

this information which Al provides Al could be someone who has an account on

challenged S 118(d) of the Kerala Police Act 66Awas declared unconstitutional 69A and rules 2009 was declared constitutional while s 79 and rules 2011 were read down to keep them constitutional Information Technology Act 2008 s79 reads Exemption from liability of intermediary in certain cases-

(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3) an intermediary shall not be liable for any third party information data or communication link made available or hosted by him

(3) The provisions of sub-section (1) shall not apply if-

(b) upon receiving actual knowledge or on being notified by the appropriate Government or its agency that any information data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner Explanation-For the purposes of this section the expression third party information means any information dealt with by an intermediary in his capacity as an intermediary

Information Technology (Intermediary Guidelines) Rules 2011

Rule 3 Due diligence to be observed by intermediary-The intermediary shall observe following due diligence while discharging his duties namely -

(2) Such rules and regulations terms and conditions or user agreement shall inform the users of computer resource not to host display upload modify publish transmit update or share any information that-

(a) belongs to another person and to which the user does not have any right to

(b) is grossly harmful harassing blasphemous defamatory obscene pornographic paedophilic libellous invasive of anothers privacy hateful or racially ethnically objectionable disparaging relating or encouraging money laundering or gambling or otherwise unlawful in any manner whatever

(c) harm minors in any way

(d) infringes any patent trademark copyright or other proprietary rights

(e) violates any law for the time being in force

(f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature

(g) impersonate another person

(h) contains software viruses or any other computer code files or programs designed to interrupt destroy or limit the functionality of any computer resource

(i) threatens the unity integrity defence security or sovereignty of India friendly relations with foreign states or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation


Facebook twitter Google etc Al could be someone who may not have account but a person who browses internet^

The court rightly found the provision as very wide and limited it by reading down It held as under

Section 79(3)(b) has to be read down to mean that the intermediary

upon receiving actual knowledge that a court order has been passed

asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material [Emphasis Added]

This is for the reason that otherwise it would be very difficult for intermediaries like Google Facebook etc to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not We have been informed that in other countries worldwide this view has gained acceptance Argentina being in the forefront

Regarding Rule 3(4) the court similarly held

Rule 3(4) needs to be read down in the same manner as Section

79(3) (b) The knowledge spoken of in the said sub-rule must only be through the medium of a court order Subject to this the Information Technology (Intermediaries Guidelines) Rules 2011 are valid [Emphasis Added]

Anyone to only someone

The court limited the scope of applicant from anyone to only someone who could get a court order Now if Al has certain objections she could at first approach

5 Total number of Internet subscribers at the end of Dec 2015 is 33166 million (33 crore) http wwwtraigovin Write Re adData PressRealeaseDocumentPressReleaseNo67pdf Non government sources estimate that in world the uses are 4000 million http wwwintemetlivestatscomintemet-users 500 Million Tweets sent each day More than 4 Million Hours of content uploaded to Youtube every day 36 billion Instagram likes each day 43 Billion Facebook messages posted daily 575 billion Facebook likes every day 40 Million Tweets shared each day

6 Billion daily Google Search takes place httpswwwgwavacomblogintemet-data-created-daily

6 Supra note 1 para 117

7 Supra note 3 79 (3) The provisions of sub-section (1) shall not apply if-

(b) upon receiving actual knowledge or on being notified by the appropriate Government or its agency that any information data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner

Explanation-For the purposes of this section the expression third party information means any information dealt with by an intermediary in his capacity as an intermediary]


the court for an injunction If court finds merit in the objections it could issue order Government and its agency continue to enjoy authority to notify service providers The idea of a court order seems to be inspired by a similar provision in section 52(l)(c) of the Copyright Act 1957 This section also obliges a service provider if an owner of a copy right material alleges that his material is available on website without his permission In that case the intermediary is obliged to take down the content for 21 days Now the copy right owner has to get a court order for his claim within 21 days If the copy right owner cannot bring a court order the intermediary is exempted from liability This provision was amended and incorporated through 2012 amendment Unlike 52 (1) (c) where informant could be very limited group of owners of copy right in Section 79(3)(b) anyone could be informant Secondly unlike copy right the informant has no responsibility to bring a court order The Supreme Court has noticed the discrepancy and therefore read down the provision in 79(3)(b) to incorporate a court order The judgement dilutes section 79 (3)(b) so that vested interests cannot put pressure on service providers Now post Shreya Singhal a court or government order to take down any disputed comment available online shall be required

The provision of cyber terrorism in section 66F of Information Technology Act 2000 also finds a reference in Shreya SwgAajudgement that unlike 66A which is too vague Section 66F again is a narrowly drawn section which inflicts punishment which may extend to imprisonment for life for persons who threaten the unity integrity security or sovereignty of India

Read upread down other interpretative purpose

There is an impression that read into or read down is used to save a provision from being declared as unconstitutional This is correct statement of a principle of constitution but is not limited to it Read into or read down may be used for interpretation other than non constitutional purpose Sher Singh^^ uses the tool of read

8 S 52 - Certain acts not to be infringement of copyright [the Copyright (Amendment) Act 2012] (i) The following acts shall not constitute an infringement of copyright namely (c) transient or incidental storage of a work or performance for the purpose of providing electronic links access or integration where such links access or integration has not been expressly prohibited by the right holder unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy Provided that if the person responsible for the storage of the copy has received a written complaint from the owner of copyright in the work complaining that such transient or incidental storage is an infringement such person responsible for the storage shall refrain from facilitating such access for a period of twenty-one days or till he receives an order from the competent court refraining from facilitating access and in case no such order is received before the expiry of such period of twenty-one days he may continue to provide the facility of such access

9 Internet and Mobile Association of India v UOI [WP (C) No 7582014]

10 ^vaiafeteaf httpbusinesswireindiacomnewsnews-detailsonline-companies-body-convinces-supreme-court-dilute-controversial-section-793b-it-act-protect-online-media-from-draconian-hability-clause43225 (last visited on Aug 10 2016)

11 Id at para 71 Judisnicin

12 2015 (1) SCALE 250


up and read down even if it is not a case of constitutional validity A statement from the case can be useful for reference

Section 304B the proper manner of interpreting the Section is that shown has to be read up to mean prove and the word deemed

has to be read down to mean presumed [Emphasis added]

In this case the constitutional validity of 304B (or any provision) was not in question but meaning of certain words in the section was discussed While it is understandable why shown should be read up to prove it is not understandable how deemed to be read down to mean presumed is helping It does indicate that even if the validity of a provision is not in question the tools of read into or read down may be used

Validity of a law

Courts are the final and exclusive interpreter of law In the course of interpretation they declare whether a law is valid or not On what grounds a law can be declared invalid This question is still debatable because the Supreme Court even after 67 years of the Constitution is not sure on grounds of invalidity Traditionally there are two grounds-competency of authority and conformity with enactment Whether or not the authority has power to make law or take action and whether or not the law made or action taken is in conformity with an enactment An administrative action can be challenged on three grounds viz (i) unreasonableness which can more appropriately be called irrationality (ii) illegality and (iii) procedural impropriety In India with written constitution the validity of an enactment can be challenged on grounds of competency violation of fundamental rights violation of other enforceable provisions of the constitution (like art 301-308) Can arbitrariness be a ground to challenge the validity of an enactment Can basic structure theory be a ground for validity of an enactment Can inconsistency from objective of enactment be a ground of invalidity Can public policy be a ground to decide validity of a law These questions have invited debates in legal circle and the opinion is divided

In the case of Board of Control for Cricket in India v Cricket Association of

Bihar the court had to test the validity of IPL Operational Rule 624 as amended^ The court held that validity of a law or an amendment can be tested on any of the three grounds-

(i) whether the amendment is made by the authority competent to do so

13 Council of Civil Services Union v Minister for Civil Services (1985 AC374)

14 (2015) 3 s e c 251 A division bench of TS Thakur J and Fakkir Mohamed Ibrahim Kalifulla J unanimously decided the case on Jan 22 2015

15 IPL Operational Rule 624 before amendment was in the following words No Administrators shall have directly or indirectly any commercial interest in the matches or events conducted by the Board After amendment words added were excluding events like IPL or Champions League Twenty 20


(ii) whether the authority competent to bring about an amendment has followed the procedure prescribed for the same and

(iii) whether the amendment falls foul of any statute or principle of law violation whereof cannot be countenanced In this case on the grounds of public policy the rule was declared illegal and void

Violation of objective clause whether a ground for challenge

In the case of Keshavlal Khemchand And Sons definition of NPA (non-performing asset) under section 2(l)(o) of the SARFESI Act 2002(amended in 2004) was in question High Court of Gujarat held the definition unconstitutional on the ground that the new amendment violates objective of the enactment In the Supreme Court Chelmeswar J questioned the logic and legality of the high court reasoning Object and reason clause are neither a part of enactment nor are voted upon by the legislature Therefore even if there is a divergence between the objects appended to the Bill and the tenor of the Act the provision cannot be a declared unconstitutional

Arbitrariness mdashwhether a test for illegaUty Rajbala

The issue of arbitrariness as a tool for determing the constitutional validity or legality of a legislative exercise or executive actionhas always posed a complex problem for judicial interpretation The Supreme Court in the case of Rajbala v State of

Haryana^^ confronted the plea to declare a piece of legislation as unconstitutional on the ground of being arbitrary The answer is not easy because law includes primary and secondary legislation both Sweeping remarks have been made by lawyers and academicians that arbitrariness is another ground under article 14 to declare a law (without making distinction between an enactment and a ruleregulationadministrative action) unconstitutional Rajbala makes a serious attempt to remove the confusion

The court discussed various cases like Subramanian Swamy v Director Central

Bureau of Investigation^^ Indian Council of Legal Aid v Bar Council of India- B

Prabhakar Rao v State of Andhra Pradesh andZ^X Nakara v Union oflndia^^

and certain observations made by Justice AC Gupta in his dissenting judgment in RK Garg v Union oflndia-^ and concluded that none of the cases is an authority for

16 In ShrilekhaVidyarthiy State of UP (1991) 1 SCC 212itwas observed that It can no longer be doubted at this point of time that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government even in contractual matters fails to satisfy the test of reasonableness it would be unconstitutional See Ramana Dayaram Shetty V The International Airport Authority of India [1979] 3 SCR 1014 and Kasturi Lai Lakshmi Reddy v Sfafe ofJammu and Kashmir [1980] 3 SCR 1338 In Col AS Sangwan v Union of India [1980] Supp SCC 559

17 2015 SCC OnLine SC 68 decided on Jan 28 2015

18 (2016) 1 SCC 463 see observations of J Chelameswar J Abhay Manohar Sapre J also delivered his brief and concurring opinion Decided on Dec 10 2015

19 (2014) 8 SCC 682

20 (1995) 1 SCC 732

21 1985 (Supp) SCC 432

22 (1983) 1 SCC 305

23 (1981) 4 SCC 675


the proposition that an enactment can be declared unconstitutional on the ground of arbitrariness The court then discussed State of Andhra Pradesh v McDowell and

Cd^^ where the issue was directly involved and held that it is clear that courts in this country do not undertake the task of declaring a piece of legislation unconstitutional on the ground that the legislation is arbitrary The ratio decidendi in Rajbala is as under

[s]ince such an exercise implies a value judgment and courts do not examine the wisdom of legislative choices unless the legislation is otherwise violative of some specific provision of the Constitution

The judge further observed

To undertake such an examination would amount to virtually importing the doctrine of substantive due process employed by the American Supreme Court at an earlier point of time while examining the constitutionality of Indian legislation As pointed out in the above extract even in United States the doctrine is currently of doubtful legitimacy This court long back in ^5 Krishna v State of Madras^

declared that the doctrine of due process has no application under the Indian Constitution

The court then concluded that for the above reasons we are of the opinion that it is not permissible for this Court to declare a statute unconstitutional on the ground that it is arbitrary

What is noticeable is that the court has used the judgements of 50s A K Gopalan

V State of Madras^ A S Krishna v State ofMadras^ and 60s Municipal Committee

Amritsar v State of Punjab^^ to interpret the contours of art 14 while post 1978 there were various discussion on due process clause The case of EP Royappa^^ is said to be first case to bring this New Doctrine of arbitrariness where PN Bhagwati J (with Krishna lyar J) made certain remarks like equality is antithetic to arbitrariness Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art 14

Rajbala does not consider these statements as useful It has not discussed Royappa though it refers minority opinion in RK Garg case as under

24 (1996) 3 s e c 709

25 AIR 1957 SC 297

26 1950 SCR 88

27 AIR 1957 SC 297

28 (1969) 1 s e c 475 para 7

29 EP Royappa v State of Tamil Nadu (1974) 4 SCC 3

30 (1981) 4 SCC 675


66 Observations by Justice Gupta inRK Garg case no doubt indicate that the doctrine propounded by this Court in EP Royappa v State of

Tamil Nadu amp andManeka Gandhi v 6wow olaquoca that arbitrariness is antithetical to the concept of equality is also relevant while examining the constitutionality of a statute but such observations are a part of the dissenting judgment and not the ratio decidendi of the judgment

Rajbala has not considered Royappa (probably) because as Nariman says Royappa was virtually no more than an aside since the ratio (or reasoning) in that case did not reflect any conscious or critical application of the new approach to article A^ Nariman agrees that Royappa arbitrariness is not law laid down He however finds that in later cases the words arbitrariness in state action(first used in Royappa) were interpreted as applying to legislation as well as executive action although Royappa was not concerned with statute law but administrative actions Ajay Hasia^ also suggests that an enactment may be considered as arbitrary

Wherever therefore there is arbitrariness in State action whether it be

of the legislature or of the executive or of authority under Article 12 Article 14 immediately springs into action and strikes down such State

action In fact the concept of reasonableness and non- arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution [Emphasis added]

The reliance oiRajbala on McDowell amp Co also seems to be doubtful because Nariman (not in context oiRajbala but in general)after referring to McDowell amp Co

states as under

But after the Constitution Bench decision of nine judges inlR Coelho s

case expressly following and approving the dictum mManeka Gandhis

case (1978) - a bench of seven judges - it appears that the view of the Supreme Court (as of now) is that Maneka Gandhi holds the field

31 (1981) 4 s e c 675 32 Fali S Nariman The State of the Nation-In the context of Indias Constitution 138-139 Hay

House India First Reprint 2013 hereinafter referred as Nariman

33 Nariman refers K Ramaswamy J in Delhi Transport Corporation case (AIR 1991 SC 1001) (bench of five judges) See also KJ Shetty J in Neelima Misra v HK Paintal AIR 1990 SC 1402-1411 and 1990(2) SCC 746 p761 (bench of two judges) However in a Constitution bench decision of nine judges inlR Coelhos case AIR 2007 SC 861 the dictum of the majority in Maneka Gandhi s case has been followed

34 AjayHasia v KhalidMujib Sehravardi (1981) 1 SCC 722 35 Ibid

36 Supra note 24 37 Nariman at 143


It would be better that the issue be decided by a higher bench so that confusion may be settled for ever

Other presumptions

Presumption play vital role not in constitutional law but in other areas of law While the constitution does not expressly acknowledges any presumptions other statutes do provide for presumptions like Indian Evidence Act 1872 Indian Penal Code 1860 etc Presumption of Innocence finds place in each survey

Presumption of innocence

In Vinod Bhandari v State ofMP^^ popularly known as Vyapam case [MP Vyavsayik Pareeksha Mandal (MP Professional Examination Board)] related to bail of an accused it is observed

12 It is well settled that at pre-conviction stage there is presumption

of innocence The object of keeping a person in custody is to ensure his availability to face the trial and to receive the sentence that may be passed The detention is not supposed to be punitive or preventive Seriousness of the allegation or the availability of material in support thereof are not the only considerations for declining bail Delay in commencement and conclusion of trial is a factor to be taken into account and the accused cannot be kept in custody for indefinite period if trial is not likely to be concluded within reasonable time

Sher Singh and Presumption of innocence Wlietlier a part of fundamental riglits

Presumption of Innocence is a time-honoured expression It has been recognised in various jurisdiction and in various human rights documents Is it a part of fundamental right in India This survey finds an interesting reference in Sher Singh

Pratapa v State ofHaryana ^^ which is as under

11 Some doubts remain on the aspect of presumption of innocence deemed culpability and burden of proof One of our Learned Brothers has in Pathan Hussain Basha v State of Andhra Pradesh^^ after

3 8 (2015) 11 s e c 502 The case was unanimously decided on Feb 4 2015 by a division bench of TS Thakur and Adarsh Kumar Goel JJ

39 W at para 11 40 Reference has been made to decisions of this Court in Kalyan Chandra Sarkar v Rajesh Ran] an

(2005) 2 s e c 42 State ofUP v Amarmani Tripathi (2005) 8 SCC 21 State of Kerala v Raneef (2011) 1 SCC 784 and Sanjay Chandra v C5(2012) 1 SCC 40

41 Anurag deep Cyber terrorism and Dilution of the Doctrine of Presumption of Innocence A Formal Victory or A Real Defeat Chotanagpur Law Journal at 83-86 (2013-2014) Ranchi

42 2015(1) SCALE 250 43 W para 11 44 (2012) 8 SCC 594


extensively extracting from the previous judgmenf^ authored by him (but without indicating so) expressed two opinions - (a) that Article 20 of the Constitution of India contains a presumption of innocence in favour of a suspect (b)

It seems the court has wrongly referred the precedents though it presented the correct statement of law because the common law presumption of innocence is imported in Indian criminal jurisprudence by various constitutional bench judgements it is not a part of fundamental rights Pathan Hussain Basha quoted from Ashok Kumar v State ofHaryana which is as under

The Court cannot ignore one of the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution of India as well as has a presumption of innocence in his favour In other words the rule of law requires a person to be innocent till proved guilty

Pathan Hussain Basha neither held nor says that Article 20 of the Constitution of India contains a presumption of innocence in favour of a suspect In Sher Singh

the court was worried that if that is correct what would be the fate of various statutory presumptions like 304B 114B etc It rightly observed that the logical consequence of both these conclusions would lead to the striking down of Section 8A of the Dowry Act Section 113B of the Evidence Act and possibly Section 304B of the IPC but neither decision does so The court further observed that

45 Ashok Kumar v State ofHaryana (2010) 12 SCC 350 (2011) 1 SCC (Cri) 266 360 See observations of Swaantra kumar and BS Chauhan 23 The Court cannot ignore one of the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution of India as well as has a presumption of innocence in his favour In other words the rule of law requires a person to be innocent till proved guilty The concept of deeming fiction is hardly applicable to the criminal jurisprudence In contradistinction to this aspect the legislature has applied the concept of deeming fiction to the provisions of Section 304-B Where other ingredients of Section 304-B are satisfied in that event the husband or all relatives shall be deemed to have caused her death In other words the offence shall be deemed to have been committed by fiction of law Once the prosecution proves its case with regard to the basic ingredients of Section 304-B the Court will presume by deemed fiction of law that the husband or the relatives complained of has caused her death Such a presumption can be drawn by the Court keeping in view the evidence produced by the prosecution in support of the substantive charge under Section 304-B of the Code

46 (2010) 12 SCC 350 (2011) 1 SCC (Cri) 266 at 360 See observations of Swaantra kumar and BS Chauhan JJ

47 Id para 23

48 Dowry Prohibition Act 1961 8A reads Burden of proof in certain casesmdashWhere any person is prosecuted for taking or abetting the taking of any dowry under section 3 or the demanding of dowry under section 4 the burden of proving that he had not committed an offence under these sections shall be on him

49 Supra note 42


Even though there may not be any Constitutional protection to the concept of presumption of innocence this is so deeply ingrained in all Common Law legal systems so as to render it ineradicable even in India such that the departure or deviation from this presumption demands statutory sanction

While discussing a case under 304B the court illustrated that presumption of innocence may be diluted under three situations by statute death occurs in a home where only the other spouse and last seen theory The court observed

The inroad into or dilution of the presumption of innocence of an accused has even de hors statutory sanction been recognised by Courts in those cases where death occurs in a home where only the other spouse is present as also where an individual is last seen with the deceased

This part of observation is agreeable as it is correct statement of law

Shown prove deem and presume

Sher Singh is probably one of the a few cases which deliberates on the meaning and scope of shown prove deem and presume It observes as under^

17 Keeping in perspective that Parliament has employed the amorphous pronounnoun i f (which we think should be construed as an allusionto the prosecution) followed by the word shown in Section 304B the proper manner of interpreting the Section is that shown has to be read up to mean prove and the word deemed has to be read down to mean presumed

Following finding oi Sher Singh is perplexing regarding 304B

Once the presence of these concomitants are estabUshed or shown or

proved by the prosecution even by preponderance of possibihty the initial presumption of innocence is replaced by an assumption of guilt of the accused thereupon transferring the heavy burden of proof upon

him and requiring him to produce evidence dislodging his guilt beyond

reasonable doubt [Emphasis Added]

This observation of Sher Singh has been approved by three judges bench in the case oi Jivendra Kumar v Jaidrath Singh^^ The judgement Sher Singh gives a U tern in the traditional jurisprudence which goes against accused It would be harsh to

50 Id para 17 51 Ibid

52 Also Rajinder Singh V State of Punjab (2015)6 SCC477 Jivendra Kumar case was decided on Feb 26 2015 It was a full bench judgment of RF Nariman J TS Thakur and PrafuUa C Pant JJ The judgment was delivered by Nariman J


expect the accused proves hisher case beyond reasonable doubts when the elements of crime has already been reduced to conduct and circumstances element and no mental element is required to be proved by prosecution As Sher Singh Pratapa is approved by various judgements soon this precedent will get the status oi stare decisis

and make the life of accused more miserable in the light of fact that female related laws are alleged to be misused Deliberate use of word shown is understandable but the mandate of beyond reasonable doubts for accused is not digestible

Mandatory versus Directory

The lawmakers deliberately use words like shall must may etc to convey their objective Indeed they are directions to executives how to implement the law and are also guiding factors to be considered by judiciary Therefore whether a provision is non optional or optional is generally decided by the words used in the provision General understanding is that shall makes the provision mandatory while may makes is directory This complexities of distinction between mandatory and directory provisions have been a perennial topic of intellectual debate

DK Basu case

DKBasu cases have helped in development of laws regarding custodial justice in last 20 years Recent addition is Shri Dilip K Basu v State of West Bengal where various directions have been made by the Supreme Court For the purpose of interpretation the discussion on section 21 of the Protection of Human Rights Act 1993 is significant because of its reading may as shall One of the issue before the court was whether the Supreme Court can make mandatory directions of setting-up of State Human Rights Commissions in the States of Delhi Arunachal Pradesh Mizoram Meghalaya Tripura andNagaland Section 21 of the Protection of Human Rights Act 1993 uses words A state government mcty constitute a body to be known as the (Name of the State) human rights commission Some of the defaulting states argued discretionary versus mandatory theory as under

Therefore the establishment of a Commission is not mandatory in terms clearly suggests that the State Government may or may not choose to constitute such a body In the absence of any mandatory requirement

under the Act constitution of a State Human Rights Commission cannot

it was urged be ordered by this Court in the present proceedings [Emphasis added]

After discussing Objects and Reasons of the Protection of Human Rights Act 1993 the court admitted that it is true that a plain reading of the provisions may give the impression that the setting-up of a State Human Rights Commission rests in the discretion of the State Government But a closer and more careful analysis of the provisions contained in the Act dispel that impression

53 (2015) 8 s e c 744 Hereinafter refened an DK Basu

54 Id para 6


May for state and shall for parliament intention

The court analysed relevant provision ie section 21 and observed ^

9 A plain reading of the above would show that the Parliament has used the word may in sub-Section (1) while providing for the setting-up of a State Human Rights Commission In contrast the Parliament has used the word shall in sub-Section (3) while providing for constitution of a National Commission The argument on behalf of the defaulting States therefore was that the use of two different expressions while dealing with the subject of analogous nature is a clear indication that while a National Human Rights Commission is mandatory a State Commission is not That argument is no doubt attractive but does not stand close scrutiny

May and shall No necessary meaning

General impression is that may means directory and shall means mandatory This impression is not correct DKBasu with the help of various authorities holds otherwise which is as under

10 A long line of decisions of this Court starting with Sardar Govind

Rao V State ofMadhya Pradesh ^ have followed the above line of reasoning and authoritatively held that the use of the word may or

shall by themselves do not necessarily suggest that one is directory

and the other mandatory but the context in which the said expressions have been used as also the scheme and the purpose underlying the legislation will determine whether the legislative intent really was to simply confer the power or such conferment was accompanied by the duty to exercise the same

Another authority quoted is Bachahan Devi v Nagar Nigam Gorakhpur^ It was righty relied upon because one of the issue was identical that what is the position in law when both the expression shall and may are used in the same provision The division bench succinctly summarized the position as under

It is well settled that the use of word may in a statutory provision would not by itself show that the provision is directory in nature In some cases the legislature may use the word may as a matter of pure

conventional courtesy and yet intend a mandatory force [Emphasis Added]

55 (i para 9

56 AIR 1965 SC 1222

57 (2008) 12 s e c 372

58 W para 18


To interpret the legal import of the word may the court found six factors viz

the object and the scheme of the Act the context the background against which the words have been used the purpose the advantages sought to be achieved by the use of this word and other similar things^

Nature of word may

The use of word may does not always intend what is the nature of provision It can be decided on various other considerations as under

The use of word may is not by itself determinative of the true nature of the power or the obligation conferred or created under a provision The legal position on the subject is fairly well settled by a long line of decisions of this Court The stated position is that the use oiword may

does not always mean that the authority upon which the power is vested

may or may not exercise that power [Emphasis Added]

May may amomit to shall

The court observed that May in certain cases might mean shall or must under following circumstances

Whether or not the word may should be construed as mandatory and equivalent to the word shall would depend upon the object and the

purpose of the enactment under which the said power is conferred as also related provisions made in the enactment The word may has been often read as shall or must when there is something in the nature of the thing to be done which must compel such a reading In other words the conferment of the power upon the authority may having regard to the context in which such power has been conferred and the purpose of its conferment as also the circumstances in which it is meant to be exercised carry with such power an obligation which compels its

The court imported the locus classicus from Julius v Bishop of Oxford^ where Cairns LC J observed

[T]he words it shall be lawful are not equivocal They are plain and unambiguous They are words merely making that legal and possible which there would otherwise be no right or authority to do They confer a faculty or power and they do not of themselves do more than confer a faculty or power But there may be something in the nature of the thing empowered to be done something in the object for which

59 Ibid


61 (1880) 5 AC 214


it is to be done something in the conditions under which it is to be done something in the title of the person or persons for whose benefit the power is to be exercised which may couple the power with a duty and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so

The court in DK Basu took further support from Lord Blackburn in the same case where it was observed that

I do not think the words it shall be lawful are in themselves ambiguous at all They are apt words to express that a power is given and as prima facie the donee of a power may either exercise it or leave it unused it is not inaccurate to say that prima facie they are equivalent to saying that the donee may do it but if the object for which the power is conferred is for the purpose of enforcing a right there may be a duty cast on the donee of the power to exercise it for the benefit of those who have that right when required on their behalf

The court also took support from The Official Liquidator v Dharti Dhan Pvt

Ltd^ where the Supreme Court summed up the legal position thus

In fact it is quite accurate to say that the word may by itself acquires the meaning of must or shall sometimes This word however always signifies a conferment of power That power may having regard to the context in which it occurs and the requirements contemplated for its exercise have annexed to it an obligation which compels its exercise in a certain way on facts and circumstances from which the obligation to exercise it in that way arises In other words it is the context which can attach the obligation to the power compelling its exercise in a certain way The context both legal and factual may impart to the power that obligatoriness Thus the question to be determined in such cases always is whether the power conferred by the use of the word may has annexed to it an obligation that on the fulfilment of certain legally prescribed conditions to be shown by evidence a particular kind of order must be made If the statute leaves no room for discretion the power has to be exercised in the manner indicated by the other legal provisions which provide the legal context Even then the facts must establish that the legal conditions are fulfilled A power is exercised even when the Court rejects an application to exercise it in the particular way in which the applicant desires it to be exercised

62 Supra note 53 63 AIR 1977 SC 740


Discretion means the authority has very wide power to say either yes or no to a demand The court in the previous judgement observed that

Where the power is wide enough to cover both an acceptance and a refusal of an application for its exercise depending upon facts it is directory or discretionary It is not the conferment of a power which the word may indicates that annexes any obligation to its exercise but the legal and factual context of it

Two types of discretionary power witli may-power with and without duty

A provision may grant an authority plain and wide discretionary power called as power simpliciter On the other hand a provision may grant power coupled with duty The court took support from ND Jayal v Union of Indict^ where the provisions of the Environmental Protection Act 1986 was interpreted to mean that the power conferred under the Act was not a power simpliciter but was power coupled with duty Unless the Act was so interpreted sustainable development and protection of life under article 21 was not possible Another precedent used by the court was Manushldilal Vithaldas Chauhan v State ofGujaraf where the Supreme Court held that the scheme of the statute is determinative of the nature of duty or power conferred upon the authority while determining whether such power is obligatory mandatory or directory and that even if that duty is not set out clearly and specifically in the stature it may be implied as correlative to a right

Pure discretion or limited discretion

It is equally well-settled that where the word may involves

i a discretion coupled with an obligation or

ii where it confers a positive benefit to a general class of subjects in a utility Act or

iii where the court advances a remedy and suppresses the mischief or

iv where giving the words directory significance would defeat the very obj ect of the Act

the word may should be interpreted to convey a mandatory force

The interpretation indicates violence of plain language but the unexplained delay on the part of states is a type of arrogance This interpretation of provision of PHRA 1993 is a warning that judiciary cannot remain silent spectator and will use its mighty to for better protection of human rights

64 The Official Liquidator v Dharti Dhan Pvt Ltd (1977) 2 SCC 16

65 (2004) 9 SCC 362

66 (1997) 7 SCC 622


Liberal v Strict

Another area of critical discourse is liberal or strict interpretation Judges have to face the arguments that a particular word should be given liberal or strict meaning Cases are bound to apply one or the other approaches

In the case of Supreme Court Advocates-on-Record - Association v Union of

Indid Kurian J states as under

The third type of constitutional argument is structural argument Structural arguments are claims that a particular principle or practical result is implicit in the structures of government and the relationships that are created by the Constitution among citizens and governments Professor (Dr) Upendra Baxi has yet another tool - episodic which according to him is often wrongly used in interpreting the Constitution

To structural is the most important argument while interpreting the

Constitution

Explaining structural interpretation he further says

Structural arguments are inferences from the existence of constitutional structures and the relationships which the Constitution ordains among these structures They are to be distinguished from textual and historical arguments which construe a particular constitutional passage and then use that construction in the reasoning of an opinion

Liberal interpretationBail in Rape cases

In the case of Bhadresh Bipinbhai Sheth v State of Gujarat the court has to exercise its discretion for anticipatory bail The court observed that Judicial interpretative process is of great significance to exercise the discretion It referred the constitution bench decision of Gurbaksh Singh Sibbia v State of Punjab to find a direction whether the words may if it thinks fit should be given a liberal interpretation or strict interpretation As the provision of anticipatory bail enshrined in Section 438 is conceptualised under Article 21 of the Constitution which relates to personal liberty Therefore such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution Though applicant was under obligation to make out a case for grant of anticipatory bail he is not obliged to make out a special case even if it is a serious case like section 376 of Indian Penal Code 1860 (IPC) In this case the alleged incident of rape was 17 years old and for which the charge is

67 AIR 2016 SC 117 A constitution bench decision(4l) also called as Fourth Judges case Decided on Oct 162015

68 Ibid

69 (2016) 1 s e c 152 The case was unanimously decided on Sept 1 2015 by a division bench of Rohinton Fali Nariman J with AK Sikri J who delivered the judgement hereinafter referred as Bhadresh

70 (1980) 2 s e c 565


framed only in the year 2014 The investigation was complete There was no allegation that the appellant may flee the course of justice The FIR was registered and the trial commenced in the year 2001 albeit with the charge framed under section 506(2) IPC and during all these periods the appellant has participated in the proceedings There is no allegation that during this period he had tried to influence the witnesses In the aforesaid circumstances even when there is a serious charge levelled against the appellant that by itself should not be the reason to deny anticipatory bail when the matter is examined keeping in view other factors enumerated above

Interpretation of 304 B

Penal laws regarding women have witnessed diverse interpretation Traditional rule try to stick to the strict interpretation of penal laws while dowry laws being social welfare provision have also witnessed purposive interpretation Jivendra Kumar v Jaidrath Singh^ not only addresses this issue but also corrects two precedents which gave strict interpretation to dowry provision and declared that demand of dowry is different from commercial demand or demand for domestic needs In Appasaheb v State of Maharashtra^ the Supreme Court construed the definition of dowry strictly as it forms part of section 304B which is part of a penal statute The court held that a demand for money for defraying the expenses of manure made to a young wife who in turn made the same demand to her father would be outside the definition of dowry The judgment was followed in Vipin Jaiswal v State ofAndhra PradeshP

Jivendra Kumar v Jaidrath Singh rightly held that

20 Given that the statute with which we are dealing must be given a fair pragmatic and common sense interpretation so as to fulfill the object sought to be achieved by Parliament we feel that the judgment

in Appasaheb s case followed by the judgment of Kulwant Singh do

not state the law correctly We therefore declare that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act at or before or at any time after the marriage which is reasonably connected to the death of a married woman would necessarily be in connection with or in relation to the marriage unless the facts of a given case clearly and unequivocally point otherwise

Jivendra Kumar also produced the opinion of Standard Chartered Bank v Directorate of Enforcement^ another Constitution Bench (32) which follows

71 See also Rajinder Singh v State of Punjab (2015) 6 SCC 477 both cases decided on Feb 26 2015 by athree judges bench of JJ TS Thaakur PC Pant with Rohinton Nriman who delivered the verdict

72 (2007) 9 SCC 721

73 (2013) 3 SCC 684 at 687-688


75 (2005) 4 SCC 530 547


All penal provisions like all other statutes are to be fairly construed according to the legislative intent as expressed in the enactment Here the legislative intent to prosecute corporate bodies for the offence committed by them is clear and explicit and the statute never intended to exonerate them from being prosecuted It is sheer violence to common sense that the legislature intended to punish the corporate bodies for minor and silly offences and extended immunity of prosecution to major and grave economic crimes

In the conclusion of survey of 2013 while commenting on Vipin Jaiswal it was suggested that

Parliament should intervene with an explanation that any demand was for business needs and not in continuity of dowry has to be proved by the accused party

The suggestion was made because we thought the decision was not in right spirit Before parliament removes the anomaly the Supreme Court has itself and rightly done it Dowry though is a penal enactment is also a welfare legislation Sticking to strict interpretation of penal provision will frustrate the purpose of provision

Penal versus Remedial statutes

Penal statutes are those which provide punishment for a conduct A remedial statute according to Corpus Juris Secundum is designed to correct an existing law redress an existing grievance or introduce regulations conducive to the public good

Sunil Bharti case

Interpretation is not limited to statutes An order of a subordinate court may also be a subject matter of interpretation Sunil Bharti Mittal v CBI deliberates on what is the correct interpretation of the order on March 19 2013trade of Special CBl Judge New Delhi Whether the order is in two part or one part which is noticed by the court as under

Mr Venugopal joined issue on the interpretation given by the appellants

to the impugned order According to him the order could not be

bifurcated into two parts Para 3 of the order wherein the Special Judge has observed that he had perused the FIR charge-sheet statement of witnesses and documents on record was relatable to the three

76 AnuragDeep Interpretation of Statutes ^laquolaquoMaSMrveyolaquo(ialaquo Law 825 XLIX^S7L (2013) 77 Rudolph H Heimanson Remedial Legislation available at httpscholarshiplawmarquetteedu

cgiviewcontentcgiarticle=2717ampcontext=mulr (last visited on Aug 10 2016)

78 2015 s e c OnLine SC 18 The case was unanimously decided on Jan 9 2015 by afull bench of CJl ML Dattu Madan B Lokur AK Sikri JJ hereinafter referred as Sunil Bharti case

79 Id at


individuals including the two appellants as well He even submitted that in the absence of individual accused persons who were in charge of the affairs of the three accused companies it may become difficult to proceed against the accused companies alone as it was a mens rea

offence [Emphasis Added]

Alter ego in criminal law

The judgement however deals with interpretation of the principle of alter ego Mens rea is attributed to corporations on the principle of alter ego of the company The court addressed this significance of alter ego after referring to various precedents especially constitution bench judgement of Standard Chartered Bank v Directorate of Enforcement as under

The legal proposition that is laid down in the aforesaid judgment is that if the person or group of persons who control the affairs of the company commit an offence with a criminal intent their criminality can be imputed to the company as well as they are alter ego of the company

In other words if Al A2 are directors of a big company and there are prima facie evidences that Al and A2 intended to commit fraud this intention may be attributed to the intention of company on the basis of alter ego and the company may be prosecuted and punished for committing fraud

Reverse alter ego

Another issue in Sunil Bharti Mittal was whether alter ego principle can be constructed in a reverse manner to allege criminal liability of a person In other words if company is an accused and S1 is a director or CEO of company who is not made accused can the reverse alter ego be used ie attributing the Mens Rea of company to SI director or CEO The court held as under

Here company is the accused person and the learned Special Magistrate has observed in the impugned order that since the appellants represent the directing mind and will of each company their state of mind is the state of mind of the company and therefore on this premise acts of the company is attributed and imputed to the appellants It is difficult to accept it as the correct principle of law this proposition would run contrary to the principle of vicarious liability

The ratio decidendi has been narrated as under

When the company is the offender vicarious liability of the Directors cannot be imputed automatically in the absence of any statutory

80 (2005) 4 s e c 530 81 Ibid


provision to this effect One such example is Section 141 of the Negotiable Instruments Act 1881 In Aneeta Hada^^ the Court noted that if a group of persons that guide the business of the company have the criminal intent that would be imputed to the body corporate and it is in this backdrop Section 141 of the Negotiable Instruments Act has to be understood Such a position is therefore because of statutory intendment making it a deeming fiction Here also the principle of alter ego was applied only in one direction namely where a group of persons that guide the business had criminal intent that is to be imputed to the body corporate and not the vice versa Otherwise there has to be a specific act attributed to the Director or any other person allegedly in control and management of the company to the effect that such a person was responsible for the acts committed by or on behalf of the company

In other words innovation and experiments are not permissible in criminal law in such a manner that it goes against the interest of accused suspect This is the reason of giving a strict interpretation to a penal legislation In the principles of evidence also we find the same accused oriented approach For example regarding standard of proof prosecution has to prove beyond reasonable doubts while accused is not required to prove beyond reasonable doubts but she may only raise convincing doubts Burden of accused is preponderance probability

Dowry death provision and Sher Singh

The interpretation of section 304B continue to swing from one side to other side soon before deemed and dowry continue to get attention in the courts Like

82 Companies Act 1956 s 141 Offences by companies mdash(1) If the person committing an offence under section 138 is a company every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence 22 [Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government as the case may be he shall not be liable for prosecution under this Chapter]

(2) Notwithstanding anything contained in sub-section (1) where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of any director manager secretary or other officer of the company such director manager secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly Explanationmdash For the purposes of this sectionmdash

(a) company means any body corporate and includes a firm or other association of individuals and

(b) director in relation to a firm means a partner in the firm ]

83 P^eeta Hada v Godfather Travels amp Tours (P) Ltd (2012) 5 SCC 661


previous survey soon before came for discussion in the case of Sher singh but there is hardly anything noticeable for the purpose of interpretation except following part of passage

We are aware that the word soon finds place in Section 304B but we

would prefer to interpret its use not in terms of days or months or

years but as necessarily indicating that the demand for dowry should not be stale or an aberration of the past but should be the continuing

cause for the death under Section 304B or the suicide under Section 306 of the IPC [Emphasis Added]

Prove vis a vis sliown are tliey synonymous

In Sher Singh Pratapa the court discussed the rules regarding interpretation of words used in same provision In the background of 304B where shown is used and not proved the court observed as under

In our opinion it is beyond cavil that where the same word is used in a section andor in sundry segments of a statute it should be attributed the same meaning unless there are compelling reasons to do otherwise The obverse is where different words are employed in close proximity

or in the same section or in the same enactment the assumption must

be that the legislature intended them to depict disparate situations

and delineate dissimilar and diverse ramifications Ergo ordinarily Parliament could not have proposed to ordain that the prosecution should prove the existence of a vital sequence of facts despite having employed the word shown in Section 304B

Sher Singh Pratapa makes certain radical findings in context of section 304B which is as under

The other facet is that the husband has indeed a heavy burden cast on his shoulders in that his deemed culpability would have to be displaced and overturned beyond reasonable doubt

In case of 304B husband is generally accused Husband being accused general or traditional principle of evidence should follow Legal responsibility regarding standard of proof for husband is preponderance probability and not beyond reasonable doubts Relevant statute does not say the standard of proof on husband is beyond reasonable doubts When statute do not modify the principle on what basis the court may modify principle that too in penal laws

Sher Singh is further discussed in VKMishra v State of Uttarakhand as under

84 Supra note 42 para 12 85 (2015) 9 s e c 58828 July 2015 TS Thakur RK Agrawal JJ and delivered by R Banumathi

J unanimously


7 In Sher Smgh Partapa vs State of Haryana (2015) 1 SCR 29 it had been held therein that the use of word shown instead of proved in Section 304B IPC indicates that the onus cast on the prosecution would stand satisfied on the anvil of a mere preponderance of probability In other words shown will have to be read up to mean proved but only to the extent of preponderance of probability Thereafter the word deemed used in that Section is to be read down to require an accused to prove his innocence but beyond reasonable doubt The deemed culpability of the accused leaving no room for the accused to prove innocence was accordingly read down to a strong presumption of his culpability The accused is required to rebut this presumption by proving his innocence The same view was reiterated in Ramakant Mishra Lalu etc vs State of UP 2015 (3) SCALE 186

In 2011 in the case of Bansilal v State ofHaryanc^ it was held that onus lies on the accused to rebut the presumption and in case of Section 113Brelatable to Section 304 IPC the onus to prove shifts exclusively and heavily on the accused

In Anand Kumar v State ofMP^^ the court held as under

A comparative reading of the two provisions would highlight that under Section 113-A the Court may presume having regard to all the other circumstances of the case an abetment of suicide as visualized by Section 306 ofthe IPC but in Section 113-B whichisrelatableto Section 304-B the word may has been substituted by shall and there is no reference to the circumstances of the case Admittedly the conviction ofthe appellant has been recorded under Section 306 which is relatable to Section 113 -A and though the presumption against an accused has

to be raised therein as well the onus is not as heavy as in the case of

a dowry death In this background Ms Makhija s arguments that the

onus shifts exclusively and heavily on an accused in such cases is not

entirely correct

Such cases refer to section 306 and 113A The standard of proof in 304B is heavier than 306 but is it beyond reasonable doubts is a doubtful principle because it disturbs the level playing field of State vis a vis accused Another point is once the onus is shifted either in 113A (may presume) or in 113B (shall presume) the accused has to rebut the presumption Why in case of 113B it is heavier than 113A The difference is that in may presume the court is empowered to ask for more evidence

86 (2011) 11 s e c 359

87 Id para 19

88 (2009) 3 s e c 799Decided on Feb 20 2009

89 W para 11


before onus shifts while in case of shall presume once elements are proved the onus shifts by virtue of law and the court is not empowered to ask for other evidences

Maya Devi v State ofHaryand^ uses following passage ixovuMustafaShahadal

Shaikh v State of Maharashtra^^

When the above ingredients are estabUshed by reUable and acceptable

evidence such death shall be called dowry death and such husband or his relatives shall be deemed to have caused her death it is open to the accused to adduce such evidence for disproving such conclusive presumption as the burden is unmistakably on him to do so and he can discharge such burden by getting an answer

While this para is not clear on the nature of reUable and acceptable evidence

Maya Devi does follow Sher Singh without mentioning it The relevant passage is as under^

the redeeming factor of this provision [113B of the Evidence Act] is that the presumption is rebuttable Section 113B of the Act enables an accused to prove his innocence and places a reverse onus of proof on him or her In the case on hand accused persons failed to prove beyond reasonable doubt that the deceased died a natural death [Emphasis Added]

The 2015 batch of cases is changing the criminal jurisprudence because precedents follow the traditional jurisprudence

Prosecution to prove beyond reasonable doubts-304B

In the case oi Indrajit Sureshprasad Bind v State of Gujarat^ entirely contrary

opinion has been made which is as under

To establish the offence of dowry death under Section 304B IPC the

prosecution has to prove beyond reasonable doubt that the husband or his relative has subjected the deceased to cruelty or harassment in connection with demand of dowry soon before her death Similarly to establish the offence under Section 498A IPC the prosecution has to prove beyond reasonable doubt that the husband or his relative has subjected the victim to cruelty as defined in Clauses (a) and (b) of the

90 s e c OnLine Se 476 December 7 2015 Division bench with justice Vikramjit Sen and RK Agrawal

91 (2012) 11 s e e 397


93 (2013) 14 s e e 678

94 Id para 7


Explanation to Section 498A IPC In the present case the prosecution

has not been able to prove beyond reasonable doubt that the appellants have subjected the deceased to any cruelty or harassment [Emphasis Added]

This does not state what should be the nature of proof for accused but clearly states that for prosecution it is beyond reasonable doubts even in case of 304B Indrajit

Sureshprasad Bind referred in Karan Singh v State of Haryana^^ Another case is Rajeev Kumar v State ofHaryana^ which states as under

One of the essential ingredients of the offence of dowry death under Section 304B IPC is that the accused must have subjected a woman to cruelty in connection with demand of dowry soon before her death and this ingredient has to be proved by the prosecution beyond reasonable

doubt and only then the Court will presume that the accused has committed the offence of dowry death under Section 113B of the Indian Evidence Act

Similarly in Asha v State of Uttarakhand ^^ following passage is relevant

The courts below have not noticed the important aspect of the case namely that the charge of dowry death that there was demand on the deceased either before the marriage or soon before the death of the deceased made against the accused persons should have been proved

beyond

Shanti v State of Haryana^ may also be referred In Kans Raj v State of

Punjab^ is a three judges bench decision It states that in cases where such accusations are made the overt acts attributed to persons other than the husband are required to be proved beyond reasonable doubt By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths Shamnsaheb M Multtani v State of Kamataka^^ another three judges bench case which dealt with the alternate conviction under section 304B instead of 302 without any charge The court did not mention that the prosecution can prove case on balance of probability and accused has to prove beyond reasonable doubts Pawan Kumar v State of Haryana^ also suggests similar approach

95 (2014) 5 s e c 73- a division bench of RanjanaPrakasliDesai and MadanB LokurJJ

96 AIR 2014 SC 227

97 Id at

98 (2014) 4 s e c 174 Nov 12013 BenchmdashSudhansu Jyoti Mukhopadhaya V Gopala Gowda JJ

99 (1991) 1 s e e 371 1991 S e e (eri) 191 at 375 para 5

100 (2000) 5 s e e 207 2000 s e e (ed) 935 at 214 para 5

101 (2001) 2 s e e 577 2001 s e e (eri) 358 at 587 para 32

102 1998) 3 s e e 309


This deeming clause has a role to play and cannot be taken lightly and ignored to shield an accused otherwise the very purpose of the amendment will be lost Of course the prosecution has to prove the

ultimate essential ingredients beyond all reasonable doubt after raising the initial presumption of deemed dowry death

NoorAga v State ofPunjab^^ is on NDPS Act where constitutional validity of the section 35 etc under Narcotic Drugs and Psychotropic Substances Act 1985 was questioned Section 35 is reverse onus clause The standard and extent of burden of proof on the prosecution vis- -vis accused was in question The case is relevant not only because it deals with reverse onus but also because the court took into notice provisions regarding dowry as under

The provision for reverse burden is not only provided for under the special acts like the present one but also under the general statutes like the Indian Penal Code The Indian Evidence Act provides for such a burden on an accused in certain matters as for example under Section 113A andll3B thereof Even otherwise this Court having regard to the factual scenario involved in cases eg where husband is said to have killed his wife when both were in the same room burden is shifted to the accused

Regarding standard of proof Aoor ^ g a does make following remarks

Sections 35 and 54 of the Act no doubt raise presumptions with regard to the culpable mental state on the part of the accused as also place burden of proof in this behalf on the accused but a bare perusal of the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied An initial burden exists upon the prosecution and only when it stands satisfied the legal burden would shift Even then the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution Whereas the standard of proof required to prove the guilt of accused on the prosecution is beyond all reasonable doubf but it is preponderance of probabilityon the accused If the prosecution fails to prove the foundational facts so

103 (2008) 16 s e c 417 Decided on July 9 2008 by SB Sinha VS Sirpurkar JJ 104 Narcotic Drugs and Psychotropic Substances Act 1985-s 35 Presumption of culpable mental

state- (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution

Explanation-In this section culpable mental state includes intention motive knowledge of a fact and belief in or reason to believe a fact (2) For the purpose of this section a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability


as to attract the rigours of Section 35 of the Act the actus reus which is possession of contraband by the accused cannot be said to have been established

What adds greater significance to Noor Ago is the fact that section 35 makes provision for burden of proof and standard of proof while 304B or 113B says nothing on standard of proof Still the court in NoorAga followed by Bhola Singh v State of

Punjab^^ did not modify the time honoured rule of standard of proof 304B of IPC and 113B of Indian Evidence Act 1872 reduce the burden of

prosecution because they have neither to prove mens rea nor the actus reus of killing by accused but only circumstances General rule is that the elements of crime has to be proved beyond reasonable doubts This rule still holds good in case of dowry death crime By diluting the requirement of mental element the penal law has been modified If rules of evidence will also be modified it will be an unreasonable burden on the accused Secondly there are a number of provision that contain deem guilty clause Will not all of them be similarly affected Every prosecution under section 304B has to begin with presumption of innocence like under section 302 When prosecution proves the ingredients of crime beyond reasonable doubts the presumption of innocence is neutralised In case of 302 it neutralizes when prosecution proves mens rea to kill actus reus required to kill and causal relations between cause and effect In 304B the prosecution is not required to prove mens rea but only actus reus and causal relations Other rules of evidence remain same In case of section 302 once prosecution fulfills its responsibility required under section 300 the accused can now take general defences or partial defences This defence has to be proved on balance of probabilities and not beyond reasonable doubts

It is difficult to appreciate how the full bench in VKMishra v State of

Uttarakhand Jivendra Kumar^ and other division benches have approved the judgement of Sher Singh without discussing precedents and principles of criminal law Preponderance of possibility by prosecution and beyond reasonable doubts by accused is not known to criminal jurisprudence It does mean that accused could be punished even if there is some reasonable doubts The presumption already weakens the position of accused but it is done by statute The judgement further weakens the status of accused which cannot be done either without statute or without a thorough discussion State is not only mighty because of its resources but the accused in custody is too vulnerable to defend himself as she cannot personally take care of his defence It is understandable that the burden of prosecution is reduced because of special circumstances but the burden of accused is increased is beyond comprehension that too without statutory sanction

105 (2011) 11 s e c 653 Decided Feb 8 2011 106 Supra note 85 Decided on July28 2015 Full bench of TS Thakur RK AgrawalJJ and delivered

by R Banumathi J unanimously


III CANNONS OF INTERPRETATION

Plain meaning-literal rule

In the case oi SCORA v Union of India Fourth Judges case) it was argued that basic structure should be given plain meaning in accordance with the provisions of the Constitution The court answered this as under

The cause effect and the width of a provision which is the basis of a challenge may sometimes not be apparent from a plain reading thereof The interpretation placed by this Court on a particular provision

would most certainly depict a holistic understanding thereof wherein

the plain reading would have naturally been considered but in addition thereto the vital silences hidden therein based on a harmonious

construction of the provision in conjunction with the surrounding

provisions would also have been taken into consideration The mandate of Article 141 obliges every court withinthe territory of India to honour the interpretation conclusion or meaning assigned to a

provision by this Court would therefore be rightful to interpret the

provisions of the Constitution relied upon by giving the concerned

provisions the meaning understanding and exposition assigned to

them on their interpretation by this Court In the above view of the matter would neither be legal nor just to persist on an understanding

of the concerned provision(s) merely on the plain reading thereof as

was suggested on behalf of the respondents Even on a plain reading of Article 141 we are obligated to read the provisions of the Constitution in the manner they have been interpreted by this Court [Emphasis Added]

Mischief Heydons rule

Hey dons case is probably the oldest authority in the area of interpretation In the case oi Keshavlal Khemchand And Sons v Union of Indiatrade section 2(l)(o) of the SARFESI Act 2002 was under challenge It was amended in 2004 and a modified criteria for non performing asset (NPA) was incorporated This new definition of NPA was challenged on the grounds of violation of article 14 The court without referring to the mischief rule inquired into what was the provision before the amendment as under ^

107 Also Rajinder Singh v State of Punjab (2015) 6 SCC 477 Decided on Feb 26 2015 RF Nariman Bench TS Thakur Rohinton Fall Nariman Prafulla C Pant JJ

108 AIR 2016 SC 117 Decided on Oct 16 2015 It was a constitution bench case (41)

109 See observations of Khehar J

110 [1584] EWHC Exch J36 (Jan 11584)

111 (2015)4 SCC 770 The unanimous verdict was delivered by J Chelameswar J Other agreeing member was SA Bobde J The case was decided on Jan 28 2015

112 Id para 18


It can be seen from the above that prior to its amendment by Act 30 of

2004 NPA is defined as an account of a borrower which has been classified by a CREDITOR either as a sub-standard asset or a doubtful asset or a loss asset of the CREDITOR and such a classification is required to be made in accordance with the directions or guidelines relating to assets classification issued by the Reserve Bank

The court then compared the old description with the new one as under

But under the amended definition such a classification of the account of a borrower by the CREDITOR is required to be made in accordance with the directions or guidelines issued by an authority or body either established or constituted or appointed by any law for the time being in force in all those cases where the CREDITOR is either administered or regulated by such an authority (hereinafter referred to as the REGULATOR) If the CREDITOR is not administered or regulated by any such REGULATOR then the CREDITOR is required to classify the account of a borrower as NPA in accordance with the guidelines and directions issued by the Reserve Bank of India

In other words by the amendment the Parliament made it possible that different sets of guidelines made by different bodies may be followed by different CREDITORS depending upon the fact as to who is the administering or regulating authority of such CREDITOR Hence the challenge to the amended provision

By resorting to previous position and comparing with the new one the court also makes itself aware of the intent of the parliament

Purposive interpretation

Purposive interpretation is recognised as modem form of interpretation which defies any rule because the purpose of law should be served

Conflicting provisions

When there is a conflict between two provisions how the court should resolve it The court may examine-

i If there is any clear overriding provision in the enactment under question then overriding provision prevails

ii If a provision is special and other is general in nature then special will prevail over general

iii If by implication legislative intention is to give effect to one provision over other

iv If a harmonious construction is possible between two provision or enactment

113 W para 19-20


If there is a clear provision which may have some adverse impact should the

court go in the impact of provision or should the court give effect to the provision

Reserve Bank of India v Jayantilal N Mistry^ answers this question to

considerable extent In this case certain information regarding banks were sought

from Reserve Bank of India (RBI) under Right to Information Act 2005 (RTI) RBI

did not provide all information under exemption clause The issue was whether the

RTI overrides various provisions of special statutes which confer confidentiality in

the information obtained by the RBI Following reasons were given by RBI^

i Information sought is exempted under Section 8(l)(a) (d) and (e) of the

Right to Information Act 2005=

ii Information is kept by bank in fiduciary capacity

iii There are statutory provisions of confidentiality in the Banking Regulation

Act 1949 the Reserve Bank of India Act 1934 and the Credit Information

Companies (Regulation) Act 2005 Any such information under RTI

would repeal or overrule these enactments on Banks Such interpretation

is not supported by rules of construction

114 (2016) 3 s e c 525 Decided in Dec 2015

115 Id at 529

116 Right to Information Act 2005 s 8 Exemption from disclosure of informationmdash

(1) Notwithstanding anything contained in this Act there shall be no obligation to give any citizenmdash (a) information disclosure of which would prejudicially affect the sovereignty and integrity of India the security strategic scientific or economic interests of the State relation with foreign State or lead to incitement of an offence

(d) information including commercial confidence trade secrets or intellectual property the disclosure of which would harm the competitive position of a third party unless the competent authority is satisfied that larger public interest warrants the disclosure of such information

(e) information available to a person in his fiduciary relationship unless the competent authority is satisfied that the largerpublic interest warrants the disclosure of such information

117 Judisnicin para 28 Under the Banking Regulation Act 1949 the Reserve Bank of India has a right to obtain information from the banks under s 27 These information can only be in its discretion published in such consolidated form as RBI deems fit Likewise under s 34A production of documents of confidential nature cannot be compelled Under sub-s (5) of s 35 the Reserve Bank of India may carry out inspection of any bank but its report can only be disclosed if the Central Government orders the publishing of the report of the Reserve Bank of India when it appears necessary Para 29 Under Section 45E of the Reserve Bank of India Act 1934 disclosure of any information relating to credit information submitted by banking company is confidential and under Section 45E(3) notwithstanding anything contained in any law no court tribunal or authority can compel the Reserve Bank of India to give information relating to credit information etc Para 30 Under sl7(4) of the Credit Information Companies (Regulation) Act 2005 credit information received by the credit information company cannot be disclosed to any person Under s 20 the credit information company has to adopt privacy principles and under s 22 there cannot be unauthorized access to credit information Para 32 This is in addition to other statutory provisions of privacy in Section 44 of State Bank of India Act 1955 s 52 State Bank of India (Subsidiary Banks) Act 1959 s 13 of the Banking Companies (Acquisition amp Transfer of Undertakings) Act 1970


iv Legislative intent-Parliament made amendments in certain banking provisions in question which came in existence after RTI Act The parliament did not made any modifications in confidentiality clause of banking legislations This indicates that the intention of parliament was not to disturb the confidentiality clause of banking enactments Therefore overriding provision of RTI should be interpreted in a manner to give effect of legislative intention

V Lex specialisi-ProYisions in banking enactments are special while provision of RTI are general provision When two different law govern in inconsistent manner special law will prevail over general law (lex

generalis)^^

vi Any direction to RBI to divulge information regarding customers will be intervention in economic policy The court should not intervene in policy matters

vii Information if given will prejudicially affect the economic interest of the State

viii If the information sought for is sensitive from the point of adverse market reaction it may lead to systematic crisis for financial stability

The Supreme Court explored legislative intention through the speech of the then PM (2005) that Modem societies are information societies Citizens tend to get interested in all fields of life and demand information that is as comprehensive accurate and fair as possible The statements made in Bill was also referred as under ^

[T]he categories of information exempted from disclosure are a bare minimum and are contained in clause 8 of the Bill Even these exemptions are not absolute and access can be allowed to them in public interest if disclosure of the information outweighs the harm to the public authorities Such disclosure has been permitted even if it is in conflict with the provisions of the Official Secrets Act 1923

118 Id para 31 It was further contended that the Credit Information Companies Act 2005 was brought into force after the Right to Information act 2005 wef 14122006 It is significant to note that s 28 of Banking Regulation Act 1949 was amended by the Credit Information Companies (Regulation) Act 2005 This is a clear indication that the Right to Information Act 2005 cannot override credit information sought by any person in contradiction to the statutory provisions for confidentiality

119 Id para 33 The Right to Information Act 2005 is a general provision which cannot override specific provisions relating to confidentiality in earlier legislation in accordance with the principle that where there are general words in a later statute it cannot be held that the earlier statutes are repealed altered or discarded

120 The court referred 5 SMryalaquoarayalaquoa V W 1453 The KoUuru Parvathi Co-Op Bank Ltd 1986 AIR (AP) 244 and Peerless General Finance and Investment Co Limited v Reserve Bank of India 1992 2 SCC 343

121 a p r a note 114 at 555


The meaning of fiduciary relationship was elaborately discussed in context of section 8(l)(e) of the RTI Act The court quoted four rules as under^^

(i) No Conflict rule- A fiduciary must not place himself in a position where his own interests conflicts with that of his customer or the beneficiary There must be real sensible possibility of conflict

(ii) No profit rule- a fiduciary must not profit from his position at the

expense of his customer the beneficiary

(iii) Undivided loyalty rule- a fiduciary owes undivided loyalty to the beneficiary not to place himself in a position where his duty towards one person conflicts with a duty that he owes to another customer A consequence of this duty is that a fiduciary must make available to a customer all the information that is relevant to the customers affairs

(iv) Duty of confidentiality- a fiduciary must only use information obtained in confidence and must not use it for his own advantage or for the benefit of another person

RBI not in fiduciary relationship

The court found that RBI receives various information from banks but the information is received not in trust or confidence The information giver is obliged to do so The court observed as under^

58 In the instant case the RBI does not place itself in a fiduciary relationship with the Financial institutions (though in word it puts itself to be in that position) because the reports of the inspections

statements of the bank information related to the business obtained

by the RBI are not under the pretext of confidence or trust In this

case neither the RBI nor the Banks act in the interest of each other By attaching an additional fiduciary label to the statutory duty the Regulatory authorities have intentionally or unintentionally created an in terrorem effect [Emphasis Added]

62 However where information is required by mandate of law to be

provided to an authority it cannot be said that such information is

being provided in a fiduciary relationship As in the instant case the Financial institutions have an obligation to provide all the information to the RBI and such an information shared under an obligation duty cannot be considered to come under the purview of being shared in fiduciary relationship One of the main characteristic of a Fiduciary

122 Id at 530 123 Ibid


relationship is Trust and Confidence Something that RBI and the Banks lack between them [Emphasis Added]

This involves clash of two interest Public interest of information regarding banking activity especially those where transaction is specific in nature It has no link with day to day activity of bank and customer For example between bank and some big man who takes loan in various crore rupees Or bank has granted loan without following norms but it fulfils target or gives huge benefit to bank itself For this purpose banks hide some information relax norms without authority Though this maximises the benefits of bank this is not permissible in law Suppose in Ghaziabad a hot bed for real estate sector A approaches for a loan against a property in GGl GGl is not approved by Ghaziabad Development Authority Similar project nearby is GG2 Bank wants to grant loan A wants to borrow loan Bank is sure about the customer A because she is a government servant with assets and EMI can be easily deducted from the salary The only lacuna is the property of A is in GGl which is not approved and as per rules of that Bank or RBI guidelines loan cannot be sanctioned Now what the bank will do is that it will grant loan to A but will show the property of A in GG2 and not in GGl This is one practice the banks do There are hundreds of such tricks For ex a property is worth Rs 50 lakh but one can get loan upto Rs 2 crore on that property Some time it is because of corrupt practices some time to maximise benefit to bank While sanctioning loan of Rs 2 crore against a property of Rs 50 lakh the bank might be convinced that the loan is in safe hand and the EMI will never be discontinued However it is not legally permissible as it is against RBI policy and provisions These information if given to public will be detrimental to economic interest of bank A bank which is otherwise doing good business will not be able to continue and sustain if the irregular or illegal practices come in public knowledge

Now RBI knows this and has taken some action against such bank or not taken action against such bank In both the cases if information is given to public (in this case similar information was asked under RTI) the economic interest of bank in particular and banking sector in general will be jeopardised Therefore RBI thought it has the duty to protect the interest of bank so that economy keeps on moving The Supreme Court understood the inside story and the under-current of economic interest of bank because of irregular illegal but practical practices of banks Therefore it observed in no uncertain terms that

RBI is supposed to uphold public interest and not the interest of

individual banks RBI is clearly not in any fiduciary relationship with

any bank RBI has no legal duty to maximize the benefit of any public

sector or private sector bank and thus there is no relationship of

trust between them RBI has a statutory duty to uphold the interest of the public at large the depositors the countrys economy and the banking sector [Emphasis Added]

124 Ibid


RBI as a part of state and a statutory authority has duty to be transparent and open The court with the help of (CIC order in favour of RTI activists in this case) reiterated that disclosure would serve public interest and non-disclosure would be significantly detrimental to public interest and not in the economic interest of India ^ The court answered the query whether giving information to the general public would be detrimental to the economic interests of the country To what extent the public should be allowed to get information It held that fiduciary relationship is a pretext to grant patronage to illegal activity inside the banks RBI instead of making baseless argument of economic interest of bank and economic policy should take measures to give information to public because RBI is no fiduciary capacity and disclosure will serve public interest

IV LEGISLATIVE INTENTION

One of the rule of interpretation that common law dictates is that judges have to seek and enforce legislative intention because parliament in England is supreme Judges need not to look for any other grund norm but parliament In countries like India with written constitution the role of judges is to enforce the words and spirit of the constitution The legislative intention howsoever powerful and expressed is has to be interpreted in the light of constitutional principles

Declaration of Non Performing Assets

In the case of Keshavlal Khemchand^^ under section 2(l)(o) of the SARFESI Act 2002 a new definition of NPA was incorporated It was challenged on the grounds of art 14 of the Constitution of India The court inquired the intention of parliament and observed as under

The question - why did the Parliament impose such an additional obligation on the CREDITORS while proposing to create a mechanism for the expeditious recovery of the money due to the SECURED CREDITORS - requires examination The answer appears to be that under the scheme of Section 13(4) the secured asset (generally the assets of an industrial concern like plant and machinery etc) could be taken possession of and could either be sold or the management could be taken over etc Such an action if not taken after an appropriate deliberation in a given case could result in the disruption of industrial production and consequently resulting in unemployment and loss of GDP etc impacting larger interests of the nation Therefore Parliament

125 The court observed that RBIs argumentthatifpeople whoare sovereign are made aware of the irregularities being committed by the banks then the countrys economic security would be endangered is not only absurd but is equally misconceived and baseless

126 Keshavlal Khemchand Union of India (2015) 4 SCC 770

127 Id at 790


must have thought that the SECURED CREDITORS are required to

assess whether the default in repayment by the borrower is due to any factor which is a temporary phenomenon and the same could be managed by the borrower if some accommodation is given [Emphasis Added]

The above analysis of the scheme of Section 13 of the Act would derive support from the fact that even prior to the coming into force of the Act the CREDITORS were classifying the accounts of the borrowers as NPAs under the statutory guidelines issued by the RBI We have already noticed that under the said guidelines FINANCIAL ASSETS are subshydivided into 4 categories ie (i) standard (ii) sub-standard (iii) doubtful and(iv) loss Depending upon the length of the period for which the installment of money is over due such assets are classified as NPA As the length of the period of over due increased the account of the borrower is progressively classified from sub-standard to loss

The court inquired the parliamentary intention and upheld the wisdom of legislature because this interpretation was neither absurd nor against norms of Constitution

V JUDICIAL LEGISLATION

Judicial legislation in India is no more a rare exercise of judicial power Every year various judgements could be found which not only interpret law but also make law either because there is complete void or fundamental right is violated or public interest is involved or government is reluctant to take effective initiative due to political reason Judicial legislation indeed is a good faith encroachment in the jurisdiction of executive in general and legislature in particular

Common Cause v Union oflndia^^

Common Cause has filed petition under article 32 of the Constitution seeking an appropriate writ to restrain the Union of India and all state governments from using public funds on government advertisements The writ petitioners have also prayed for laying down of appropriate guidelines under article 142 The Supreme Court constituted a committee^ which submitted Government Advertisement (Content Regulation) Guidelines 2014 This consists of eight clause namely i Application ii Definitions Objects iii Government Advertisement To Inform Citizens iv Principles

128 (2015)7 s e c 1 Decided on May 13 2015 Bench Ranjan Gogoi Pinaki Chandra Ghose 129 The Supreme court made a committee of (1) Prof (Dr) NR Madhava Menon former Director

National Judicial Academy Bhopal (2) Mr TK Viswanathan former Secretary General Lok Sabha and (3) Mr Ranjit Kumar Senior Advocate


of Content Regulation v Compliance And Enforcement vi General The court made an analysis of the draft guideline as under

An analysis of the E)raft Guidelines as prepared by the Committee set up by this Court in the case may now be made The applicability of these Guidelines is to all Government advertisements other than classifieds and in all mediums of communication thereby including internet advertising The objective of these Guidelines emphasize the Governments responsibility to disseminate information necessary for the public to know about the policies and programmes of Government It principally spells out five principles to regulate the contents of advertisements namely

i) advertising campaigns are to be related to government responsibilities

ii) materials should be presented in an objective fair and accessible manner and designed to meet objectives of the campaign

iii) not directed at promoting political interests of a Party iv) campaigns must be justified and undertaken in an efficient and

cost- effective manner and v) advertisements must comply with legal requirements and financial

regulations and procedures

The five broad Content Regulations contained in the draft guidelines framed by the Committee are similar to the provisions found in the Australian guidelines However under each broad head specific regulatory parameters have been indicated which seem to embody what would be good practices in the Indian context

The justification of five head as proposed was given as under

While under the first head the requirement of conformity of Government advertisements with dissemination of information relating to Governments constitutional and legal obligations and the corresponding rights and entitlements of citizens is being stressed upon under the second head objective presentation of the materials contained in an advertisement bearing in mind the target audience has been emphasized Under the third head the Guidelines state that advertisement materials must not (a) mention the party in government by its name (b) attack the views or actions of other parties in opposition (c) include any party symbol or logo (d) aim to influence public support for a political party

130 Id at 15 131 W at 17


or a candidate for election or (e) refer or link to the websites of political parties or politicians It is also stated in the Guidelines that photographs of leaders should be avoided and only the photographs of the President Prime Minister or Governor Chief Minister shall be used for effective government messaging The fourth head deals with cost effectiveness of an advertisement campaign and measures to cut down avoidable expenses A somewhat restricted range of advertising activity on the eve of the elections is also recommended Appointment of an Ombudsman to hear complaints of violation of the norms and to suggest amendments thereto from time to time beside special performance audit by the concerned Ministries is also recommended

Union of India filed serious objections on (i) restricted publication of photographs of the Government functionaries and political leaders alongwith the advertisement etc (ii) appointment of an Ombudsman (3) the recommendation with regard to performance audit by each Ministry and (4) embargo on advertisements on the eve of the elections

The court on photograph issue held that

in departure to the views of the Committee which recommended permissibility of publication of the photographs of the President and Prime Minister of the country and Governor or Chief Minister of the State alongwith the advertisements there should be an exception only in the case of the President Prime Minister and Chief Justice of the country who may themselves decide the question Advertisements issued to commemorate the anniversaries of acknowledged personalities like the father of the nation would of course carry the photograph of the departed leader

Regarding appointment of a monitoring body the court directed^

the government should constitute a three member body consisting of persons with unimpeachable neutrality and impartiality and who have excelled in their respective fields

The court finally approved and adopted the recommendations of the committee except what has been specifically indicated It is difficult to understand how and why Prime Minister was chosen as a separate entity vis-a-vis chief ministers Both

132 Id at 20 133 (1) publication of photographs of the Government functionaries and political leaders alongwith the

advertisement(s) (2) appointment of an Ombudsman (3) the recommendation with regard to performance audit by each Ministry (4) embargo on advertisements on the eve of the elections


are de facto head of a democratic power at two different levels The judgement gave the center upper hand probably because the constitution deliberately makes the union more powerful than state which in this case sounds unnecessary

What compelled judiciary to legislate

Is judiciary looking for opportunities to encroach in the domain of executive Was the judiciary compelled to pass such binding order leading to judicial legislation The answer is yes The petition was filed in 2003 2003 to 2015 central government consisted of two different political groups ie BJP led NDA and Congress led UPA Both were almost silent on the issue of wastage of public funds Indeed the judgement dated 23 April 2014 on the same case indicates that the government is justifying its expenditures in the name of policy and discretion Government advertisements are regulated by Directorate of Advertising and Visual Publicity (DAVP) There was a New Advertisement Policy [with effect from October 2 2007] formulated by the Ministry of Information and Broadcasting DAVP was the nodal agency for advertisement There is another Panel Advisory Committee (PAC) for considering applications of newspapersjournals for being empanelled for publishing government advertisements There is one more committee called as Rate Structure Committee What made the court to intervene The court found that there was no policy or guideline to regulate the content of government advertisements and to exclude the possibility of any mala fide use or misuse of public funds on advertisements in order to gain political mileage by the political establishment It distinguished between the advertisements that are part of government messaging including daily business and advertisements that are politically motivated To regulate politically motivated advertisement there was neither policy nor provision nor government was serious to check the misuse of public funds which were too apparent to be explained

The advantage of this judgement is that it creates another check on the discretionary power of governments use of public money regulated in a better manner governments understands the difference between absolute power and power The freedom of media gets another protection in this commercial age as patrionising the supporters media and punishing the opponent media is no secreat The intention of government and opposition parties who constitute legislature at central as well as state level was clear that they did not desire to regulate the content of government advertisements The judgement is against the legislative intention But unlike England in India the legislative intention is qualified by the intention of the constitution and Supreme Court has its rare power of 142 to fulfil the intention of the Constitution

In the case of Keshavlal Khemchand^^ section 2(l)(o) of the SARFESI Act 2002 was amended in 2004 and a modified criteria for NPA was incorporated It was argued that NPA is not defined in the Act which is an essential legislative function It has been left to authorities to declare whether certain asset is NPA or not and the argument was it is a case of excessive delegation

134 Supra note 126 The unanimous verdict was delivered by of J Chelameswar J Other agreeing member was SA Bobde J The case was decided on January 28 2015


The court after discussing various cases including constitution bench cases answered as under ^

66 In our opinion the borrower cannot be heard to complain that defining of the conditions subject to which the CREDITOR could classify the account as NPA is part of the essential legislative function If the Parliament did not choose to define the expression NPA at

all Court would be bound to interpret that expression as long as that

expression occurs in Section 13(2) In such a situation Courts would

have resorted to the principles of interpretation (i) as to how that expression is understood in the commercial world and (ii) to the existing practice if any of either the particular CREDITOR or CREDITORS as a class generally If the Parliament chose to define a particular expression by providing that the expression shall have the same meaning as is assigned to such an expression by a body which is an expert in the field covered by the statute and more familiar with the subject matter of the legislation in our opinion the same does not amount to any delegation of the legislative powers Parliament is only stipulating that the expression NPA must be understood by all the CREDITORS in the same sense in which such expression is understood by the expert body ie the RBI or other REGULATORS which are in turn subject to the supervision of the RBI Therefore the submission that the amendment of the definition of the expression non- performing asset under Section 2(l)(o) is bad on account of excessive delegation of essential legislative function in our view is untenable and is required to be rejected [Emphasis Added]

The decision however highlights that essential legislative function needs more clarity and researcher should address the issues so that a clear picture emerges

VI INTERNAL AND EXTERNAL AIDS

Internal aids

In the course of interpretation the court has to take resort to internal and external aids The internal aids to construction are the parts of the enactment itself eg objective preamble long and short titles headings marginal-notes proviso exceptions etc

Preamble object and reason of Act

In the case oi Keshavlal Khemchand And Sons section 2(l)(o) of the SARFESI Act 2002 was in question It was amended in 2004 and a modified definition of NPA (non- performing asset) was given which was challenged High court (Gujarat) held it



unconstitutional on the ground that the new amendment violates objective of the enactment In the Supreme Court Justice Chelmeswar answered the matter as under

74 Before closing these matters we may also deal with one aspect of the judgment of the Gujarat High Court The Gujarat High Court

recorded that the impugned amendment is ultra vires the object of the

Act We presume for the sake of this judgment that the impugned

amendment is not strictly in consonance with the objects enunciated when the Act was initially made We fail to understand as to how such inconsistency will render the Act unconstitutional The objects and reasons are not voted upon by the legislature If the enactment is otherwise within the constitutionally permissible limits the fact that there is a divergence between the objects appended to the Bill and the tenor of the Act in our opinion cannot be a ground for declaring the law unconstitutional

External aids

Use of dictionaries

The use of dictionary as a secondary source has been useful to find the meaning of a term in question In an article Richard A Posner has observed that though judges are not consistent in use of preferred dictionaries Dictionaries have become a principle source of determining the meaning of statutes

Fiduciary relationsliip

In the case of Reserve Bank of India v Jayantilal N Mistry^^^ the issue was whether RBI possess information from Bank in fiduciary capacity or not The court took support from Blacks law Dictionary which defines fiduciary relationship thus

A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship Fiduciary relationships - such as trustee-beneficiary guardian-ward agent-principal and attorney-client - require the highest duty of care Fiduciary relationships usually arise in one of four situations (1) when one person places trust in the faithful integrity of another who as a result gains superiority or influence over the first (2) when one person assumes control and responsibility over another (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship or (4) when there is a specific relationship that has

137 Ibid

138 Richard A Posner Reflections on Judging 181 (Harward University Press 2013)

139 (2016) 3 s e c 525 Decided on Dec 16 2015

140 Id at para 59


traditionally been recognized as involving fiduciary duties as with a lawyer and a client or a stockbroker and a customer

The Corpus Juris Secundum^ attempts to define fiduciary thus

A general definition of the word which is sufficiently comprehensive to embrace all cases cannot well be given The term is derived from the civil or Roman law It connotes the idea of trust or confidence contemplates good faith rather than legal obligation as the basis of the transaction refers to the integrity the fidelity of the party trusted rather than his credit or ability and has been held to apply to all persons who occupy a position of peculiar confidence toward others and to include those informal relations which exist whenever one party trusts and relies on another as well as technical fiduciary relations

The word fiduciary as a noun means one who holds a thing in trust for another a trustee a person holding the character of a trustee or a character analogous to that of a trustee with respect to the trust and confidence involved in it and the scrupulous good faith and candor which it requires a person having the duty created by his undertaking to act primarily for anothers benefit in matters connected with such undertaking Also more specifically in a statute a guardian trustee executor administrator receiver conservator or any person acting in any fiduciary capacity for any person trust or estate Some examples of what in particular connections the term has been held to include and not to include are set out in the note

It is good that the dictionaries have been quoted But the dictionary meaning do not give illustrations Sometime it seems to be giving a confused meaning

Presume deem and show

In the case of Sher Singh Partapa v State of Haryana^^^vihexe deeming clause under 304B etc was discussed the reproduced the dictionary meaning as under

The Concise Oxford Dictionary defines the word presume as supposed to be true take for granted whereas deem as regard consider and whereas show as point out and prove The Blacks Law Dictionary (5th Edition) defines the word show as- to make apparent or clear by the evidence to prove deemed as- to hold consider adjudge believe condemn determine construed as if true presume as- to believe or accept on probable evidence and

141 Corpus Juris Secundum Vol 36A at 381 142 AIR 2015 SC 980 (2015) 3 SCC 724


Presumption in Blacks is a rule of law statutory or judicial by which finding of a basic fact gives rise to existence of presumed fact until presumption is rebutted

Burden of proof

Sher Singh (aiPartapa also discusses burden of proof The Concise Dictionary of Law Oxford gives comprehensive meaning of burden of proof which is worthy of reproduction

Burden of Proof The duty of a party to litigation to prove a fact or facts in issue Generally the burden of proof falls upon the party who substantially asserts the truth of a particular fact (the prosecution or the plaintiff)

The two types of burden is then explained as under

A distinction is drawn between the persuasive (or legal) burden which is carried by the party who as a matter of law will lose the case if he fails to prove the fact in issue and the evidential burden (burden of adducing evidence or burden of going forward) which is the duty of showing that there is sufficient evidence to raise an issue fit for the consideration of the trier of fact as to the existence or non-existence of a fact in issue

The dictionary then explains the process step by step as under ^

The normal rule is that a defendant is presumed to be innocent until he is proved guilty it is therefore the duty of the prosecution to prove its case by establishing both the actus reus of the crime and the mens rea

It must first satisfy the evidential burden to show that its allegations have something to support them If it cannot satisfy this burden the defence may submit or the judge may direct that there is no case to answer and the judge must direct the jury to acquit The prosecution may sometimes rely on presumptions of fact to satisfy the evidential burden of proof (eg the fact that a woman was subjected to violence during sexual intercourse will normally raise a presumption to support a charge of rape and prove that she did not consent) If however the prosecution has established a basis for its case it must then continue to satisfy the persuasive burden by proving its case beyond reasonable

doubt it must prove it beyond reasonable doubt if he does not give

this clear direction the defendant is entitled to be acquitted

143 Sher Singh Partapa v State ofHaryana

144 Ibid

145 Ibid


Exceptions to normal rule is also described as under

There are some exceptions to the normal rule that the burden of proof is upon the prosecution The main exceptions are as follows (1) When the defendant admits the elements of the crime (the actus reus and mens red) but pleads a special defence the evidential burden is upon him to prove his defence This may occur the example in a prosecution for murder in which the defendant raises a defence of self-defence (2) When the defendant pleads automatism the evidential burden is upon him (3) When the defendant pleads insanity both the evidential and persuasive burden rest upon him In this case however it is sufficient if he proves his case on a balance of probabilities (ie he must persuade the jury that it is more likely that he is telling the truth than not) (4) In some cases statute expressly places a persuasive burden on the defendant for example a person who carries an offensive weapon in public is guilty of an offence unless he proves that he had lawful authority or a reasonable excuse for carrying it

Way back in 1960 Glanville Williams in his classic work The Proof of Guilt

has discussed these two kinds of burden of proof With new crimes of sui generis

character like terrorism the traditional rules have been challenged and shift is towards crime control model

VII MISCELLANEOUS

Comparative law

Making of a constitution can never be an exclusive process because there is no original or unique constitution Every fundamental charter has borrowed some of its elements from the instruments of other nations Same is true for various laws especially when internet has made the access easy and almost all government are uploading there laws on websites Indian judiciary is very open to considering international laws and laws from foreign jurisdiction

In the case of Common Cause v Union oflndia^ the [misjuse of public money on politically motivated government advertisement was in issue The Supreme Court referred the provisions in Australia as suggested by the petitioner but observed that it will be not appropriate for this Court to adopt the guidelines of other country without application of mind and appreciation of situation in our country It appointed an expert committee for the purpose so that provision suitable to India may be proposed and enforced

146 Ibid

147 Glanville Williams raeProooGwft p 184 (3rd ed 1963)

148 Supra note 128


Retrospective operation

In the case of i Suseela v UGC^^^ two aspects of interpretation may be found One doctrine of legitimate expectation and two retrospective operation in context of existing rights and vested rights In this case the UGC by two resolutions^ opined that since the UGC regulations 2009^ are prospective in nature all candidates having M Phil degree on or before 10th July 2009 and all persons who obtained the PhD degree on or before 31st December 2009 and had registered themselves for the PhD before this date but are awarded such degree subsequently shall remain exempted from the requirement of NET for the purpose of appointment as LecturerAssistant Professor The Ministry of Human Resources and Development Government of India however disagreed with exemption clause^^

Petitioner argued that previously Ph D scholars were granted exemption This creates a legitimate expectation among all PhD students registered prior to central government directive of 2010 The directive of central government is said to be prospective but in effect it is retrospective because those who have enrolled for PhD or submitted PhD prior to 2010 are also affected by the 2010 directive of central government

The court discussed the argument of retrospective operation as under

14 The other interesting argument made is that such regulations should not be given retrospective effect so as to prejudicially affect the interests of any person to whom such regulation may be applicable In order to appreciate this contention it is necessary to distinguish between an existing right and a vested right ^ Where a statute operates in future it cannot be said to be retrospective merely because within the sweep of its operation all existing rights are included As observed by Buckley LJ in West v Gwynne^^ retrospective operation is one matter and interference with existing rights is another

Right to a post and right to be considered for a post

Applying this distinction of vested right and existing right the court observed

149 MANUSC02882015 SLP (CIVIL) NOS36023-36032 OF 2010 The unanimous judgement was delivered on Mar 16 2015 by Rohinton Fali Nariman J with TS Thakur as agreeing member J

150 Aug 12 2010 and Sep 27 2010

151 University Grants Commission Regulations (Minimum Qualifications Required for the Appointment And Career Advancement of Teachers in Universities and Institutions affiliated to it) (the third Amendment) Regulation 2009

152 By letter dated Nov 32010 central government informed the UGC that they were unable to agree with the decision of the commission and stated that consequently a candidate seeking appointment to the post of LecturerAssistant Professor must fulfill the minimum qualifications prescribed by the UGC including the minimum eligibility condition of having passed the NET test

153 The court referred five judges bench judgement of Trimbak Damodhar Rajpurkar v Assaram HiramanPatil 1962 Suppl 1 SCR 700

154 (1911) 2 C h i at 11 12


15 Similar is the case on facts here A vested right would arise only if any of the appellants before us had actually been appointed to the post of LecturerAssistant Professors Till that date there is no vested right

in any of the appellants At the highest the appellants could only contend that they have a right to be considered for the post of Lecturer Assistant Professor This right is always subject to minimum eligibility conditions and till such time as the appellants are appointed different conditions may be laid down at different times Merely because an additional eligibility condition in the form of a NET test is laid down it does not mean that any vested right of the appellants is affected nor does it mean that the regulation laying down such minimum eligibility condition would be retrospective in operation Such condition would only be prospective as it would apply only at the stage of appointment It is clear therefore that the contentions of the private appellants before us must fail

Suppose Al and A2 are LLM Suppose in 2005 the minimum qualification for a law teacher was LLM Against various vacancies both applied and interviewed Al was selected and A2 could not A2 kept on trying In 2010 the minimum qualification changed to LLM NET Now A2 cannot apply Was the law applicable retrospectively to A2 No because the application of the new rule do not breach any existing right of A2 Whether A2 has any right to the post or only right to be considered for the post He had no right to the post Suppose the rule is again changed and it required even Al who is LLM only to be NET Al is a law teacher He has a right to the post He has an existing right It is not an expected right If due to this rule Al is also affected it may be retrospective application and court might consider the rule Regarding A2 it is wrong to say that the new rules were applied retrospectively but it is correct to state that A2 had legitimate expectations which may be fulfilled based on existing legal position

Doctrine of legitimate expectation

The doctrine of legitimate expectation has been answered with the help of two previous judgements In the case of Union of India v International Trading

Company^^^ it was observed that the reasonableness of the legitimate expectation has to be determined with respect to the circumstances relating to the trade or business in question^ The second judgement referred was Sethi Auto Service Station v DDA^^ where it was held that i

155 (2003)5 s e c 437 156 See Parbhani Transport Coop Society Ltd v Regional Transport Authority [AIR 1960 SC 801

62 Bom LR 521] Shree Meenakshi Mills Ltd v Union of India [(1974) 1 SCC 468 AIR 1974 SC 366] Jiari ChandSarda v Mizo District Council [AIR 1967 SC 829] undKrishnanKakkanth V Govt of Kerala [(1997) 9 SCC 495 AIR 1997 SC 128

157 (2009) 1 SCC 180 158 Id at para 33


33 It is well settled that the concept of legitimate expectation has no

role to play where the State action is as a public policy or in the public

interest unless the action taken amounts to an abuse of power The court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected Therefore a legitimate expectation can

at the most be one of the grounds which may give rise to judicial

review but the granting of relief is very much limited (Vide Hindustan Development Corpn [(1993) 3 SCC 499]

The petitioner also referred University Grants Commission v Sadhana

Chaudhary ^ The court admitted that it is true that in paragraph 22 some of the very appellants before us are referred to as having a legitimate expectation in the matter of appointment to the post of Lecturer in UniversitiesColleges The court however found that this case would have no direct application here because

There a challenge was made to exemptions granted at that time to PhD holders and M Phil degree holders It was found that such exemption had a rational relation to the object sought to be achieved at that point of time being based on an intelligible differentia

The court weigh legitimate expectation and public interest and observed

Even assuming that the said judgment would continue to apply even after the 2009 Regulations a legitimate expectation must always yield

to the larger public interest The larger public interest in the present case is nothing less than having highly qualified Assistant Professors to teach in UGC Institutions Even if therefore the private appellants before us had a legitimate expectation that given the fact that the UGC granted them an exemption from the NET and continued to state that such exemption should continue to be granted even after the Government direction of 12th November 2008 would have to yield to the larger public interest of selection of the most meritorious among candidates to teach in Institutions governed by the UGC Act

Initially the court discussed the legal force of legitimate expectation which is a principle to ensure that unfairness be avoided once a promise is made The court found that the case is not a case of legitimate expectation because the petitioners had no vested right to the post Legitimate expectation should give way to public interest


Larger public interest is that meritorious candidate should join teaching profession Moreover the PhD holders are not debarred to sit in the examinations of NET which takes place twice in a year where everyone who gets a particular percentage (say 60) may qualify NET examination

State of Uttar Pradesh v United Banli of India^^ also discusses legitimate expectation as under

42 The doctrine of legitimate expectation ordinarily would not have any application when the legislature has enacted a statute The legitimate expectation should be legitimate reasonable and valid For the application of doctrine of legitimate expectation any representation or promise should be made by an authority A person unconnected with the authority who had no previous dealing and who has not entered into any transaction or negotiations with the authority cannot invoke the doctrine of legitimate expectation A person who bases his claim on the doctrine of legitimate expectation has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment

Legitimate expectation is an argument which is used in various cases once a provision of law is not followed intentionally or negligently In teaching profession especially in higher education this author has witnessed that in universities teachers are initially appointed as ad hoc faculty basis though they did not had minimum qualification like UGC-NET or 55 in post graduate or like It was said by interested officiating staff (Dean HoD or VC etc) that as it is not a permanent appointment we she may be appointed Then the faculty is appointed by a selection committee without any advertisement for the post without any application Once the faculty works for 10-15 years and someone goes to challenge the procedure as violative of article 14 and 16 (equality of opportunity in public employment) legitimate expectation and mercy argument is made before Supreme Courts Legitimate expectations can not violate the mandate of the Constitution under doctrine of equality

Doctrine of binding precedents

When the court has to interpret a law it is bound by rules of precedents While the binding nature of certain precedents have clarity there are various grey areas For example whether obiter dicta of the Supreme Court is binding on high court or not Whether judgement of a division bench is binding on another division bench of that court or not As there are no written rules but judicial decisions the courts may sometime

159 (1996) 10 s e c 536 160 MANUSC13532015 CIVIL APPEAL NO 5254 OF 2010 Nov 26 2015 Bench-MY Eqbal

C Nagappan J


commit legal error PSuseela v 6GC4s an illustration of this confusion One division bench of the Allahabad High Court has passed a judgment on April 6 2012 In 2014 another division bench passed a contradictory judgement The Supreme Court in this context laments as under

In SLP (C) NO3054-30552014 a judgment of the same High Court dated 6th January 2014 again by a Division Bench arrived at the opposite conclusion This is also a matter which causes us some distress A Division Bench judgment of the same High Court is binding on a

subsequent Division Bench The subsequent Division Bench can either

follow it or refer such judgment to the Chief Justice to constitute a

Full Bench if it differs with it We do not appreciate the manner in

which this subsequent judgment (even though it has reached the right

result) has dealt with an earlier binding Division Bench judgment of

the same High Court In fact as was pointed out to us by learned

counsel for the appellants the distinction made in paragraph 20

between the facts of the earlier judgment and the facts in the later

judgment is not a distinction at all Just as in the 2012 judgment PhD degrees had been awarded prior to 2009 even in the 2014 judgment PhD degrees with which that judgment was concerned were also granted prior to 2009 There is therefore no distinction between the facts of the two cases What is even more distressing is that only sub para 4 of the conclusion in the 2012 judgment is set out without any of the other sub paragraphs of Paragraph 104 extracted above to arrive at a result which is the exact opposite of the earlier judgment This judgment is also set aside only for the reason that it did not follow an earlier binding judgment

Sher Singh Pratapa may also be referred for not following precedents and misinterpreting previous decisions which is discussed in preceding pages


India^^ justice Kurian refers to para 149 oi Samsher Singh v State ofPunjab^^ as binding precedent on first judges case where the primacy of CJl has been held essential as under

161 MANUSC02882015

162 rf para 24

163 AIR 2016 SC 117 A constitution bench decision(4l) also caileA aamp Fourth Judgescaampe

164 (1974)2 s e c 831

165 In all conceivable cases consultation with that highest dignitary of Indian justice will and should be accepted by the government of India and the court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the minister if he departs from the counsel given by the Chief Justice of India In practice the last word in such a sensitive subject must belong to the Chief Justice of India the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order See para 149


This principle settled by a Bench of seven Judges should have been

taken as binding by the Bench dealing with the First Judges Case

which had a coram only of seven Unfortunately it held otherwise though with a majority of four against three Had there been a proper advertence to Samsher Singh case probably there would not have been any need for the Second Judges case

In Samsher Singh^ the issue was different It is doubtful whether it could be used as authority or not The judges who commit error as recognised by the Supreme Court should be made aware of their mistakes so that they could improve their understanding of law

Obiter dicta

Shreya Singhal judgement and national security

Whether Shreya singhal judgement has any national security angle The question arises because of following remarks of the Supreme Court

There are three concepts which are fundamental in understanding the reach of this most basic of human rights The first is discussion the second is advocacy and the third is incitement Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(l)(a) It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty amp integrity of India the security of the State friendly relations with foreign States etc Why it is important to have these three concepts in mind is because most of the arguments of both petitioners and respondents tended to veer around the expression public order

With everyday growing social media the advocacy of a particular idea even an idea of national disintegration can be found Glorification of terrorism killing of innocent people by terrorist on one or other justification may be easily found The passage indeed is inconsistent with provisions of Unlawful Activities (Prevention)

Act 1967 (UAPA) because it punishes support and advocacy Advocacy as well as advises are made expressly punishable under section 13 and section 8

166 (1974)2 s e c 831 167 1975 SCR (1)814 168 Unlawful Activities (Prevention) Act 1967 (2004 And 2008 AMENDMENT) s 2(1) 169 Id s 13 8


This part of judgement of Shreya Singhal is obiter and cannot be argued to declare the provisions of UAPA as unconstitutional If it is so declared there would be a void in the area of cyber terrorism

Consequence proceedings

Once it is established that legal duty was not observed and legal right was violated the consequence of the finding is next legal step which is discretionary in most of the cases In law of tort the quantum of compensation amount is one such area

Methods of compensation multiplier method or restitutio in integrum

In the case of V Krishnakumar v State of Tamil Nadutrade the court has to apply its mind for just compensation for a girl who became blind because of medical negligence To compute compensation does need interpreting facts principles precedents and law In medical negligence cases there are two methods to compute compensation One is multiplier method and other is restitutio in integrum The court noted that in cases of Balram Prasad vs Kunal Saha and Nizam s Institute of

Medical Sciences v Prashant S Dhananka ^ the Supreme Court has ruled out the computation of compensation according to the multiplier method

Quantification of compensation

The court observed that Restitutio in integrum principle has been recognised and relied on in Malay Kumar Ganguly v Sukumar Mukherjeetrade and in Balram

Prasads case in the following passage from the latter

Indisputably grant of compensation involving an accident is within the realm of law of torts It is based on the principle of restitutio in integrum The said principle provides that a person entitled to damages should as nearly as possible get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong (See Livingstone v Rawyards Coal Co)

Restitutio in integrum Meaning

The court further observed

An application of this principle is that the aggrieved person should get that sum of money which would put him in the same position if he had not sustained the wrong It must necessarily result in compensating the aggrieved person for the financial loss suffered due to the event the pain and suffering undergone and the liability that heshe would have to incur due to the disability caused by the event

170 (2015) 9 s e c 388 Civil Appeal No 8065 OF 2009 The case was decided by a division bench of Jagdish Singh Khehar J and SA Bobde J on July 1 2015

171 (2014) 1 s e c 384

172 (2009) 6 s e e 1

173 (2009) 9 s e e 221

174 W para 170


The court calculated Past Medical Expenses and Future Medical Expenses Rs4287921 Rs 13800000 respectively^ It was a case of government hospital and National Consumer Disputes Redressal Commission has awarded a compensation ofRs500000only

Meaning of particular words

Contributory and composite negligence

Law of tort is a judge made law Judiciary has ample scope and reason to interpret law and fact in the cases of tort In the case of Khenyei v New India Assurance Co

ltd bull the main question which arises for consideration is whether it is open to a claimant to recover entire compensation from one of the j oint tort feasors particularly when an accident caused by composite negligence of drivers of trailor-truck and bus has been found to 23rd and 13rd extent respectively The meaning and difference between contributory and composite negligence was discussed The court extracted the relevant portion TO Anthony v Karvaman hereunder

Composite negligence refers to the negligence on the part of two or more persons Where a person is injured as a result of negligence on the part of two or more wrong doers it is said that the person was injured on account of the composite negligence of those wrong-doers In such a case each wrong doer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them In such a case the injured need not establish the extent of responsibility of each wrongshydoer separately nor is it necessary for the court to determine the extent of liability of each wrong- doer separately On the other hand where a person suffers injury partly due to the negligence on the part of another person or persons and partly as a result of his own negligence then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence Where the injured is guilty of some negligence his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence

The court added ^

175 The formula to compute the required future amount is calculated using the standard future value formula- FV = PV x (l+r)n PV = Present Value r = rate of retumn = time period

176 (2015) 9 s e c 273 Civil Appeal No4244 OF 2015 [Arising out of SLP (C) No140152010] The case was decided by HL Dattu SA Bobde Arun Mishra JJ on May 7 2015 where Arun Mishra J delivered the verdict

177 2008 (3) s e c 748

178 Id para 7


7 Therefore when two vehicles are involved in an accident and one of the drivers claims compensation from the other driver alleging negligence and the other driver denies negligence or claims that the injured claimant himself was negligent then it becomes necessary to consider whether the injured claimant was negligent and if so whether he was solely or partly responsible for the accident and the extent of his responsibility that is his contributory negligence Therefore where the injured is himself partly liable the principle of composite negligence will not apply nor can there be an automatic inference that the negligence was 5050 as has been assumed in this case The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence The High Court has failed to correct the said error

After referring various authorities on Law of tort and precedents like Pradesh

State Road Transport Corpn v K Hemlatha^ Pawan Kumar v Harkishan Dass

Mohan Lai what emerges from the discussion is summarized as follows

(i) In the case of composite negligence plaintiffclaimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several

(ii) In the case of composite negligence apportionment of compensation between two tort feasors vis-a-vis the plaintiffclaimant is not permissible He can recover at his option whole damages from any of them

(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient it is open to the courttribunal to determine inter se extent of composite negligence of the drivers However determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiffclaimant to the extent it has satisfied the liability of the other In case both of them have been impleaded and the apportionment extent of their negligence has been determined by the courttribunal in main case one j oint tort feasor can recover the amount from the other in the execution proceedings

(iv) It would not be appropriate for the courttribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors In such a case impleaded joint

179 2008 (6) s e c 767 180 2014 (3) s e c 590


tort feasor should be left in case he so desires to sue the other joint tort feasor in independent proceedings after passing of the decree or award

These four rules would be useful for further guidance to the high courts and Supreme court when any occasion comes to explain the legal position

Fiduciary

In the case oi Reserve Bank of India v Jayantilal N Mistry^^^ the meaning of fiduciary has been referred through dictionaries and cases The court referred Bristol

and West Building Society v Mothew [ 1998 Ch 1 ] where the term fiduciary was defined thus

A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence The distinguishing obligation of a fiduciary is the obligation of loyalty A fiduciary must act in good

faith he must not make a profit out of his trust he must not place himself in a position where his duty and his interest may conflict he may not act for his own benefit or the benefit of a third person without the informed consent of his principal

The court also referred Wolf v Superior Court ^ California Appeal where the California Court of Appeals defined fiduciary relationship as under

any relationship existing between the parties to the transaction where one of the parties is duty bound to act with utmost good faith for the benefit of the other party Such a relationship ordinarily arises where confidence is reposed by one person in the integrity of another and in such a relation the party in whom the confidence is reposed if he voluntarily accepts or assumes to accept the confidence can take no advantage from his acts relating to the interests of the other party without the latters knowledge and consent

In the case oi Keshavlal Khemchand And Sons^^ section 2(l)(o) of the SARFESI Act 2002 was under challenge It was amended in 2004 and a modified criteria for NPA was incorporated This new definition of NPA was challenged on the grounds of art 14 The court deliberated on the meaning of loan creditor borrower term loan etc as under

181 (2016)3 s e c 525 182 [2003 (107) California Appeals 4th 25] 183 Reserve Bank of India v Jayantilal N Mistry para 57 184 (2015) 4 s e c 770


Loan

The expression loan though not defined under the Act has a well- settled connotation ie advancing of money by one person to another under an agreement by which the recipient of the money agrees to repay the amount on such agreed terms with regard to the time of repayment and the liability to pay interest

Definition of loan A contract of loan of money is a contact whereby one person lends or agrees to lend a sum of money to another in consideration of a promise express or implied to repay that sum on demand or at a fixed or determinable future time or conditionally upon an event which is bound to happen with or without interest^

The person advancing the money is generally called a CREDITOR and the person receiving the money is generally called a borrower The most simple form of a loan transaction is a contract by which the borrower agrees to repay the amount borrowed on demand by the creditor with such interest as stipulated under the agreement Such a loan transaction may be attended by any arrangement of a security like a mortgage or pledge etc depending upon the agreement of the parties

Term loans A loan may be made for a specified period (a term loan) In such a case repayment is due at the end of the specified period and in the absence of any express provision or implication to the contrary no further demand for repayment is necessary

Non Performing Assets (NPA)

The basic definition under the various circulars of the Reserve Bank of India and also other REGULATORS of a NPA is an asset which ceases to generate income for the CREDITORS (banks or financial institutions) ie a loan or advances made by the banks on which interest andor instalment of principal amount is overdue for a specified period depending upon the nature of the loan or advance - whether the loan or advance is a term loan or agricultural loan money advanced on bill discounting etc

A uniform NPA definition -impractical and paralysing

In the case oiKehavlal Khanchand the modified criteria for NPA was chaallenged as under

To make any attempt to define the expression non-performing asset valid for the millions of cases of loan transactions of various categories of loans and advances lent or made by different categories of CREDITORS for all time to come would not only be an impracticable

185 Chitty on Contracts p909 Vol11 30th Edn

186 Id at 913


task but could also simply paralyse the entire banking system thereby producing results which are counter productive to the object and the purpose sought to be achieved by the Act

The court termed new criteria of NPA as a mix of automany of bad to with control by RBI as under

Realising the same the Parliament left it to the Reserve Bank of India and other REGULATORS to prescribe guidelines from time to time in this regard The Reserve Bank of India is the expert body to which the responsibility of monitoring the economic system of the country is entrusted under various enactments like the RBI Act 1934 the Banking Regulation Act 1949 Various banks like the State Bank of India National Housing Bank which are though bodies created under different laws of Parliament enjoying a large amount of autonomy are still subject to the overall control of the Reserve Bank of India

Defining NPA not essential legislative function

It was argued that flexible criteria for NPA is abdication of essential legislative function

Therefore in our opinion the function of prescribing the norms for classifying a borrowers account as a NPA is not an essential legislative function The laying down of such norms requires a constant and close monitoring of the financial system demanding considerable amount of expertise in the areas of public finance banking etc and the norms may require a periodic revision All that activity involves too much of detail and promptitude of action The crux of the impugned Act is the prescription that a SECURED CREDITOR could take steps contemplated under Section 13(4) on the defaulf of the borrower The expression defaulf is clearly defined under the Act

Public policy

In the case oi Board of Control for Cricket in India v Cricket Association of

Bihar Public Policy was discussed The court observed

The expression public policy has been used in Section 23 of the Indian Contract Act 1872 and in Section 34 of the Arbitration and Conciliation Act 1996 and a host of other statutes but has not been given any precise definition primarily because the expression represents a dynamic concept and is therefore incapable of any strait-jacket definition meaning or explanation That has not however deterred jurists and Courts from explaining the expression from very early times

187 (2015)3 s e c 251 188 W para 85


The court took support from various precedents and concluded that

To sum up Pubhc Pohcy is not a static concept It varies with times and from generation to generation But what is in public good and public interest cannot be opposed to public policy and vice-versa Fundamental Policy of Law would also constitute a facet of public policy This would imply that all those principles of law that ensure justice fair play and bring transparency and objectivity and promote probity in the discharge of public functions would also constitute public policy Conversely any deviation abrogation frustration or negation of the salutary principles of justice fairness good conscience equity and objectivity will be opposed to public policy It follows that any rule contract or

arrangement that actually defeats or tends to defeat the high ideals of

fairness and objectivity in the discharge of public functions no matter

by a private nongovernmental body will be opposed to public policy

[Emphasis Added]

Applying its definition of public policy the court held as under

Applied to the case at hand Rule 624 to the extent it permits protects and even perpetuates situations where the Administrators can have commercial interests in breach or conflict with the duty they owe to the BCCI or to the people at large must be held to be against public policy hence illegal

Amendment to Rule 624 whereby the words excluding events like IPL or Champions League Twenty 20 were added to the said rule is hereby declared void and ineffective

The ratio decidendii is as under

Unfortunately however the amendment to Rule 624 clearly negates the declarations and resolves of the BCCI by permitting situations in which conflict of interest would grossly erode the confidence of the people in the authenticity purity and integrity of the game An amendment which strikes at the very essence of the game as stated in

189 Murlidhar Aggarwalv State of UP (1974)2 SCC 472 which referred to Winfields definition in Public Policy in English Common Law 42 Harvard Law Review 76 (1929) Central Inland Water Transport Corporation (supra) Oil amp Natural Gas Corporation Ltd v Saw Pipes Ltd (2003) 5 SCC 705 Oil and Natural Gas Corporation Ltd v Western GECO International Ltd (2014) 9 SCC 263

190 IPL Operational Rule 624 before amendment was in the following words No Administrators shall have directly or indirectly any commercial interest in the matches or events conducted by the Board Post amendment the words added were excluding events like IPL or Champions League Twenty 20


the Anti Corruption Code cannot obviously co-exist with the fundamental imperatives Conflict of interest situation is a complete anti-thesis to everything recognized by BCCI as constituting fundamental imperatives of the game hence unsustainable and impermissible in law

This indeed is very wide interpretation it was subjected to criticism that the court has started behaving as a reformer which is the function of the government The reformative judiciary is a welcome gesture and should continue till the legislature and government continue the conscious disregard of the constitutional provision

VIII CONCLUDING REMARKS

The survey of select cases of 2015 suggests that the Supreme Court is open to use all rules of thumb in interpretation of provisions However the indication is that plain meaning rule (literal meaning) is losing its significance In a new judgment Shri

Dilip K Basu v State ofWestBengal^^^ the court gave mandatory directions to States to set up human rights commissions though section 21 of the Protection of Human Rights Act 1993 use the words A State Government may constitute a body to be known as the (Name of the State) Human Rights Commission The court says may here means shall and Parliament used may as a matter of pure conventional

courtesy Appointment of judges is another area where plain meaning and intent of Constituent Assembly Debates has been overlooked In Fourth Judges case^ it is held that final authority of Chief Justice of India in all consultation with executive cannot be diluted It was already held in Samsher Singh v State ofPunjab^^^ but First

judges case ignored this binding precedent One of the central basis in Fourth Judges

case is the chances of misuse by executive or veto power given to NJAC member The dissenting note of Chelameswar J is from unanimous opinion of court in IR Coelho

that mere possibility of abuse is not relevant test to determine the validity of a provision Both Dilip K Basu and Fourth Judges case are influenced by purposive interpretation which is a correct approach

Constitutional validity of various provisions play chief role in reinterpretation of later cases The issue of constitutional validity of section 66A of Information technology Act 2000 came in 2013 The Government of India has issued an advisory to state governments that the arrest may not be made without prior approval of IGP DCP (metropolitan city) and SP (in district) The advisory was not considered binding due to three reasons (one it was advisory two it used the word may third any mandatory

191 (2015) 8 s e c 744

192 AIR 2016 SC 117

193 (1974)2 s e c 831

194 See advisory datedJan 9 2013


direction could be treated as encroachment in state functioning and viewed as anti-federal)^ A division bench made this advisory hingingbull

What union avoided in the guise of federal spirit was done by the Supreme Court An executive advisory to states became binding law of the land without hearing the affected parties(state here) The court has done it probably to check the misuse of state machinery to use police as an instrument to suppress the views of those against State or powerful entity Finally the judgement of Shrey a Singhaly UOI interpreted article 19 to declare 66A as unconstitutional It used the interpretative tool to read down section 79(3)(b) of Information Technology Act 2000 and Rule 3(4) The judgement can be appreciated because it answered two queries who could object to an internet content and what should be the basis of objection Certain observations raise national security concern as discussed Board of Control for Cricket in India v Cricket Association of Bihar reinforces that a provision can be challenged on the ground of public policy under article 14 A provision cannot be declared unconstitutional for violation of objective of enactment which is an internal aid to construction but is not voted as held in KeshavlalKhemchandAndSons^^^ Similarly in Rajbala^ it was held that arbitrariness cannot be a ground for declaring a primary legislation as unconstitutional because it includes value judgment and therefore refused to accept substitution of legislative wisdom through judicial opinion The judgment also makes remarks like substantial due process is not a part of India on the basis of pre Maneka Gandhi judgment which is not convincing Sher Singh Pratapa v State ofHaryana needs special mention because it rightly declares that Presumption of Innocence is not a part of fundamental right on the basis of wrong interpretation of two precedents Bhadresh Bipinbhai Sheth v State of Gujarat section 438 of Cr

195 News of police excessed and inproper arrest in case of 66A started coming from May 2012 when two Air India employees were arrested Sept 2012 two more arrest were made for writing against Chandigarh Police Ravi a business man arrested for a tweet against Karti Chidambaram in Oct 2012 Bal thackery died on Nov 17 2012 Two Mumbai girls posted on their face book why Mumbai was a type of blocked and shut down They were arrested on Nov 19 2012 PIL filed in Madras high court against 66A and notice issued on Nov 21 2012 Shreya Singhal filed a case in the Supreme Court on Nov 29 2012 Department of Electronics and Information Government of India issued an speaking advisory to State government

196 Shreya Singhal v Union of India (2013) 12 SCC 73 (2014) 1 SCC (Civ) 283 (2013) 4 SCC (Cri) 149 2013 SCC OnLine SC 476 at 75 A division bench of BS Chauhan and Deepak Mishra JJ passed following order-In the facts and circumstances of the case we direct all the StatesUnion Territories to ensure compliance with the Advisory till further orders of this Court before effecting arrest under the said Act A copy of this order be sent to the Chief Secretaries of all the States Union Territories

197 AIR 2015 SC 1523

198 (2015)3 SCC 251

199 (2015) 4 SCC 770

200 (2016) 1 SCC 463

201 2015(1) SCALE 250

202 (2016) 1 SCC 152


PC 1973 despite a penal legislation has been given liberal meaning of may if it thinks fif as it is directly associated with article 21 Dowry provisions continue to get new and different meaning Sher Singh restates the law on 304B regarding standard of proof without satisfactorily discussing that prosecution has to prove on balance of probabilities while accused has to bear a heavy burden to prove his innocence beyond reasonable doubts This is approved by three judges bench judgement in Jivendra

Kumar^ In this light Sher Singh requires reconsideration Before the precedent of Sher Singh accords the status of stare decisis judiciary should intervene A positive aspect oi Jivendra Kumar is that it refuses to give strict interpretation to dowry and denies to accept the law laid down in Appasaheb and by default Vipin Jaiswal v State

of Andhra Pradesh^^ which declared that demand of dowry is different from commercial demand or demand for domestic needs A connected commercial demand is also dowry demand In 2013 survey it was indicated that Vipin Jaiswal needs legislative modification Now it is not required because judiciary has corrected the bad law Sunil Bharti Mittal trade held that reverse alter ego principle cannot be incorporated in criminal law without statutory permission Keshavlal Khemchand And Sons^ deals with section 2(l)(o) of the SARFESI Act 2002 where a new definition of NPA was incorporated It was challenged on the ground of art 14 of the Constitution of India The court went into the parliamentary intention the concept of essential legislative function and declared it constitutional Reserve Bank of India^court has to explain the meaning and extent of fiduciary relationship in context of RTI application

P Suseela^^ discusses doctrine of legitimate expectation and proYides meaning of existing rights and vested rights The difference between Right to a post and Right to be considered for a post was one of the basis of decision State of Uttar Pradesh v United Bank oflndia^^ also states that a legitimate expectation must always yield to the larger public interest and would not have any application when the legislature has enacted a statute PSuseela and Radhey Shyam v Chhabi Nath^^ applies the doctrine of binding precedents In V Krishnakumar v State of Tamil Nadu^^^ using the maxim Restitutio in integrum the court calculated Past Medical Expenses and Future Medical Expenses in a medical compensation case and granted around Rs 2 crore

203 Also Rajinder Singh (2015) 6 SCC 477

204 (2013) 3 SCC 684 at 687-688

205 2015SCCOnLineSC 18

206 (2015) 4 SCC 770

207 (2016) 3 SCC 525

208 MANUSC02882015

209 MANUSC13532015

210 Civil Appeal No2548 OF 2009 Decided on Feb 26 2015 Bench HL Dattu AK Sikri Adarsh Kumar Goel JJ (2015) 5 SCC 423

211 (2015)9 SCC 388


In Khenyei v New India Assurance Co Itd^- the court developed four rules to explain the legal position of contributory and composite negligence

The function of the three wings of state is theoretically different which is based on principle of separation of power Executive has to execute law Among the various functions the judiciary do make law under certain circumstances (to act as guardian of the Constitution to guard fundamental rights to interpret law to settle disputes and to do complete justice) though law making is not ordinarily the job of judiciary Primary legislation is exclusive job of legislature secondary or subordinate legislation is job of executive which is delegated by legislature The Constitution has not given any power to judiciary to make law It is by virtue of the power of judiciary to interpret law that judicial legislation comes in picture as an essential unavoidable consequence of judicial process Judiciary has to enforce laws If there is law executive is primarily responsible for the enforcement of law If it fails to enforce completely or partially either because it is negligent or because of intentional omission or because of certain pressure etc one may approach judiciary for the enforcement of laws When there is no law traditional wisdom says judiciary can do nothing except equity may come for rescue In India judiciary finds three justifications for judicial legislation through interepretative process in the name of protection of fundamental rights and in PIL cases A common justification is that if there is a violation of fundamental rights of public in general and there is complete void in law the Supreme Court will exercise its power under article 32 and 142 to do complete justice Common Cause^^^ is not a case of complete void The court however has made up its mind to interfere It therefore distinguished between policy for government advertisement from policy regarding content of government advertisement Common Cause is a warning that judicial legislation is going to be increased if government and legislature do not change their attitude and continue to fail in discharging their constitutional function in time

212 (2015)9 s e c 273 213 MANUSC06042015


discretion in every decision of a case Fifth every word can have three meaning (i) of user (ii) of receiver and (iii) usual meaning Which meaning would be suitable Judges in India face similar challenges

The exclusive and final authority of giving meaning to a word or provision of law is an extraordinary power in the hands of judiciary Therefore they ought to be very careful They need to follow certain principles and rules though it is not essential that they should stick to a particular rule because meeting the ends of justice is ultimate objective Like previous years the survey of this year also indicate that the judges have used all prevalent rules of interpretation which is natural because words are not passive agents A thoughtful examination of survey on interpretation has to face two limitations One the case law on interpretation is very wide as it is not limited to constitutional or criminal or civil or property law etc Two other surveys in this work do cover various case laws under different heads Care has been taken that this survey limits itself to interpretation issues only though it is not always possible The survey is limited to the more important decisions of the Supreme Court only which could be conveniently discussed under various heads and subheads

II BASIC PRINCIPLES

Judicial decisions follow certain well recognised rules of statutory interpretation which may be called as basic principles They deal with presumptions meaning of mandatory and directory provisions liberal and strict interpretation penal and remedial statutes etc Separation of power respect for law making bodies rule of convenience etc expects the courts to begin with certain presumptions which the courts find as an uncompromising command of interpretation

Presumptions

Presumption of constitutionality

Presumption of constitutionality of a legal provision is well established The courts make it applicable through various techniques Reading into and reading down is one of the tool used in the interpretative process to save a provision from being turned down as violative of fundamental rights etc reading into means certain words are not written in the provision but the court interprets as if it is present Reading down means certain word is present in the provision but the court will not read those words to protect the provision from being declared as unconstitutional

Read down Shreya Singhal In the case oi Shreya Singhal y Union oflndia^ various provisions^ of Information

Technology Act 2000 were challenged Though the case is known for declaration of

AIR 2015SC1523A division bench of J Chelameswar Rohinton Fali Nariman JJ unanimously decided that 66A of Information Technology Act 2000 is unconstitutional (Decided on Mar 24 2015)

Information Technology Act 2000 s 66A s 69A and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules 2009 Information Technology (Intermediary Guidelines) Rules 2011 Kerala Police Act s 79 and s 118(d) was




















































12 2015 (1) SCALE 250






Validity of a law























19 (2014) 8 SCC 682

20 (1995) 1 SCC 732

21 1985 (Supp) SCC 432

22 (1983) 1 SCC 305

23 (1981) 4 SCC 675













24 (1996) 3 s e c 709

25 AIR 1957 SC 297

26 1950 SCR 88

27 AIR 1957 SC 297

28 (1969) 1 s e c 475 para 7


30 (1981) 4 SCC 675









states as under











Other presumptions














42 2015(1) SCALE 250 43 W para 11 44 (2012) 8 SCC 594









47 Id para 23


49 Supra note 42






















DK Basu case







54 Id para 6














55 (i para 9

56 AIR 1965 SC 1222

57 (2008) 12 s e c 372

58 W para 18




Nature of word may











59 Ibid


61 (1880) 5 AC 214























65 (2004) 9 SCC 362

66 (1997) 7 SCC 622


Liberal v Strict






Constitution






68 Ibid


70 (1980) 2 s e c 565











72 (2007) 9 SCC 721

73 (2013) 3 SCC 684 at 687-688


75 (2005) 4 SCC 530 547








Sunil Bharti case








79 Id at








Reverse alter ego





80 (2005) 4 s e c 530 81 Ibid




























J unanimously









entirely correct


86 (2011) 11 s e c 359

87 Id para 19


89 W para 11

















91 (2012) 11 s e e 397


93 (2013) 14 s e e 678

94 Id para 7










beyond




96 AIR 2014 SC 227

97 Id at



100 (2000) 5 s e e 207 2000 s e e (ed) 935 at 214 para 5


102 1998) 3 s e e 309








































110 [1584] EWHC Exch J36 (Jan 11584)


112 Id para 18
















113 W para 19-20



















115 Id at 529









generalis)^^









121 a p r a note 114 at 555

















122 Id at 530 123 Ibid










124 Ibid










127 Id at 790























130 Id at 15 131 W at 17


























Internal aids











External aids

Use of dictionaries





137 Ibid



140 Id at para 59













Burden of proof











144 Ibid

145 Ibid







VII MISCELLANEOUS

Comparative law



146 Ibid


148 Supra note 128










150 Aug 12 2010 and Sep 27 2010




154 (1911) 2 C h i at 11 12










157 (2009) 1 SCC 180 158 Id at para 33






















C Nagappan J
















161 MANUSC02882015

162 rf para 24


164 (1974)2 s e c 831







Obiter dicta






















171 (2014) 1 s e c 384

172 (2009) 6 s e e 1

173 (2009) 9 s e e 221

174 W para 170








The court added ^



177 2008 (3) s e c 748

178 Id para 7










179 2008 (6) s e c 767 180 2014 (3) s e c 590




Fiduciary










Loan











186 Id at 913








Public policy




187 (2015)3 s e c 251 188 W para 85







[Emphasis Added]



















191 (2015) 8 s e c 744

192 AIR 2016 SC 117

193 (1974)2 s e c 831







197 AIR 2015 SC 1523

198 (2015)3 SCC 251

199 (2015) 4 SCC 770

200 (2016) 1 SCC 463

201 2015(1) SCALE 250

202 (2016) 1 SCC 152







204 (2013) 3 SCC 684 at 687-688


206 (2015) 4 SCC 770

207 (2016) 3 SCC 525

208 MANUSC02882015

209 MANUSC13532015


211 (2015)9 SCC 388




212 (2015)9 s e c 273 213 MANUSC06042015




















































12 2015 (1) SCALE 250






Validity of a law























19 (2014) 8 SCC 682

20 (1995) 1 SCC 732

21 1985 (Supp) SCC 432

22 (1983) 1 SCC 305

23 (1981) 4 SCC 675













24 (1996) 3 s e c 709

25 AIR 1957 SC 297

26 1950 SCR 88

27 AIR 1957 SC 297

28 (1969) 1 s e c 475 para 7


30 (1981) 4 SCC 675









states as under











Other presumptions














42 2015(1) SCALE 250 43 W para 11 44 (2012) 8 SCC 594









47 Id para 23


49 Supra note 42






















DK Basu case







54 Id para 6














55 (i para 9

56 AIR 1965 SC 1222

57 (2008) 12 s e c 372

58 W para 18




Nature of word may











59 Ibid


61 (1880) 5 AC 214























65 (2004) 9 SCC 362

66 (1997) 7 SCC 622


Liberal v Strict






Constitution






68 Ibid


70 (1980) 2 s e c 565











72 (2007) 9 SCC 721

73 (2013) 3 SCC 684 at 687-688


75 (2005) 4 SCC 530 547








Sunil Bharti case








79 Id at








Reverse alter ego





80 (2005) 4 s e c 530 81 Ibid




























J unanimously









entirely correct


86 (2011) 11 s e c 359

87 Id para 19


89 W para 11

















91 (2012) 11 s e e 397


93 (2013) 14 s e e 678

94 Id para 7










beyond




96 AIR 2014 SC 227

97 Id at



100 (2000) 5 s e e 207 2000 s e e (ed) 935 at 214 para 5


102 1998) 3 s e e 309








































110 [1584] EWHC Exch J36 (Jan 11584)


112 Id para 18
















113 W para 19-20



















115 Id at 529









generalis)^^









121 a p r a note 114 at 555

















122 Id at 530 123 Ibid










124 Ibid










127 Id at 790























130 Id at 15 131 W at 17


























Internal aids











External aids

Use of dictionaries





137 Ibid



140 Id at para 59













Burden of proof











144 Ibid

145 Ibid







VII MISCELLANEOUS

Comparative law



146 Ibid


148 Supra note 128










150 Aug 12 2010 and Sep 27 2010




154 (1911) 2 C h i at 11 12










157 (2009) 1 SCC 180 158 Id at para 33






















C Nagappan J
















161 MANUSC02882015

162 rf para 24


164 (1974)2 s e c 831







Obiter dicta






















171 (2014) 1 s e c 384

172 (2009) 6 s e e 1

173 (2009) 9 s e e 221

174 W para 170








The court added ^



177 2008 (3) s e c 748

178 Id para 7










179 2008 (6) s e c 767 180 2014 (3) s e c 590




Fiduciary










Loan











186 Id at 913








Public policy




187 (2015)3 s e c 251 188 W para 85







[Emphasis Added]



















191 (2015) 8 s e c 744

192 AIR 2016 SC 117

193 (1974)2 s e c 831







197 AIR 2015 SC 1523

198 (2015)3 SCC 251

199 (2015) 4 SCC 770

200 (2016) 1 SCC 463

201 2015(1) SCALE 250

202 (2016) 1 SCC 152







204 (2013) 3 SCC 684 at 687-688


206 (2015) 4 SCC 770

207 (2016) 3 SCC 525

208 MANUSC02882015

209 MANUSC13532015


211 (2015)9 SCC 388




212 (2015)9 s e c 273 213 MANUSC06042015




























12 2015 (1) SCALE 250






Validity of a law























19 (2014) 8 SCC 682

20 (1995) 1 SCC 732

21 1985 (Supp) SCC 432

22 (1983) 1 SCC 305

23 (1981) 4 SCC 675













24 (1996) 3 s e c 709

25 AIR 1957 SC 297

26 1950 SCR 88

27 AIR 1957 SC 297

28 (1969) 1 s e c 475 para 7


30 (1981) 4 SCC 675









states as under











Other presumptions














42 2015(1) SCALE 250 43 W para 11 44 (2012) 8 SCC 594









47 Id para 23


49 Supra note 42






















DK Basu case







54 Id para 6














55 (i para 9

56 AIR 1965 SC 1222

57 (2008) 12 s e c 372

58 W para 18




Nature of word may











59 Ibid


61 (1880) 5 AC 214























65 (2004) 9 SCC 362

66 (1997) 7 SCC 622


Liberal v Strict






Constitution






68 Ibid


70 (1980) 2 s e c 565











72 (2007) 9 SCC 721

73 (2013) 3 SCC 684 at 687-688


75 (2005) 4 SCC 530 547








Sunil Bharti case








79 Id at








Reverse alter ego





80 (2005) 4 s e c 530 81 Ibid




























J unanimously









entirely correct


86 (2011) 11 s e c 359

87 Id para 19


89 W para 11

















91 (2012) 11 s e e 397


93 (2013) 14 s e e 678

94 Id para 7










beyond




96 AIR 2014 SC 227

97 Id at



100 (2000) 5 s e e 207 2000 s e e (ed) 935 at 214 para 5


102 1998) 3 s e e 309








































110 [1584] EWHC Exch J36 (Jan 11584)


112 Id para 18
















113 W para 19-20



















115 Id at 529









generalis)^^









121 a p r a note 114 at 555

















122 Id at 530 123 Ibid










124 Ibid










127 Id at 790























130 Id at 15 131 W at 17


























Internal aids











External aids

Use of dictionaries





137 Ibid



140 Id at para 59













Burden of proof











144 Ibid

145 Ibid







VII MISCELLANEOUS

Comparative law



146 Ibid


148 Supra note 128










150 Aug 12 2010 and Sep 27 2010




154 (1911) 2 C h i at 11 12










157 (2009) 1 SCC 180 158 Id at para 33






















C Nagappan J
















161 MANUSC02882015

162 rf para 24


164 (1974)2 s e c 831







Obiter dicta






















171 (2014) 1 s e c 384

172 (2009) 6 s e e 1

173 (2009) 9 s e e 221

174 W para 170








The court added ^



177 2008 (3) s e c 748

178 Id para 7










179 2008 (6) s e c 767 180 2014 (3) s e c 590




Fiduciary










Loan











186 Id at 913








Public policy




187 (2015)3 s e c 251 188 W para 85







[Emphasis Added]



















191 (2015) 8 s e c 744

192 AIR 2016 SC 117

193 (1974)2 s e c 831







197 AIR 2015 SC 1523

198 (2015)3 SCC 251

199 (2015) 4 SCC 770

200 (2016) 1 SCC 463

201 2015(1) SCALE 250

202 (2016) 1 SCC 152







204 (2013) 3 SCC 684 at 687-688


206 (2015) 4 SCC 770

207 (2016) 3 SCC 525

208 MANUSC02882015

209 MANUSC13532015


211 (2015)9 SCC 388




212 (2015)9 s e c 273 213 MANUSC06042015










12 2015 (1) SCALE 250






Validity of a law























19 (2014) 8 SCC 682

20 (1995) 1 SCC 732

21 1985 (Supp) SCC 432

22 (1983) 1 SCC 305

23 (1981) 4 SCC 675













24 (1996) 3 s e c 709

25 AIR 1957 SC 297

26 1950 SCR 88

27 AIR 1957 SC 297

28 (1969) 1 s e c 475 para 7


30 (1981) 4 SCC 675









states as under











Other presumptions














42 2015(1) SCALE 250 43 W para 11 44 (2012) 8 SCC 594









47 Id para 23


49 Supra note 42






















DK Basu case







54 Id para 6














55 (i para 9

56 AIR 1965 SC 1222

57 (2008) 12 s e c 372

58 W para 18




Nature of word may











59 Ibid


61 (1880) 5 AC 214























65 (2004) 9 SCC 362

66 (1997) 7 SCC 622


Liberal v Strict






Constitution






68 Ibid


70 (1980) 2 s e c 565











72 (2007) 9 SCC 721

73 (2013) 3 SCC 684 at 687-688


75 (2005) 4 SCC 530 547








Sunil Bharti case








79 Id at








Reverse alter ego





80 (2005) 4 s e c 530 81 Ibid




























J unanimously









entirely correct


86 (2011) 11 s e c 359

87 Id para 19


89 W para 11

















91 (2012) 11 s e e 397


93 (2013) 14 s e e 678

94 Id para 7










beyond




96 AIR 2014 SC 227

97 Id at



100 (2000) 5 s e e 207 2000 s e e (ed) 935 at 214 para 5


102 1998) 3 s e e 309








































110 [1584] EWHC Exch J36 (Jan 11584)


112 Id para 18
















113 W para 19-20



















115 Id at 529









generalis)^^









121 a p r a note 114 at 555

















122 Id at 530 123 Ibid










124 Ibid










127 Id at 790























130 Id at 15 131 W at 17


























Internal aids











External aids

Use of dictionaries





137 Ibid



140 Id at para 59













Burden of proof











144 Ibid

145 Ibid







VII MISCELLANEOUS

Comparative law



146 Ibid


148 Supra note 128










150 Aug 12 2010 and Sep 27 2010




154 (1911) 2 C h i at 11 12










157 (2009) 1 SCC 180 158 Id at para 33






















C Nagappan J
















161 MANUSC02882015

162 rf para 24


164 (1974)2 s e c 831







Obiter dicta






















171 (2014) 1 s e c 384

172 (2009) 6 s e e 1

173 (2009) 9 s e e 221

174 W para 170








The court added ^



177 2008 (3) s e c 748

178 Id para 7










179 2008 (6) s e c 767 180 2014 (3) s e c 590




Fiduciary










Loan











186 Id at 913








Public policy




187 (2015)3 s e c 251 188 W para 85







[Emphasis Added]



















191 (2015) 8 s e c 744

192 AIR 2016 SC 117

193 (1974)2 s e c 831







197 AIR 2015 SC 1523

198 (2015)3 SCC 251

199 (2015) 4 SCC 770

200 (2016) 1 SCC 463

201 2015(1) SCALE 250

202 (2016) 1 SCC 152







204 (2013) 3 SCC 684 at 687-688


206 (2015) 4 SCC 770

207 (2016) 3 SCC 525

208 MANUSC02882015

209 MANUSC13532015


211 (2015)9 SCC 388




212 (2015)9 s e c 273 213 MANUSC06042015






Validity of a law























19 (2014) 8 SCC 682

20 (1995) 1 SCC 732

21 1985 (Supp) SCC 432

22 (1983) 1 SCC 305

23 (1981) 4 SCC 675













24 (1996) 3 s e c 709

25 AIR 1957 SC 297

26 1950 SCR 88

27 AIR 1957 SC 297

28 (1969) 1 s e c 475 para 7


30 (1981) 4 SCC 675









states as under











Other presumptions














42 2015(1) SCALE 250 43 W para 11 44 (2012) 8 SCC 594









47 Id para 23


49 Supra note 42






















DK Basu case







54 Id para 6














55 (i para 9

56 AIR 1965 SC 1222

57 (2008) 12 s e c 372

58 W para 18




Nature of word may











59 Ibid


61 (1880) 5 AC 214























65 (2004) 9 SCC 362

66 (1997) 7 SCC 622


Liberal v Strict






Constitution






68 Ibid


70 (1980) 2 s e c 565











72 (2007) 9 SCC 721

73 (2013) 3 SCC 684 at 687-688


75 (2005) 4 SCC 530 547








Sunil Bharti case








79 Id at








Reverse alter ego





80 (2005) 4 s e c 530 81 Ibid




























J unanimously









entirely correct


86 (2011) 11 s e c 359

87 Id para 19


89 W para 11

















91 (2012) 11 s e e 397


93 (2013) 14 s e e 678

94 Id para 7










beyond




96 AIR 2014 SC 227

97 Id at



100 (2000) 5 s e e 207 2000 s e e (ed) 935 at 214 para 5


102 1998) 3 s e e 309








































110 [1584] EWHC Exch J36 (Jan 11584)


112 Id para 18
















113 W para 19-20



















115 Id at 529









generalis)^^









121 a p r a note 114 at 555

















122 Id at 530 123 Ibid










124 Ibid










127 Id at 790























130 Id at 15 131 W at 17


























Internal aids











External aids

Use of dictionaries





137 Ibid



140 Id at para 59













Burden of proof











144 Ibid

145 Ibid







VII MISCELLANEOUS

Comparative law



146 Ibid


148 Supra note 128










150 Aug 12 2010 and Sep 27 2010




154 (1911) 2 C h i at 11 12










157 (2009) 1 SCC 180 158 Id at para 33






















C Nagappan J
















161 MANUSC02882015

162 rf para 24


164 (1974)2 s e c 831







Obiter dicta






















171 (2014) 1 s e c 384

172 (2009) 6 s e e 1

173 (2009) 9 s e e 221

174 W para 170








The court added ^



177 2008 (3) s e c 748

178 Id para 7










179 2008 (6) s e c 767 180 2014 (3) s e c 590




Fiduciary










Loan











186 Id at 913








Public policy




187 (2015)3 s e c 251 188 W para 85







[Emphasis Added]



















191 (2015) 8 s e c 744

192 AIR 2016 SC 117

193 (1974)2 s e c 831







197 AIR 2015 SC 1523

198 (2015)3 SCC 251

199 (2015) 4 SCC 770

200 (2016) 1 SCC 463

201 2015(1) SCALE 250

202 (2016) 1 SCC 152







204 (2013) 3 SCC 684 at 687-688


206 (2015) 4 SCC 770

207 (2016) 3 SCC 525

208 MANUSC02882015

209 MANUSC13532015


211 (2015)9 SCC 388




212 (2015)9 s e c 273 213 MANUSC06042015
















19 (2014) 8 SCC 682

20 (1995) 1 SCC 732

21 1985 (Supp) SCC 432

22 (1983) 1 SCC 305

23 (1981) 4 SCC 675













24 (1996) 3 s e c 709

25 AIR 1957 SC 297

26 1950 SCR 88

27 AIR 1957 SC 297

28 (1969) 1 s e c 475 para 7


30 (1981) 4 SCC 675









states as under











Other presumptions














42 2015(1) SCALE 250 43 W para 11 44 (2012) 8 SCC 594









47 Id para 23


49 Supra note 42






















DK Basu case







54 Id para 6














55 (i para 9

56 AIR 1965 SC 1222

57 (2008) 12 s e c 372

58 W para 18




Nature of word may











59 Ibid


61 (1880) 5 AC 214























65 (2004) 9 SCC 362

66 (1997) 7 SCC 622


Liberal v Strict






Constitution






68 Ibid


70 (1980) 2 s e c 565











72 (2007) 9 SCC 721

73 (2013) 3 SCC 684 at 687-688


75 (2005) 4 SCC 530 547








Sunil Bharti case








79 Id at








Reverse alter ego





80 (2005) 4 s e c 530 81 Ibid




























J unanimously









entirely correct


86 (2011) 11 s e c 359

87 Id para 19


89 W para 11

















91 (2012) 11 s e e 397


93 (2013) 14 s e e 678

94 Id para 7










beyond




96 AIR 2014 SC 227

97 Id at



100 (2000) 5 s e e 207 2000 s e e (ed) 935 at 214 para 5


102 1998) 3 s e e 309








































110 [1584] EWHC Exch J36 (Jan 11584)


112 Id para 18
















113 W para 19-20



















115 Id at 529









generalis)^^









121 a p r a note 114 at 555

















122 Id at 530 123 Ibid










124 Ibid










127 Id at 790























130 Id at 15 131 W at 17


























Internal aids











External aids

Use of dictionaries





137 Ibid



140 Id at para 59













Burden of proof











144 Ibid

145 Ibid







VII MISCELLANEOUS

Comparative law



146 Ibid


148 Supra note 128










150 Aug 12 2010 and Sep 27 2010




154 (1911) 2 C h i at 11 12










157 (2009) 1 SCC 180 158 Id at para 33






















C Nagappan J
















161 MANUSC02882015

162 rf para 24


164 (1974)2 s e c 831







Obiter dicta






















171 (2014) 1 s e c 384

172 (2009) 6 s e e 1

173 (2009) 9 s e e 221

174 W para 170








The court added ^



177 2008 (3) s e c 748

178 Id para 7










179 2008 (6) s e c 767 180 2014 (3) s e c 590




Fiduciary










Loan











186 Id at 913








Public policy




187 (2015)3 s e c 251 188 W para 85







[Emphasis Added]



















191 (2015) 8 s e c 744

192 AIR 2016 SC 117

193 (1974)2 s e c 831







197 AIR 2015 SC 1523

198 (2015)3 SCC 251

199 (2015) 4 SCC 770

200 (2016) 1 SCC 463

201 2015(1) SCALE 250

202 (2016) 1 SCC 152







204 (2013) 3 SCC 684 at 687-688


206 (2015) 4 SCC 770

207 (2016) 3 SCC 525

208 MANUSC02882015

209 MANUSC13532015


211 (2015)9 SCC 388




212 (2015)9 s e c 273 213 MANUSC06042015













24 (1996) 3 s e c 709

25 AIR 1957 SC 297

26 1950 SCR 88

27 AIR 1957 SC 297

28 (1969) 1 s e c 475 para 7


30 (1981) 4 SCC 675









states as under











Other presumptions














42 2015(1) SCALE 250 43 W para 11 44 (2012) 8 SCC 594









47 Id para 23


49 Supra note 42






















DK Basu case







54 Id para 6














55 (i para 9

56 AIR 1965 SC 1222

57 (2008) 12 s e c 372

58 W para 18




Nature of word may











59 Ibid


61 (1880) 5 AC 214























65 (2004) 9 SCC 362

66 (1997) 7 SCC 622


Liberal v Strict






Constitution






68 Ibid


70 (1980) 2 s e c 565











72 (2007) 9 SCC 721

73 (2013) 3 SCC 684 at 687-688


75 (2005) 4 SCC 530 547








Sunil Bharti case








79 Id at








Reverse alter ego





80 (2005) 4 s e c 530 81 Ibid




























J unanimously









entirely correct


86 (2011) 11 s e c 359

87 Id para 19


89 W para 11

















91 (2012) 11 s e e 397


93 (2013) 14 s e e 678

94 Id para 7










beyond




96 AIR 2014 SC 227

97 Id at



100 (2000) 5 s e e 207 2000 s e e (ed) 935 at 214 para 5


102 1998) 3 s e e 309








































110 [1584] EWHC Exch J36 (Jan 11584)


112 Id para 18
















113 W para 19-20



















115 Id at 529









generalis)^^









121 a p r a note 114 at 555

















122 Id at 530 123 Ibid










124 Ibid










127 Id at 790























130 Id at 15 131 W at 17


























Internal aids











External aids

Use of dictionaries





137 Ibid



140 Id at para 59













Burden of proof











144 Ibid

145 Ibid







VII MISCELLANEOUS

Comparative law



146 Ibid


148 Supra note 128










150 Aug 12 2010 and Sep 27 2010




154 (1911) 2 C h i at 11 12










157 (2009) 1 SCC 180 158 Id at para 33






















C Nagappan J
















161 MANUSC02882015

162 rf para 24


164 (1974)2 s e c 831







Obiter dicta






















171 (2014) 1 s e c 384

172 (2009) 6 s e e 1

173 (2009) 9 s e e 221

174 W para 170








The court added ^



177 2008 (3) s e c 748

178 Id para 7










179 2008 (6) s e c 767 180 2014 (3) s e c 590




Fiduciary










Loan











186 Id at 913








Public policy




187 (2015)3 s e c 251 188 W para 85







[Emphasis Added]



















191 (2015) 8 s e c 744

192 AIR 2016 SC 117

193 (1974)2 s e c 831







197 AIR 2015 SC 1523

198 (2015)3 SCC 251

199 (2015) 4 SCC 770

200 (2016) 1 SCC 463

201 2015(1) SCALE 250

202 (2016) 1 SCC 152







204 (2013) 3 SCC 684 at 687-688


206 (2015) 4 SCC 770

207 (2016) 3 SCC 525

208 MANUSC02882015

209 MANUSC13532015


211 (2015)9 SCC 388




212 (2015)9 s e c 273 213 MANUSC06042015









states as under











Other presumptions














42 2015(1) SCALE 250 43 W para 11 44 (2012) 8 SCC 594









47 Id para 23


49 Supra note 42






















DK Basu case







54 Id para 6














55 (i para 9

56 AIR 1965 SC 1222

57 (2008) 12 s e c 372

58 W para 18




Nature of word may











59 Ibid


61 (1880) 5 AC 214























65 (2004) 9 SCC 362

66 (1997) 7 SCC 622


Liberal v Strict






Constitution






68 Ibid


70 (1980) 2 s e c 565











72 (2007) 9 SCC 721

73 (2013) 3 SCC 684 at 687-688


75 (2005) 4 SCC 530 547








Sunil Bharti case








79 Id at








Reverse alter ego





80 (2005) 4 s e c 530 81 Ibid




























J unanimously









entirely correct


86 (2011) 11 s e c 359

87 Id para 19


89 W para 11

















91 (2012) 11 s e e 397


93 (2013) 14 s e e 678

94 Id para 7










beyond




96 AIR 2014 SC 227

97 Id at



100 (2000) 5 s e e 207 2000 s e e (ed) 935 at 214 para 5


102 1998) 3 s e e 309








































110 [1584] EWHC Exch J36 (Jan 11584)


112 Id para 18
















113 W para 19-20



















115 Id at 529









generalis)^^









121 a p r a note 114 at 555

















122 Id at 530 123 Ibid










124 Ibid










127 Id at 790























130 Id at 15 131 W at 17


























Internal aids











External aids

Use of dictionaries





137 Ibid



140 Id at para 59













Burden of proof











144 Ibid

145 Ibid







VII MISCELLANEOUS

Comparative law



146 Ibid


148 Supra note 128










150 Aug 12 2010 and Sep 27 2010




154 (1911) 2 C h i at 11 12










157 (2009) 1 SCC 180 158 Id at para 33






















C Nagappan J
















161 MANUSC02882015

162 rf para 24


164 (1974)2 s e c 831







Obiter dicta






















171 (2014) 1 s e c 384

172 (2009) 6 s e e 1

173 (2009) 9 s e e 221

174 W para 170








The court added ^



177 2008 (3) s e c 748

178 Id para 7










179 2008 (6) s e c 767 180 2014 (3) s e c 590




Fiduciary










Loan











186 Id at 913








Public policy




187 (2015)3 s e c 251 188 W para 85







[Emphasis Added]



















191 (2015) 8 s e c 744

192 AIR 2016 SC 117

193 (1974)2 s e c 831







197 AIR 2015 SC 1523

198 (2015)3 SCC 251

199 (2015) 4 SCC 770

200 (2016) 1 SCC 463

201 2015(1) SCALE 250

202 (2016) 1 SCC 152







204 (2013) 3 SCC 684 at 687-688


206 (2015) 4 SCC 770

207 (2016) 3 SCC 525

208 MANUSC02882015

209 MANUSC13532015


211 (2015)9 SCC 388




212 (2015)9 s e c 273 213 MANUSC06042015



Other presumptions














42 2015(1) SCALE 250 43 W para 11 44 (2012) 8 SCC 594









47 Id para 23


49 Supra note 42






















DK Basu case







54 Id para 6














55 (i para 9

56 AIR 1965 SC 1222

57 (2008) 12 s e c 372

58 W para 18




Nature of word may











59 Ibid


61 (1880) 5 AC 214























65 (2004) 9 SCC 362

66 (1997) 7 SCC 622


Liberal v Strict






Constitution






68 Ibid


70 (1980) 2 s e c 565











72 (2007) 9 SCC 721

73 (2013) 3 SCC 684 at 687-688


75 (2005) 4 SCC 530 547








Sunil Bharti case








79 Id at








Reverse alter ego





80 (2005) 4 s e c 530 81 Ibid




























J unanimously









entirely correct


86 (2011) 11 s e c 359

87 Id para 19


89 W para 11

















91 (2012) 11 s e e 397


93 (2013) 14 s e e 678

94 Id para 7










beyond




96 AIR 2014 SC 227

97 Id at



100 (2000) 5 s e e 207 2000 s e e (ed) 935 at 214 para 5


102 1998) 3 s e e 309








































110 [1584] EWHC Exch J36 (Jan 11584)


112 Id para 18
















113 W para 19-20



















115 Id at 529









generalis)^^









121 a p r a note 114 at 555

















122 Id at 530 123 Ibid










124 Ibid










127 Id at 790























130 Id at 15 131 W at 17


























Internal aids











External aids

Use of dictionaries





137 Ibid



140 Id at para 59













Burden of proof











144 Ibid

145 Ibid







VII MISCELLANEOUS

Comparative law



146 Ibid


148 Supra note 128










150 Aug 12 2010 and Sep 27 2010




154 (1911) 2 C h i at 11 12










157 (2009) 1 SCC 180 158 Id at para 33






















C Nagappan J
















161 MANUSC02882015

162 rf para 24


164 (1974)2 s e c 831







Obiter dicta






















171 (2014) 1 s e c 384

172 (2009) 6 s e e 1

173 (2009) 9 s e e 221

174 W para 170








The court added ^



177 2008 (3) s e c 748

178 Id para 7










179 2008 (6) s e c 767 180 2014 (3) s e c 590




Fiduciary










Loan











186 Id at 913








Public policy




187 (2015)3 s e c 251 188 W para 85







[Emphasis Added]



















191 (2015) 8 s e c 744

192 AIR 2016 SC 117

193 (1974)2 s e c 831







197 AIR 2015 SC 1523

198 (2015)3 SCC 251

199 (2015) 4 SCC 770

200 (2016) 1 SCC 463

201 2015(1) SCALE 250

202 (2016) 1 SCC 152







204 (2013) 3 SCC 684 at 687-688


206 (2015) 4 SCC 770

207 (2016) 3 SCC 525

208 MANUSC02882015

209 MANUSC13532015


211 (2015)9 SCC 388




212 (2015)9 s e c 273 213 MANUSC06042015









47 Id para 23


49 Supra note 42






















DK Basu case







54 Id para 6














55 (i para 9

56 AIR 1965 SC 1222

57 (2008) 12 s e c 372

58 W para 18




Nature of word may











59 Ibid


61 (1880) 5 AC 214























65 (2004) 9 SCC 362

66 (1997) 7 SCC 622


Liberal v Strict






Constitution






68 Ibid


70 (1980) 2 s e c 565











72 (2007) 9 SCC 721

73 (2013) 3 SCC 684 at 687-688


75 (2005) 4 SCC 530 547








Sunil Bharti case








79 Id at








Reverse alter ego





80 (2005) 4 s e c 530 81 Ibid




























J unanimously









entirely correct


86 (2011) 11 s e c 359

87 Id para 19


89 W para 11

















91 (2012) 11 s e e 397


93 (2013) 14 s e e 678

94 Id para 7










beyond




96 AIR 2014 SC 227

97 Id at



100 (2000) 5 s e e 207 2000 s e e (ed) 935 at 214 para 5


102 1998) 3 s e e 309








































110 [1584] EWHC Exch J36 (Jan 11584)


112 Id para 18
















113 W para 19-20



















115 Id at 529









generalis)^^









121 a p r a note 114 at 555

















122 Id at 530 123 Ibid










124 Ibid










127 Id at 790























130 Id at 15 131 W at 17


























Internal aids











External aids

Use of dictionaries





137 Ibid



140 Id at para 59













Burden of proof











144 Ibid

145 Ibid







VII MISCELLANEOUS

Comparative law



146 Ibid


148 Supra note 128










150 Aug 12 2010 and Sep 27 2010




154 (1911) 2 C h i at 11 12










157 (2009) 1 SCC 180 158 Id at para 33






















C Nagappan J
















161 MANUSC02882015

162 rf para 24


164 (1974)2 s e c 831







Obiter dicta






















171 (2014) 1 s e c 384

172 (2009) 6 s e e 1

173 (2009) 9 s e e 221

174 W para 170








The court added ^



177 2008 (3) s e c 748

178 Id para 7










179 2008 (6) s e c 767 180 2014 (3) s e c 590




Fiduciary










Loan











186 Id at 913








Public policy




187 (2015)3 s e c 251 188 W para 85







[Emphasis Added]



















191 (2015) 8 s e c 744

192 AIR 2016 SC 117

193 (1974)2 s e c 831







197 AIR 2015 SC 1523

198 (2015)3 SCC 251

199 (2015) 4 SCC 770

200 (2016) 1 SCC 463

201 2015(1) SCALE 250

202 (2016) 1 SCC 152







204 (2013) 3 SCC 684 at 687-688


206 (2015) 4 SCC 770

207 (2016) 3 SCC 525

208 MANUSC02882015

209 MANUSC13532015


211 (2015)9 SCC 388




212 (2015)9 s e c 273 213 MANUSC06042015






















DK Basu case







54 Id para 6














55 (i para 9

56 AIR 1965 SC 1222

57 (2008) 12 s e c 372

58 W para 18




Nature of word may











59 Ibid


61 (1880) 5 AC 214























65 (2004) 9 SCC 362

66 (1997) 7 SCC 622


Liberal v Strict






Constitution






68 Ibid


70 (1980) 2 s e c 565











72 (2007) 9 SCC 721

73 (2013) 3 SCC 684 at 687-688


75 (2005) 4 SCC 530 547








Sunil Bharti case








79 Id at








Reverse alter ego





80 (2005) 4 s e c 530 81 Ibid




























J unanimously









entirely correct


86 (2011) 11 s e c 359

87 Id para 19


89 W para 11

















91 (2012) 11 s e e 397


93 (2013) 14 s e e 678

94 Id para 7










beyond




96 AIR 2014 SC 227

97 Id at



100 (2000) 5 s e e 207 2000 s e e (ed) 935 at 214 para 5


102 1998) 3 s e e 309








































110 [1584] EWHC Exch J36 (Jan 11584)


112 Id para 18
















113 W para 19-20



















115 Id at 529









generalis)^^









121 a p r a note 114 at 555

















122 Id at 530 123 Ibid










124 Ibid










127 Id at 790























130 Id at 15 131 W at 17


























Internal aids











External aids

Use of dictionaries





137 Ibid



140 Id at para 59













Burden of proof











144 Ibid

145 Ibid







VII MISCELLANEOUS

Comparative law



146 Ibid


148 Supra note 128










150 Aug 12 2010 and Sep 27 2010




154 (1911) 2 C h i at 11 12










157 (2009) 1 SCC 180 158 Id at para 33






















C Nagappan J
















161 MANUSC02882015

162 rf para 24


164 (1974)2 s e c 831







Obiter dicta






















171 (2014) 1 s e c 384

172 (2009) 6 s e e 1

173 (2009) 9 s e e 221

174 W para 170








The court added ^



177 2008 (3) s e c 748

178 Id para 7










179 2008 (6) s e c 767 180 2014 (3) s e c 590




Fiduciary










Loan











186 Id at 913








Public policy




187 (2015)3 s e c 251 188 W para 85







[Emphasis Added]



















191 (2015) 8 s e c 744

192 AIR 2016 SC 117

193 (1974)2 s e c 831







197 AIR 2015 SC 1523

198 (2015)3 SCC 251

199 (2015) 4 SCC 770

200 (2016) 1 SCC 463

201 2015(1) SCALE 250

202 (2016) 1 SCC 152







204 (2013) 3 SCC 684 at 687-688


206 (2015) 4 SCC 770

207 (2016) 3 SCC 525

208 MANUSC02882015

209 MANUSC13532015


211 (2015)9 SCC 388




212 (2015)9 s e c 273 213 MANUSC06042015






DK Basu case







54 Id para 6














55 (i para 9

56 AIR 1965 SC 1222

57 (2008) 12 s e c 372

58 W para 18




Nature of word may











59 Ibid


61 (1880) 5 AC 214























65 (2004) 9 SCC 362

66 (1997) 7 SCC 622


Liberal v Strict






Constitution






68 Ibid


70 (1980) 2 s e c 565











72 (2007) 9 SCC 721

73 (2013) 3 SCC 684 at 687-688


75 (2005) 4 SCC 530 547








Sunil Bharti case








79 Id at








Reverse alter ego





80 (2005) 4 s e c 530 81 Ibid




























J unanimously









entirely correct


86 (2011) 11 s e c 359

87 Id para 19


89 W para 11

















91 (2012) 11 s e e 397


93 (2013) 14 s e e 678

94 Id para 7










beyond




96 AIR 2014 SC 227

97 Id at



100 (2000) 5 s e e 207 2000 s e e (ed) 935 at 214 para 5


102 1998) 3 s e e 309








































110 [1584] EWHC Exch J36 (Jan 11584)


112 Id para 18
















113 W para 19-20



















115 Id at 529









generalis)^^









121 a p r a note 114 at 555

















122 Id at 530 123 Ibid










124 Ibid










127 Id at 790























130 Id at 15 131 W at 17


























Internal aids











External aids

Use of dictionaries





137 Ibid



140 Id at para 59













Burden of proof











144 Ibid

145 Ibid







VII MISCELLANEOUS

Comparative law



146 Ibid


148 Supra note 128










150 Aug 12 2010 and Sep 27 2010




154 (1911) 2 C h i at 11 12










157 (2009) 1 SCC 180 158 Id at para 33






















C Nagappan J
















161 MANUSC02882015

162 rf para 24


164 (1974)2 s e c 831







Obiter dicta






















171 (2014) 1 s e c 384

172 (2009) 6 s e e 1

173 (2009) 9 s e e 221

174 W para 170








The court added ^



177 2008 (3) s e c 748

178 Id para 7










179 2008 (6) s e c 767 180 2014 (3) s e c 590




Fiduciary










Loan











186 Id at 913








Public policy




187 (2015)3 s e c 251 188 W para 85







[Emphasis Added]



















191 (2015) 8 s e c 744

192 AIR 2016 SC 117

193 (1974)2 s e c 831







197 AIR 2015 SC 1523

198 (2015)3 SCC 251

199 (2015) 4 SCC 770

200 (2016) 1 SCC 463

201 2015(1) SCALE 250

202 (2016) 1 SCC 152







204 (2013) 3 SCC 684 at 687-688


206 (2015) 4 SCC 770

207 (2016) 3 SCC 525

208 MANUSC02882015

209 MANUSC13532015


211 (2015)9 SCC 388




212 (2015)9 s e c 273 213 MANUSC06042015














55 (i para 9

56 AIR 1965 SC 1222

57 (2008) 12 s e c 372

58 W para 18




Nature of word may











59 Ibid


61 (1880) 5 AC 214























65 (2004) 9 SCC 362

66 (1997) 7 SCC 622


Liberal v Strict






Constitution






68 Ibid


70 (1980) 2 s e c 565











72 (2007) 9 SCC 721

73 (2013) 3 SCC 684 at 687-688


75 (2005) 4 SCC 530 547








Sunil Bharti case








79 Id at








Reverse alter ego





80 (2005) 4 s e c 530 81 Ibid




























J unanimously









entirely correct


86 (2011) 11 s e c 359

87 Id para 19


89 W para 11

















91 (2012) 11 s e e 397


93 (2013) 14 s e e 678

94 Id para 7










beyond




96 AIR 2014 SC 227

97 Id at



100 (2000) 5 s e e 207 2000 s e e (ed) 935 at 214 para 5


102 1998) 3 s e e 309








































110 [1584] EWHC Exch J36 (Jan 11584)


112 Id para 18
















113 W para 19-20



















115 Id at 529









generalis)^^









121 a p r a note 114 at 555

















122 Id at 530 123 Ibid










124 Ibid










127 Id at 790























130 Id at 15 131 W at 17


























Internal aids











External aids

Use of dictionaries





137 Ibid



140 Id at para 59













Burden of proof











144 Ibid

145 Ibid







VII MISCELLANEOUS

Comparative law



146 Ibid


148 Supra note 128










150 Aug 12 2010 and Sep 27 2010




154 (1911) 2 C h i at 11 12










157 (2009) 1 SCC 180 158 Id at para 33






















C Nagappan J
















161 MANUSC02882015

162 rf para 24


164 (1974)2 s e c 831







Obiter dicta






















171 (2014) 1 s e c 384

172 (2009) 6 s e e 1

173 (2009) 9 s e e 221

174 W para 170








The court added ^



177 2008 (3) s e c 748

178 Id para 7










179 2008 (6) s e c 767 180 2014 (3) s e c 590




Fiduciary










Loan











186 Id at 913








Public policy




187 (2015)3 s e c 251 188 W para 85







[Emphasis Added]



















191 (2015) 8 s e c 744

192 AIR 2016 SC 117

193 (1974)2 s e c 831







197 AIR 2015 SC 1523

198 (2015)3 SCC 251

199 (2015) 4 SCC 770

200 (2016) 1 SCC 463

201 2015(1) SCALE 250

202 (2016) 1 SCC 152







204 (2013) 3 SCC 684 at 687-688


206 (2015) 4 SCC 770

207 (2016) 3 SCC 525

208 MANUSC02882015

209 MANUSC13532015


211 (2015)9 SCC 388




212 (2015)9 s e c 273 213 MANUSC06042015

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