4. Interpretation of Statutes

7/28/2019 4. Interpretation of Statutes

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1. INTRODUCTION

Governmental power has been divided into three wings namely the legislature, the executive and

the judiciary. Interpretation of statutes to render justice is the primary function of the judiciary. It

is the duty of the Court to interpret the Act and give meaning to each word of the Statute.

Statutory interpretation is the process by which courts interpret and apply legislation.

Statute generally means the law or the Act of the legislature authority. The general rule of the

interpretation is that statutes must prima facie be given this ordinary meaning. If the words are

clear, free from ambiguity there is no need to refer to other means of interpretation. But if the

words are vague and ambiguous then internal aid may be sought for interpretation. The term

interpretation means To give meaning to. Some amount of interpretation is always necessary

when a case involves a statute. Sometimes the words of a statute have a plain and straightforward

meaning. But in many cases, there is some ambiguity orvagueness in the words of the statute

that must be resolved by the judge. To find the meanings of statutes, judges use various tools and

methods of statutory interpretation, including traditional canons of statutory interpretation,

legislative history, and purpose. In common lawjurisdictions, the judiciary may apply rules of

statutory interpretation to legislation enacted by the legislature or to delegated legislation such as

administrative agency regulations.

The most common rule of interpretation is that every part of the statute must be understood in a

harmonious manner by reading and construing every part of it together. The adage A Verbis

legis non est recedendum means that you must not vary the words of the statute while

interpreting. It is notable that the general methods of statutory interpretation are not themselves

regulated by Parliament, but have been developed by the judges. The Interpretation Act 1978,

which from its title might seem to fulfill such a function, has the comparatively no ambitious aim

of providing certain standard definitions of common provisions, and thereby enables statutes to

be drafted more briefly than otherwise would be the case. Modern statutes commonly include

"definition sections" in which the meaning of words and phrases found in the statute are

explained, either comprehensively (X "means" ABC) or partially (X "includes" ABC).
http://en.wikipedia.org/wiki/Legislationhttp://en.wikipedia.org/wiki/Statutehttp://en.wikipedia.org/wiki/Ambiguityhttp://en.wikipedia.org/wiki/Vaguenesshttp://en.wikipedia.org/wiki/Common_lawhttp://en.wikipedia.org/wiki/Judiciaryhttp://en.wikipedia.org/wiki/Legislaturehttp://en.wikipedia.org/wiki/Delegated_legislationhttp://en.wikipedia.org/wiki/Regulationhttp://en.wikipedia.org/wiki/Regulationhttp://en.wikipedia.org/wiki/Delegated_legislationhttp://en.wikipedia.org/wiki/Legislaturehttp://en.wikipedia.org/wiki/Judiciaryhttp://en.wikipedia.org/wiki/Common_lawhttp://en.wikipedia.org/wiki/Vaguenesshttp://en.wikipedia.org/wiki/Ambiguityhttp://en.wikipedia.org/wiki/Statutehttp://en.wikipedia.org/wiki/Legislation


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Finally, it can be said that an Act, statutes or Code is enacted in brief. Its language is not very

detail. While applying the principles laid down in the Act, statute or Code the authority very

often finds it difficult to be sure if particular section, sub-section or clause applies to the problem

in hand or not. The authority, however, must ensure whether the alleged principle shall apply or

not. This process of applying, the principle laid down in the Act is termed as interpretation. For

example, if a person is alleged to have committed theft one has to see what are the ingredients of

the offence of theft as defined in Section 378 of the Penal Code, and whether the allegated act

falls squarely within the definition of theft or not. If it does, it is a case of theft otherwise not.1

1H.N.Tewari,Legal Research Methodology (Faridabad: Allahabad Law Agency, 1997), p.90.


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2. PRINCIPLES OF INTERPRETATION OF STATUTES

Necessity of interpretation of statute arises when a case involves a statute. The facts of principles

can be stated as like below:

One of the functions of the judiciary is to interpret and analyze the provisions of statutes in

reaching a decision or providing clarification of true meaning of the enactment.

The provisions of a statute might have a plain and straightforward meaning. But in most

cases, there is some ambiguity or vagueness in the words of the statute that must be

determined by the judge.

The judges might have to fill the gaps in statute on the footing that the legislature might be

presumed to cover such gaps.

The judiciary might interpret the statute on the basis of some established principles, and

methods, which are called principles of interpretation of statutes.

These principles are also frequently applied in interpretation of treaties concluded under

international law.2

2 M.Shah Alam, Somokalin Antojartik Ain (Contemporary International Law), 2nd ed. (Dhaka: New Warsi Book

Corporation, 2008), pp.276-82.


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3. KINDS OF INTERPRETATION OF STATUTES

The object of interpretation of statutes is to determine the intention of the legislature conveyed

expressly or impliedly in the language used. From the case of Santi swarup Sarkar v pradeep

kumar sarkar, it revealed that the Supreme Court held that if two interpretations are possible of

the same statute, the one which validates the statute must be preferred. Over time, various

methods of statutory construction have fallen in and out of favor. The notion has prevailed that

three different rules or approaches may be employed in ascertaining the meaning of a statute.

First, there is said to be the "purpose" approach or "mischief rule", then there is said to be the

"literal" approach or "plain meaning rule, and finally there is the "golden rule. These rules of

construction methods are depicted below:

The Mischief Rule

The Mischief Rule is of narrower application than the golden rule or the literal rule, in that it can

only be used to interpret a statute and, strictly speaking, only when the statute was passed to

remedy a defect in the common law. Legislative intent is determined by examining secondary

sources, such as committee reports, treatises, law review articles and corresponding statutes. The

main aim of the rule is to determine the "mischief and defect" that the statute in question has set

out to remedy, and what ruling would effectively implement this remedy. The rule was first laid

out in a 16th-century ruling of the Exchequer Court. The application of this rule gives the judge

more discretion than the literal and the golden rule as it allows him to effectively decide on

Parliament's intent. It can be argued that this undermines Parliament's supremacy and is

undemocratic as it takes law-making decisions away from the legislature.

The Literal Rule

The Plain meaning rule, also known as the literal rule, is one of three rules of statutory

construction traditionally applied by English courts. The plain meaning rule dictates that statutes

are to be interpreted using the ordinary meaning of the language of the statute, unless a statute

explicitly defines some of its terms otherwise. In other words, the law is to be read word for

word and should not divert from its ordinary meaning. The plain meaning rule is the mechanism

that underlines textualism and, to a certain extent, originalism. To avoid ambiguity, legislatures


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often include "definitions" sections within a statute, which explicitly define the most important

terms used in that statute. The plain meaning rule attempts to guide courts faced with litigation

that turns on the meaning of a term not defined by the statute, or on that of a word found within a

definition itself. According to the literal rule, absent a contrary definition within the statute,

words must be given their plain, ordinary and literal meaning. If the words are clear, they must

be applied, even though the intention of the legislator may have been different or the result is

harsh or undesirable. The literal rule is what the law says instead of what the law was intended to

say.

The Golden Rule

In law, the Golden rule, or British rule, is a form of statutory construction traditionally applied

by English courts. The golden rule allows a judge to depart from a word's normal meaning in

order to avoid an absurd result. The term "golden rule" seems to have originated in an 1854 court

ruling,3

and implies a degree of enthusiasm for this particular rule of construction over

alternative rules that have not been shared by all subsequent judges. For example, one judge

made a point of including this note in a 1940 decision: "The golden rule is that the words of a

statute must prima facie be given their ordinary meaning."4

3 Chief Justice Jervis, inMattison v. Hart, [1854], 14 C.B. 357, at p. 3854 Viscount Simon, inNokes v. Doncaster Amalgamated Collieries, [1940] A.C. 1014, at p. 1022


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4. AMENDING,CONSOLIDATING AND CODIFYING STATUTE

Amending or Repealed Statutes

New statutes and rules sometimes replace existing statutes and rules. The existing statute or rule

is revoked from the date the new statute or rules comes into force. The old statute or rule is

repealed and no longer has any force. In some cases the whole of a statute or rule is not replaced

but instead a part of it may be amended. An amending statute or rule follows the same approval

path as new statute but its objective is to amend part of a principal statute rather than replace it.

Once the principal statute is amended the amending statute no longer has any force.

Consolidating Statute

A Consolidating statute is a statute which collects the statutory provisions relating to a particular

topic, and embodies them in a single Act of parliament, making minor amendments and

improvements. The object of a consolidating statute is to present entire body of different

statutory laws on a particular subject in a complete form. A consolidating statute is not simply a

compilation of different earlier statutes, but enacted with co-ordination and for the changing

present social circumstances. Consolidating statutes can be applied any of the three forms:

without changes, with minor changes, and with amendment.

Codifying Statute

A codifying statute is a statute which states exhaustively the whole of the law upon a particular

subject. The maker of law incorporates in the enactment both the pre-existing statutory

provisions and the common law relating to the subject. The purpose of a codifying statute is to

present uniform, orderly and authoritative rules on a particular subject. When once the law has

been codified, it cannot be modified gradually from day to day, as the changing circumstances of

the community.

To conclude, the difference between a consolidating and codifying statutes are that the aim of a

consolidating statute is to enact a complete code on a particular subject by not only compilation

but also by addition but a codifying statute states exhaustively the whole of the law upon a

particular subject.


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5. RULES OF INTERPRETATION

In enactment of a consolidating Act, the presumption is that the parliament is intended to alter

the existing law. The further presumption is that the words used in the consolidating act bear the

same meaning as that of the enactment for which consolidation is made. However, if the words

have origin in different legislations, then the same meaning cannot be sustained. In case of

inconsistency between the provisions of a consolidating Act, it is pertinent to refer to different

previous enactments with reference to dates of enactment in chronological order. For the purpose

of enactment of a consolidating Act it is in order to refer to previous laws, existing laws, judicial

decisions, common law etc. Just because certain terms of a non- repealed statute are used in the

consolidating statute, it does not mean that the non-repealed statute and general laws are affected

by the consolidating statute. Several rules of interpretation are provided below:

Charging Section

The section that charges the tax must have clear words. Before taxing any individual must be

clearly establish that the person to be taxed falls within the purview of the charging section by

clear words. There is no implication of the law. If a person cannot be brought within the four

corners of the law, he is free from tax liability. There is no room for searching the intentions,

presumptions or equity.

Strict and Favorable Construction

Taxing enactment should be strictly construed and the right to tax should be clearly established.

Equitable construction should not be taken into account. Courts should not strain words and find

unnatural meaning to fill loopholes. If the provision can be interpreted in two ways, then the one

favoring the assessee must be taken into consideration.

Prospective Operation

The cardinal principle of tax laws is that the law to be applied to assessee is the law in force in

the assessment year unless otherwise provided expressly or by necessary implication. No

retrospective effect to fiscal statute is possible unless the language of the language of the statute

is very clear and plain.


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Meaning in Common Parlance

In finding out the meaning of a taxing statute, the meaning in common usage, parlance special in

commercial and trade circles must be considered. In Annapurna Biscuit Manufacturing Co. vs

Commissioner of Sales Tax, the Supreme Court held that statute imposing a tax should be

construed in the way which they are understood in ordinary language in the area in area in which

the law is the force.

Imposition of Tax by Authority of Law

The taxes and assessment can only be imposed by an authority established under a statute. The

tax can be levied only by an Act of the parliament. In Atlas Cycles Industries Ltd v State of

Haryana, the Supreme Court held that notification imposing a tax cannot be deemed to be

extended to new areas in the municipality.

Machinery Provision

Machinery provision means the procedure foe calculation and collection of tax. The person who

claims an exemption has to establish it.

No Presumption as to Tax

As regards to imposition of tax, no presumption exists. It cannot be drawn by implication or

analogical extensions. The presumption for equality and against partiality of taxation exists.

No Spirit of Law

A person is no liable to tax on the spirit of law or logic or reason.

Substance of Matter

The tax authorities must consider the legal aspect of a particular transaction for levy of tax. This

is called substance of the matter.

Court fee Act

If the court fee is high, then it affects the right of the aggrieved person to seek remedy. In

interpreting the court fee Act, the benefit of doubt always goes to the assessee.


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Double taxation

In interpreting a fiscal statute, if one meaning gives rise to double taxation and other meaning

gives rise to single taxation, then the interpretation must be in favor of single taxation.

Delayed payment of tax

Interest is levied by tax authorities on delayed payment of tax. If provision exists, such delayed

payment is valid.

In short the general rule of construction is that in case of doubt, it is decided in favor of the tax

payer even if such a decision is detrimental to the government.


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Proviso

A proviso merely carves out something from the section itself. A proviso is a subsidiary to the

main section and has to be construed in the light of the section itself. The court is not entitled to

add words to a proviso with a view to enlarge the scope.

Interpretation clause

The legislature can lay down legal definitions of its own language, if such definitions are

embodied in the statute itself, it becomes binding on the courts. When the act itself provides a

dictionary for the words used, the court must first look into that dictionary for interpretation.

Conjunctive and Disjunctive words

The word and is conjunctive and the word or is disjunctive. These words are often

interchangeable. The word and can be read as or and or can be read as and.

Gender

Words using the masculine gender is deemed to include females too.

Punctuation

Punctuation is disregarded in the construction of a statute. Punctuation cannot control, vary or

modify the plain and simple meaning of the language of the statute.

Exceptions and savings clause

To exempt certain clauses from the preview of the main provisions, and exception clause is

provided. The things which are not exempted fall within the purview of the main enactment.

The saving clause is also added in cases of repeal and re-enactment of a statute.

Schedules

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

the provisions of the express enactment. The expression in the schedule cannot override the

provisions of the express enactment.


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7. EXTERNAL AID TO INTERPRETATION OF STATUTES

Other than the internal aid to interpretation which are part of a statute itself there are other aids

which are not part of the statute. These are known as external aid to interpretation. The court can

consider recourse outside the Act such as historical settings, objects and reasons, bills, debates,

text books, dictionaries etc. Recourse to external aid is justified only to well-recognized limits.

Historical Settings

The surrounding circumstances and situations which led to the passing of the Act can be

considered for the purpose of construing a statute.

Objects and Reason

The statements and object cannot be used as an aid to construction. The statements of object and

reason are not only admissible as an aid to construction of a statute. Objects and reasons of a

statute is to be looked into as an extrinsic aid to find out the legislative intent, only when the

language is obscure or ambiguous.

Text books and Dictionaries

The use of dictionaries is limited to circumstances where the judges and Counsels use different

words. In such cases the court may make use of standard authors and well known authoritative

dictionaries. Text books may also be refereed to for assistance in finding out the true

construction of a statute.

International Conventions

International conventions are generally not resorted to for the purpose of interpretation, but it

helps as an external aid for the purpose of resolving ambiguities in the language.

Government publications

They are Reports of commissioner or committee and the other documents. Only if the above

documents are expressly referred to in the statute, they can be looked at for the purpose of

construction.


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Bill

Only when the language is ambiguous, bills can be referred.

Select Committee Report

To ascertain the legislative intent of a doubtful meaning of a statute, report of legislative

committee of the proposed law can be referred.

Debate and Proceedings of the Legislature

A speech made in the course of a debate on a bill could be referred to find out the intent of the

speaker. Speeches made in the parliament can also be referred.

History of Legislation

The history of legislation usually denotes the course of events which give rise to enactments. The

court may refer historical facts if it is necessary to understand the subject matter.

Extemporaneous Exposition

In interpreting old statutes, the construction by the judges who lived at the time of the enactment

could be referred as 9it is best to understand the intentions of the makers of the statute.

Judicial Interpretation of Words

It is an accepted principle of law that if a word has received clear judicial interpretation, then the

word is interpreted according to the judicial meaning. If definition is not given, popular meaning

must be construed.

Previous English law

It is not legal and correct to apply decisions of English acts to the construction of an Indian

statute.

Others external aids include interpretation by the executive, foreign decisions which include

policy of the legislature and government policy, purpose of the Act conventions and practices.


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8. MANDATORY AND DIRECTORY STATUTES

Whether an enactment is mandatory or directory depends on the scope and the object of the

statute. Where the enactment demands the performance of certain provision without any option

or discretion it will be called peremptory or mandatory. On the other hand if the acting authority

is vested with discretion, choice or judgment the enactment is directory.

In deciding whether the provision is directory or mandatory, one has to ascertain whether the

power is coupled with a duty of the person to whom it is given to exercise it. If so, then it is

imperative. Generally the intention of the legislature is expressed by mandatory and directory

verbs such as may, shall and must. However, sometimes the legislature uses such words

interchangeably. In such cases, the interpreter of the law has to consider the intention of the

legislature.

If two interpretations are possible then the one which preserves the constitutionality of the

particular statutory provisions should be adopted and the one which renders it unconstitutional

and void should be rejected. Non-compliance of mandatory provisions has penal consequences

where as non-compliance of directory provisions would not furnish any cause of action or

ground of challenge.

Distinction

It is one of the rules of construction that a provision is not mandatory unless non-compliance

with it is made penal (Jagannath v Jaswant singh). Mandatory provisions should be fulfilled and

obeyed exactly, whereas in case of provisions of directory enactments substantial compliance is

satisfactory.

Determination

Test for determining whether a provision in a statute is directory or mandatory. Lord Campbell

observed that there can be no universal applications as to when a statutory provisions be

regarded as merely directory and when mandatory. Maxwell says that it is impossible to lay

down any general rule for determining whether a provision is mandatory or directory. The


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supreme court of India is stressing time and again that the question whether a statute is

mandatory or directory, is not capable of generalization and that in each case the court should try

and get at the real intention of the legislature by analyzing the entire provisions of the enactment

and the scheme underlying it. In other words it depends on the intent of the legislature and not

upon the language in which the intent is clothed.

Construction

The intent of the legislature must be ascertained not only from the phraseology of the provision,

but also from its nature, design and consequences which would follow from construing it in one

form or another:

May, shall and must

The words may, shall and must should initially be deemed to have been used in their natural

and ordinary sense. May signifies permission and implies that the authority has been allowed

discretion. In state of UP v Jogendra Singh, the Supreme Court observed that there is no doubt

that the word may generally does not mean must or shall. But it is well settled that the word

may is capable of meaning must or shall in the light of context. It is also clear that when a

discretion is conferred upon a public authority coupled with an obligation, the word may

should be construed to mean a command ( Smt. Sudir Bala Roy v West Bengal).

May will have compulsory force if a requisite condition has to be filled. Cotton L.J observed

that May can never mean must but when any authority or body has a power to it by the word

May it becomes its duty to exercise that power.

Shall in the normal sense imports command. It is well settled that the use of the word shall

does not always mean that the enactment is obligatory or mandatory. It depends upon the context

in which the word shall occurs and the other circumstances. Unless an interpretation leads to

some absurd or inconvenient consequences or contradicts with the intent of the legislature the

court shall interpret the word shall in mandatory sense.

Must is doubtlessly a word of command.


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Specific Terminologies

99% of negative terms are mandatory; affirmative terms are mostly mandatory where guiding

principle for vesting of powers depends on context. In procedural statutes both negative and

affirmative are mandatory. Aids to construction for determination of the character of words can

be used.

Time Fixation

If time fixation is provided to the executive, it is supposed to be permissive with regard to the

issue of time only. However, provisions regarding time may be considered mandatory if the

intention of the legislature appears to impose literal compliance with the requirement of time.

Statutes regulating tax and election proceeding are generally considered permissive. However the

Supreme Court held in Manila mohan lal v Syed Ahamed, whenever a statute requires a

particular act to be done in a particular manner and also lays down that failure to comply will

have consequence. It would be difficult to accept the argument that the failure to comply with the

required said requirement should lead to any other consequence.


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9. ROLE OF SUPREME COURT OF BANGLADESH IN INTERPRETATION OF STATUTE

Though the legal system in Bangladesh is based on common law system as opposed to

continental system, courts here have all along adhered to the doctrine of purposive approach

wherever necessary. Unlike in the UK, this has been possible because of the absence of the

doctrine of parliamentary supremacy. Bangladesh has a written constitution with constitutional

supremacy and the constitution has invested the Supreme Court with the power of judicial

review. This power of judicial review is the source of purposive construction. It has been held

that where a plain construction will lead to absurd result and fail to carry out the purpose, the

legislature had in view; the court has the power to supply the desideratum and fill in the gap.

Likewise, an omission, which the context shows with reasonable certainty to have been

unintended, may be supplied. It has also been held that the language of a statute may be modified

by court to give effect to manifest and undoubted intention of the legislature. The safest course

for getting legislative intent is to supply the golden rule of construing an enactment as a whole.

According to Maxwell, the function of a court is to interpret a statute according to the intent of

the legislature and in doing so it must be bear in mind that its function is jus dicere, not jus

dare the words of a statute must not be overruled by the judges, but reform of the law must be

left in the hands of Parliament.In the construction of statutes, courts in Bangladesh are to

ascertain the intention of Parliament. The courts in Bangladesh are to apply the law as expressed

by the legislature.

However, the Constitution of Bangladesh has set certain norms limiting the power of Parliament

and the Constitution conferred power on the Supreme Court to oversee that Parliament in

exercising its plenary power of legislation does not transgress the limit. Thus, in spite of the clear

and unambiguous language used in the statute to keep it within the bounds set forth by the

Constitution. The Supreme Court may modify the meaning of a provision to avoid the conflict of

the statute with the provisions of the Constitution.Article 31 of our Constitution has adopted the

due process concept in general and without any limitation and properly construed article 31 of

our Constitution prohibits anything arbitrary, unreasonable or unjust. Having regard to the

provisions of article 31 of the Constitution, the courts cannot enforce a law which is arbitrary,


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10.CONCLUSION

Interpretation of statutes refers to the process by which a court looks at a statute and determines

what it means. A statute, which is a bill or law passed by the legislature, imposes obligations and

rules on the people. Statutes, however, although they make the law, may be open to

interpretation and have ambiguities. Statutory interpretation is the process of resolving those

ambiguities and deciding how a particular bill or law will apply in a particular case. While

legislators strive for clarity and precision when drafting legislation, the courts will often go to

great lengths to determine the true meaning of a statute. Statutory interpretation is an exercise

carried out by the courts, with the aid of rules and procedures that are intended to decode

ambiguous and vague legislation. It is in the interest of fairness and justice for a court to properly

apply legislation to case facts. Statutory interpretation is therefore an essential process, which

cannot be overlooked. It is easy to see why statutory interpretation might be considered a skill of

language, rather than law.

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