INTERPRETATION OF STATUTES

AN APPRAISAL ON THE CONCEPT OF NTERPRETATION

Interpretation is an incidental matter in the process of decision making; law making

may require consideration of compelling circumstances, while principles of
interpretation are applied in relevance to those circumstances. Primarily the emphasis
of interpretation is its understanding in the context for which law is enacted.

Interpretation is an important aspect relating to the understanding law. The subject is

based upon the proper application of the rules as and when required. It is such a
function that belongs exclusively to the superior courts privileged with the inherent
power of interpreting statutory laws.

The function of “law making” belongs to the legislature, while declaring “what the law
is” rests with the superior courts. Such function being inherent cannot be taken away,
unless the court is abolished, it will go on to interpret those provisions even to the
extent of those provisions which restricts or excludes its power of judicial review, all the
principles and rules are applied for a basic purpose “intent behind the law”

The process of Interpretation among others may be applied for achieving two
objectives, one is based on the principle of separation of power i.e. finding the intent
behind the law, while the other is made out of expediency i.e. adopting the laws with
changing needs of times and circumstances.

Countries following common law legacy enjoys special mention in respect to

interpretation, as the courts of such countries enjoys extensive authority of making
precedent as an indirect source of judicial legislation.

The word legislative intent though a slippery phrase is the nucleus around which the
whole process of interpretation is revolved. Sometime legislative meaning or legislative
purpose is referred in order to apply interpretive rules. The jurisprudence of
interpretation is based upon certain rules for the elucidation of legislative intent,
developed generally in the process of decision making though some of the rules finds it
source in statutory law.

The well-known fundamental principles of interpretation are universally agreed in the

jurisprudence of decision making, but certain rules principles and theories propounded
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by jurists makes a special mention as to the significance of a particular legal system. In
such a case the locally generated principles are outbreak of spontaneous growth.

The subject of interpretation like “law making” is in the process of development and
new experiences are made part of the existing principles in addition to the already
established principles and rules.

The generally agreed definition on interpretation is

“The process of finding intent behind the law”

Two interchangeable terms are normally used interpretation and the other is
construction, whose scope by definition is wider than interpretation, however
delineation is required to be made since the two may have some meeting grounds as to
the objective but differs largely in their operation.

The subject of interpretation belongs to superior courts and in our case the
constitutional courts. The superior courts perform multifarious functions as assigned to
them by the provisions of constitution and laws. Such should not be confused with
interpretation. The former entitles the court to take cognizance of a particular matter
like judicial review over legislative enactments and executive actions, while the latter
helps in determining the meaning of the provision of statute.

The traditional rules of interpretation are literal, logical and mischief rules of
interpretation. All such rules have their own significance and importance in
circumstances in which they are applied in determining the legislative intent. But to say
all these rules have their independent sphere of operation is completely flawed
understanding.

The subject is primarily aimed at the understanding of law, because enforcement of

laws will be flawed unless it is understood.

ANEES IQBAL

Law College

University of Peshawar

1. COURSE OUTLINES FOR INTERPRETATION OF STATUTES.

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1. Meaning of interpretation and statutes.

2. Introduction to interpretation.

3. Need for interpretation of laws.

5. Rules of interpretation of statutes. (kinds of Interpretation)

a. Plain meaning rule and criticism over it.

b. Logical rule of interpretation and the scope of logical rule of interpretation

c. Mischief rule of interpretation and its scope in interpretation

6. Internal aids to interpretation and construction.

The Significance and Role of Parts of statutes as aid to interpretation and construction.

7. External aids to construction.

8. Interpretation and construction

Distinguishing features of the interchangeable terms.

9. Legislative presumptions

Presupposing evidences for courts in interpretation of laws.

10. Kinds of statutes

a. General and Special statutes.

b. Temporary and Permanent statutes.

c. Consolidating and codifying statutes.

d. Penal and Remedial and Curative statutes

e. Adopting and incorporating statutes.

f. Retrospective and Prospective statutes.

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g. Supreme and subordinate statutes.

h. Repealing and amendatory statutes.

i. Substantive and Procedural statutes

11. General clauses act of 1897.

All the provisions of the general clauses act 1897.

2. REQUIRED TEXTS:

1. N.S Bindra. Interpretation of Statutes: LexisNexis Butterworth’s Publishers, 2002

2. Earl T. Crawford. Interpretation of Laws

3. S. M. Zafar. Understanding Statutes: PLD Publishers, 2002

4. General Clauses Act, 1897

5. General Clauses Act, 1956

3. PREREQUISITES FOR THE COURSE:

The requisite of the course includes understanding legislative enactments and general
principles of law.

Activities

The students are encouraged to present judgments of the supreme courts for

elaborating the concepts of interpretation.

4. NEEDS FOR INTERPRETATION

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Traditional/primary function of the court

 The judiciary shall decide cases on the basis of assessment of facts and its
independent mind of the application of law over it.

 The question arises,

1. Why interpretation,

2. Why court performs multifarious functions,

3. Whether court should be restricted to only one function of deciding

cases (application of law)

4. Or , why there is need for interpretation

Need for interpretation always arises whenever there is a question of interpretation in

cases where the law is ambiguous on the subject.

1. Means of communication of message.

A, Narration

B, Explanation

C, Interpretation

Object of interpretation is discovery of real meaning of law. (Application of law

according to legislative intent) it is an inevitable aspect of understanding law.

2. Words are imperfect symbol of communication and change its meaning

overtime.

3. Duty of legislature to imagine every possible combination of circumstances to

which its words might apply and to select words so precisely that its words may
not be misunderstood. In doing so still there is bound to be gaps and

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 complexities for which legislature has not accounted for, as it is humanly
impossible to account for all the eventualities for future.

4. Rapid growth and advancement of society requires the adaptation of laws

accordingly.

5. Legislative activity is increased in function, finds little time for detail legislation

6. Application of law with its intent and object

7. Need for interpretation arises when a law passed by the legislature comes into
direct conflict with the other, it becomes the duty of the court to reconcile the
conflict through interpretation.

5. DEFINITION ON INTERPRETATION

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The Process of determining what law means

1. The process of determining the true meaning of statute,

2. Ascertaining the legislative intent.

3. Process of discovering the true meaning of the language used

4. Interpretation is the art of finding the true sense of the words

5. The act of making intelligible what was before not understood, ambiguous or
not obvious. Method by which meaning of language is ascertained.

6. A rational activity that gives meaning to legal text. (Rationality is the key, it is an
intellectual activity)

Questions related to interpretation

1. The meaning of the text

2. The validity of the text in accordance with constitution etc.

Interpretation is concerned with normative message that arises from the text; it shapes
the content of the norm trapped inside the text.

The aforementioned definitions on interpretation are not absolute. Some writers have
defined it narrowly while the other in wider sense.

Narrow approach to interpretation

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Theorist following this approach, to them, the question of interpretation arises in the
following cases
1. Where the provision is unclear such that there are differences of opinion over it.

2. Similarly, a constrictive definition might restrict legal interpretation to finding

the meaning that realizes the intent of the legal text’s author. (Legislative intent)

Realizing the intent of the author is the goal of one system of interpretation (subjective
interpretation).

Wider sense

Every legal text requires interpretation. The plainness of a text does not obviate the
need for interpretation, because such plainness is itself a result of interpretation. Even a
text whose meaning is undisputed requires interpretation, for the absence of dispute is
a product of interpretation.

Interpretation, however, can also give the legal text a meaning that actualizes objective
standards (objective interpretation9)

Comments:-
• Interpretation requires a process to be adopted in interpretation. It is an
intellectual activity which must be justified on the applying of certain methodology.

• In interpretation true meaning could never be arrived at, since the true meaning
depicts an absolute and correct meaning. Judgments of the courts are overturned,
reinterpreted again and again for the reason of new and unforeseen situation, which
compels the courts to revisit its own interpretation. In that context using of the word
“proper meaning” would comparatively be acceptable.

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 6. Process of interpretation

 Finding or choosing the proper law/laws applicable to particular case

 Finding the intention of the legislature

 Application of the intention of the legislature so found out to cases at hand.

Intent of law

 Intent includes two concepts,

Purpose and meaning.

 Ascertaining the meaning or purpose alone will not be sufficient. Sometimes the
court strives to find out the purpose or meaning alone. But it is only a step
towards finding the legislative intent.

 The combination of the two constitutes the legislative intent.

Purpose.

Reason why a law is enacted to remedy some existing evil or to correct some defect in
the existing law, or creation of new right or remedy

Meaning

Legislative purpose is merely the reason why a law is passed, and it is instrumental
what statute interpretation shall be,
Meaning directly reveals the legislative intent; meaning is ascertained from the words
used by the legislature.
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Example

For instance law makers may enact a statue which shall make it unlawful for one to
operate a motor vehicle while the driver is intoxicated condition on public highways.

Purpose;
Protect public in use of the high ways by preventing their use by drunken drivers.

But, is this the meaning of the statute?

Meaning of the statute is discovered from the meaning of the language used
Would this provision include motor cycle? Street in a city, or person under the influence
of narcotics,

More specifically, meaning of motor vehicle, public highway, intoxication?

The court would not restrict itself to purpose as the purpose is obvious it must whether
the law meant to include a particular defendant or not while looking in to the provision
of law i.e. motor vehicle, highway intoxication.

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 7. “RULES OF INTERPRETATION

DEFINITION

“The process by which the court seeks to ascertain the meaning of legislation”
Primarily process is governed or regulated by “RULES OF INTERPRETATION”

“RULES OF INTERPRETATION”
They provide how the legislative intent is to be found out?

Rules are

1. Literal rule of ascertaining the legislative intent (general rule)

2, Logical rule of ascertaining the legislative intent (golden rule)

3, Mischief rule of ascertaining the legislative intent

1. Literal rule of ascertaining the legislative intent. (General rule)

A, verbal expressions are taken into account

B, court does not go beyond letter of law, gives ordinary dictionary meaning,

C, foremost duty of court” content itself to letter”

MAXIM “what the legislature meant, they have expressed in the forms of words”
If the words are plain, precise and unambiguous, they have to be given their plain,
natural meaning, because such will carry legislative intent (meaning and purpose)

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 5. Logical rule of ascertaining the legislative intent (golden rule)

1. Departs from the letter of law and seeks elsewhere for some other and more
satisfactory evidence of true intention and meaning of legislation

2. A default rule and is applied only where the literal meaning does not express
the legislative intent.
3. Ultimate duty of the court “to give effect to legislative intent i.e. meaning and
purposes”

4. So where one is not clearly expressed than the duty of the court to find such
intent, by moving beyond the letter of law.

5. Three kinds of defects which allows the court to apply logical rule,

6. a. Inconsistency b. Incompleteness c. Ambiguity.

7. In cases of ambiguity and inconsistency the duty of the court is to ascertain the
true meaning by logically interpreting the letter of law according to legislative intent. In
doing so, it can go beyond the letter of law.

8. In case of incompleteness the court can lawfully supply to the defects by way of
logical interpretation.

6. Mischief rule of ascertaining the legislative intent

1. It can also be termed as remedial or purposive interpretation.

2. Its main aim 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.

3. This rule of construction is of narrower application than the Golden rule or the
Plain meaning 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.

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4. 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.

5. By applying this rule the court goes into the history of the law and from their
tries to find out the true legislative intent, where the words do not indicate the
legislative intent.

Four things are discussed and considered in this rule,

1, what was the law before the passing of the act

2, what was the mischief and defect which the previous law did not provide

3 what remedy has been supplied by the legislature in the new law

4. True reason for the remedy.

Interpretation

Who interprets the provision of law and why?

Interpretation is done by the superior courts of the country “in our case the

constitutional courts”

The question arises as to why interpretation is done by the court why not some other

institution of the state, why not the legislature or the executive who are entrusted with

law making and its execution?

Whether interpretation is an independent activity?

The question itself give rise to another question that whether interpretation in an

independent activity? If it is than the same for convenience and clarity could easily be

delegated to some other institution of the state and thereby allowing the court to

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perform only one function that is resolution of disputes between litigants and nothing

else.

The function of interpretation is a dependent activity and is incidental to the process of

decision making which cannot at all be taken away from the court; it is inherent with

the passing of judgment (ZIA Ur Rahman case 1972 SC)

The important thing is that the process and rules of interpretation shall be applied

within the four corners of the primary functions of the courts i.e. maintaining a striking

balance between all the governmental departments and not going beyond their

prescribed limits by interfering in the affairs of other governmental departments

PROCESS OF INTERPRETATION

A. Finding or choosing the proper law/laws applicable to particular case

B. Finding the intention of the legislature

C. Application of the intention of the legislature so found out to cases at hand.

Intent of law

• Intent includes two concepts,

Purpose and meaning.

• Ascertaining the meaning or purpose alone will not be sufficient. Sometimes the

court strives to find out the purpose or meaning alone. But it is only a step towards

finding the legislative intent.

• The combination of the two constitutes the legislative intent.

Purpose.

Reason why a law is enacted to remedy some existing evil or to correct some defect in

the existing law, or creation of new right or remedy

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Meaning

Legislative purpose is merely the reason why a law is passed, and it is instrumental

what statute interpretation shall be,

Meaning directly reveals the legislative intent; meaning is ascertained from the words

used by the legislature.

Example

For instance law makers may enact a statue which shall make it unlawful for one to

operate a motor vehicle while the driver is intoxicated condition on public highways.

Purpose;

Protect public in use of the high ways by preventing their use by drunken drivers.

But, is this the meaning of the statute?

Meaning of the statute is discovered from the meaning of the language used

Would this provision include motor cycle? Street in a city, or person under the influence

of narcotics,

More specifically, meaning of motor vehicle, public highway, intoxication?

The court would not restrict itself to purpose as the purpose is obvious it must whether

the law meant to include a particular defendant or not while looking in to the provision

of law i.e. motor vehicle, highway intoxication.

PROCESS OF DETERMINATION OF LEGISLATIVE INTENT

DEFINITION
“The process by which the court seeks to ascertain the legislative intent”
Primarily process is governed or regulated by “RULES OF INTERPRETATION”

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“RULES OF INTERPRETATION”
They provide how the legislative intent is to be found out?

Rules of interpretation

1, Literal rule of ascertaining the legislative intent (general rule)

2, Logical rule of ascertaining the legislative intent (golden rule)

3, Mischief rule of ascertaining the legislative intent

CRITICISM ON PLAIN MEANING RULE

According to this definition every legal text requires interpretation. The plainness of a
text does not obviate the need for interpretation, because such plainness is itself a result
of interpretation. Even a text whose meaning is undisputed requires interpretation, for
the absence of dispute is a product of interpretation.

The determination that a text’s instructions are plain, and do not require interpretation,
is an interpretive determination that succeeds, rather than precedes, the interpretive act.
Characterizing a text as “unclear” is a result of the interpretive process, not an occasion
to begin it.

Courts resorting to the plain meaning rule are merely rationalizing decisions actually
based on other reasons.

The assertion that a “plain” text does not require interpretation is not only incorrect; it
is also dangerous, because it masks an unconscious act of interpretation. Indeed, the
real question is not whether a plain text requires interpretation. The real question is
what rules of interpretation are needed to arrive at the text’s plain meaning.

It is impossible to formulate a text that will be clear in every circumstance. We have yet
to find a linguistic formulation that covers every possible situation. We can, however,
formulate a text that is likely to be unclear only in a tiny number of circumstances.

Does resolving of conflict between provisions of a statute is an interpretive activity?

Resolving contradictions between two statutes on different normative planes is an

interpretive activity?
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Rule of constitutional supremacy that a statute which violates a constitutional provision
is invalid is a rule that resolves contradictions, but it is not a rule of interpretation.

Does filling in a lacuna or gap in a legal text constitute interpretive activity?

Interpretation that gives meaning to a legal text and interpretation which includes
filling gaps in an incomplete text. The justification in calling the second activity
interpretive if only in the broad sense stems from the fact that it does ultimately give
meaning to a text, determining the normative message arising from it.

APPLICATIONS OF RULES OF INTERPRETATION

A. PROVISIONS THAT MAY RECEIVE LITERAL INTERPRETATION….

1 Two Bodies Involved In The Process Of Appointment (Judicial Commission,

Parliamentary Committee).
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2. Number of members of commission and committee.

3. Issuance of process in judicial commission.

4. Decision in Judicial Commission by Majority

5. Deemed approved in case of failure of decision within 14 days by parliamentary

committee.

6. Requirement 0f 2/3 Majority To Veto The Nomination Of The Commission.

7. Principle of seniority for appointment of chief justice of Supreme Court.

8. Provision under Article 239(5) Ousting the Jurisdiction of the Supreme Court.

9. Parliament’s power of amending the constitution. Under article 239(6)

B. PROVISON WHICH REQIRED THE COURT TO INTERPRET BY

APPLYING LOGICAL MEANING

1. Nature and function of the constitutional appointing bodies.

2. In camera proceedings of the meetings of the parliamentary committee.

3. Documentation of the proceedings.

4. Sound reasons in case of rejection of nomination.

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 5. Justiciability over the decision of the committee.

6. Interpretation of indirect ouster clause under article 175 (a) clause 12.

C. PROVISONS WHICH MAY REQUIRE THE COURT TO APPLY MICHIEF

RULE OF INTERPRETATION

1. Reasons for the passing of 18th amendment

2. Reasons for the changing of the process of appointment of judges by the

parliament

3. Reasons for the inclusion of judiciary in article 6(high treason) of the

constitution.

4. Reasons for the passing of the women protection bill

7. LINGUISTIC RULES OF INTERPRETATION

These rules help on determining the meaning of individual words by drawing certain

inference. These rules may be best illustrated by maxims

1. Ejusdem generis

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Of the same genre, nature or of the same kind.

Where general words immediately follow or closely associated with words having

specific meaning, the meaning of those general words may be inferred while referring

to those associated specific words.

Not a rule of law but of construction, it enables court to ascertain the intention of the

legislature.

Object of the principle. Reconcile the incompatibility between general and specific

words

Following are the conditions for the application of the rule.

 The statute contains the enumeration of specific words.

 The members of the enumeration constitute a class or genus.

 The class is not exhausted by enumeration.

 A general term follows the list of specific words.

 The legislative intent is not clearly manifest in favor of giving broader meaning

to the general words.

2. Noscitur a sociis (“known from its associates”)

• Where a word has many meanings, the ambiguity can be resolved by the

associated words

• Consider the context: words cannot be considered in isolation. They are known

by the company they keep

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 3. Redendo singular singulus. Rendering each to each

Words in different parts of the statute must be referred to their appropriate connection, giving

each to each in its place it proper effect.

(Identical provision in the same statute, meaning of the word parliamentary committee)

4. Rule of rank,

When words descriptive of persons or things are used in order of descending by rank, than

general words at the end do not include or mean persons or things of higher rank, but of lower

rank.

5.Expressio unius est exclusio alterius ,

The express mention of one member of a list or class implicitly excludes other members

of the list or class.

8. INTERNAL AIDS TO INTERPRETATION AND CONSTRUCTION

(PARTS OF STATUTE)

 Source of legislative intent is the statute itself, since the legislation is an art in

itself, drafted in technical formula, so the act is divided into different parts, since
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 all of them are part of the bill which then is formally assented by the President of

the governor, as the case may be, so in construing an act, all parts of the it must

be taken in to account in order to understand the legislative intent.

 Framework of statute, elements that constitutes statutes, and rules that apply to

each of them, it is an accepted rule that in construing an act, significance be

attached to each component of the act in conformity with its

legislative/interpretive function

1, TITLE OF THE STATUTE

 Modern statutes contains both long and short title,

 Long title, , set out at the head of the statute, and gives fairly full description of

the general purposes of the act, and in case of ambiguity, resort may be made to

long title, however it cannot control the express operative portions of the act.

 “An Act to define and amend the law relating to certain kinds of Specific

Relief”

 Short title, it is normally a brief one, and is used only for the purpose of

reference and identification of act, and beyond that, is of no help in playing role

in interpretation.

 Number of the bill, “I of 1877”

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  It can also be interchangeably used fro reference and identification, but since

short tile is more precise and clear for reference, the same is preferred over the

number of the bill

2, PREAMBLE

 An introductory statement in the act, explaining the document basis and

objective,

 Usually starts with the word “whereas” means “considering the fact “

 “WHEREAS it is expedient to define and amend the law relating to certain kinds

of specific relief obtainable in civil suits; It is hereby enacted as follows”

 Since it is not the operative part, It cannot control the enacting part of the statute,

in cases where enacting part is stated in clear, unambiguous terms, but in case of

doubts resort may be made to it to explain the primary intention of the law

maker.

Comments

Though the preamble cannot control the provisions of the statute but the general

purpose of the statute may in view of the court, may control the provision of the statute.

3, COMMENCMENT OF STATUTE,

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  Following rules are considered in determining when an act of parliament is to

come into operation

 Section 5. General clauses act

 Coming into operation of enactments -

Where any Central Act is not expressed to come into operation on particular day, then it

shall come into operation on the day on which it receives the assent.

In the case of a Central Act made before the commencement of the Constitution, of the

governor-general, and in the case of an Act of Parliament, of the President.

Unless the contrary is expressed, (Central Act) or Regulation shall be construed as

coming into operation immediately on the expiration of the proceeding its

commencement.

The question of retrospective and prospective operation of the act is also to be

determined from the commencement clause

4, DEFINITION CLAUSE

 Words may have to be defined in particular statue in order to effectuate the

legislative intent

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  The legislature has the power to define word artificially; the meaning of a word

in definition section may either be restrictive or extensive

 MEANS RESTRICTIVE, no other meaning can be assigned to it other than given

by the legislature,

 INCLUDES EXTENSIVE, it enlarges the scope of the word.

 Object is to declare what certain words and expression used in the act shall

mean,

 Declaratory in nature and it cannot control the operative part, and governs all

cases coming within its ambit.

 Another object is to avoid repetition, of explaining a term used in number of

sections,

 Sometimes a definition may be borrowed from other acts.

 “ In this Act, unless there be something repugnant in the subject or context”

 The amendment in the definition clause does not affect the contextual meaning

given by the court to a particular provision of law, because of the restrictive

nature and effect of the definition clause.

5, SAVING CLAUSE

 Saving all the rights which the party previously had,

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  Saving the provisions of other law, by giving protection in the definition clause,

 This clause is inserted in repealing statute in order to protect or save provisions

of other laws and rights of the parties,

 Such clause may be enacted in any part of the statue either in a section to which

exception is sought or in a separate section,

 Object is to narrow the effect of the enactment so as to preserve legal rule or

rights of the parties

 specific relief act

Savings

4. Except where it is herein otherwise expressly enacted, nothing in this Act shall be

deemed-

(a) To give any right to relief in respect of any agreement which is not a contract;

(b) To deprive any person of any right to relief, other than specific performance, which he

may have under any contract; or

(c) To affect the operation of the Registration Act, 1908] on documents

6 HEADING

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 1. Modern statutes of great length, sections are divided into groups; the subject

matter of each group is indicated by a brief heading. Headings are also appended

to a separate section of law as well with the same objective.

2. They constitute a sort of preamble to the group of section, for the purpose of

connecting a section with other section in the same group, on the basis of

common subject.

3. It has limited use in interpretation because of its brief and inaccurate nature. And

it may not cover all the detailed matters falling within the scope of the section of

law, on the rationale that a section of law dealing with diverse subject cannot be

described by a one liner statement defining the general purpose of the section.

4. Like preamble it is not the operative part and cannot restrict/ control or widen

the scope of the section of law.

5. Heading are part of section but may be resorted by the court only in case of

ambiguity.

7 SECTIONS

 The division of statute into separate section is followed as practice and

convenience, without the requirement of law.

 A section may itself contain number of propositions and, therefore divided in to

subsections and paragraphs.

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  A section has only one interpretation and one scope. Every section must be

considered as a whole

 “It is elementary rule that construction of a section is made of all parts together,

it is not permissible to omit any part in construing a section. Sub section must in

construing a section be read as integral part of the section, being interdependent

on it”.

 Note, in case of constitutional provision the lawyers and judges prefer to employ

the term Article instead of section

8 PROVISOS

 It generally starts with the words “provided that”

 It is placed at the end of a section or a sub section.

 The intention of legislature is to narrow the scope of the section of law

 The proviso is added to a section for the purpose of acting as a restraint upon or

putting a qualification on the generality of the language.

 It may also be used some times to explain the general words for the purpose of

excluding some ground of misinterpretation, which if not mentioned in proviso

would be added to the cases within the purview of the section

 It has an overriding effect and controls the section or paragraph of section to

which it is annexed. Proviso in simple language may be defined as “limiting

conditioning or stipulating on the application of a particular section”.

9 EXCEPTIONS

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  The exception operates to affirm the operation of the statute to all cases except

the case mentioned in exception i.e. it exempts something which would

otherwise fall within the general words of the section.

 Normally it is annexed to a section but the legislature sometimes places it in

separate section.

10 EXPLANATIONS

 The object of adding an EXPLATION to a section is to facilitate the proper

interpretation of the section and to remove any possible confusion or

misunderstanding

 It does not add or subtract something from the operation of section, nor imposes

any restriction upon it.

 It is to be relied upon as a useful guide in construing the section.

11 ILLUSTRATIONS

 It acts as a guide to the intent of the legislature and can neither extend the

meaning nor restrict the operation of a section.

 It can only be resorted in cases of ambiguity, so it can be termed as non-operative

part of the statute.

12 SCHEDULES

 Statutes are conveniently divided into sections and schedules. Section sets out

the main principle, while the schedule contains all the more details. The section

introduces the schedule which is treated as its extension.

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  The division is made with the object that it is difficult to accommodate the

lengthy details in to section.

 Whenever there is a conflict arises between provision contained in a section and

provision contained in schedule. Following principles apply.

1. If the schedule contains merely the forms, than the section prevails over the

schedule

2. And where the schedule contains positive provisions than in case of

contradiction, schedule over the section.

3. The liability imposed in the schedule is as much binding as section itself.

9. INTERPRETATION AND CONSTRUCTION distinguished

Interpretation,

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“Process of determining (discovering) the true meaning of the language used”

Construction,

 “Drawing of conclusion with respect to subjects that are beyond the direct

expression of the text, from elements known and given in the text”.

Interpretation is resorted to when the court endeavors to ascertain the true

meaning of the word found in a statute.

 Interpretation: The activity of determining the linguistic meaning (or semantic

content) of a legal text.

 Construction: The activity of translating the semantic content of a legal text into

legal rules.

We interpret the meaning of a text, and then we construct legal rules to help us apply

the text to concrete fact situations.

 The meaning of the word ridiculing judiciary, under article 63(1) (g) and

contempt of court ordinance 2003.

 The application of the cumulative meaning of the whole text to a given facts at

hand is construction.

31
The court will resort to construction, when the court goes beyond the language of the

statute and seeks the assistance of extrinsic aids in order to determine whether a given

case falls within the statute, it resorts to construction.

Is this interpretation-construction distinction really necessary? What work does it do?

Does the distinction reflect a real and fundamental difference between different modes

of legal practice?

One way to think about these questions is to imagine what things would look like if we

didn't have the interpretation-construction distinction. What if we called everything

"interpretation" and didn't recognize construction as a distinct activity.

If courts deliberately ignore the distinction in order to make their role opaque rather

than transparent, then legal theorists can deploy the interpretation-construction

distinction in order to expose what is really going on.

10. EXTERNAL AID TO INTERPRETATION AND CONSTRUCTION

Introduction

 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.

 Resort to extrinsic aids will be made where the provision of law is ambiguous.

32
  Such extraneous sources are entitled to various degrees of weight, depending on

their reliability and their closeness to the statute itself.

 Resort may also be made even where there is no ambiguity, but for the purpose

of giving additional reasons for the purpose of adoption of the construction

reached by the court.

Why extrinsic sources are taken into consideration, when the reservoir of legislative

intent is contained in the statute itself?

The court may resort to these external aids not as a reservoir of legislative intent, but

merely as evidence or indication of legislative intent.

1, CONTEMPORARY CIRCUMSTANCES

Such circumstances include

1. History of the time when the law was enacted,

2. The previous state of the law

3. The evils intended to be corrected

 These circumstances may be described as “conditions under which the law was

passed,

33
  Usually laws of great general importance come about after long period of

agitation.

 These circumstances reveal the reason why the law was enacted. Or for the

correction of some existing evil in the law, (mischief).

2, DICTIONARIES

 Object of linguistic dictionaries is to give adequate and comprehensive meaning

of every word contained in it.

 In the absence of legislative meaning dictionaries may be resorted to resolve the

ambiguity.

 Ordinary meaning of the word cannot be discarded, because to do that would be

to discard the literal rule of interpretation.

 Dictionary meaning is not an absolute and binding source as the court is to give

the meaning to the “WORD” in reference to the context.

3, PARI MARERIA STATUTE other statutes on the same subjects

34
General principle

Each act must be understood with reference to its own provisions, but in case of

ambiguity reference may be made to earlier or later acts on the same subject matter

Basis of pari materia as aid to construction, when enacting a new law the legislature is

presumed to have in knowledge of all the existing laws on the same subject, and has

framed the new law accordingly

Examples

1. Contract act is pari materia for specific relief act.

2. Constitution is pari materia for all the acts of the state.

3. Pakistan penal code is pari materia for criminal procedure code.

4,WORK OF TEXT BOOK WRITERS

 Light may also be thrown upon meaning of from the work of text writer. The

writers do not make a law, but show more or less whether a particular principle

has been generally accepted or not.

 In case of ambiguity resort may be made to their work as evidencing the constant

practice of a particular profession.

5 JUDICIAL DECISIONS

 Earlier decisions of the court are also a reliable source in construing the provision

of law especially when the law has been uniformly applied by the courts in it

various decision.

 A precedent which stands with the test of time carries more weight, and it

requires strong reasons for reversing such precedent.

35
6 OPINIONS OF MOVERS OF BILL

 The courts resort to the opinion/motives of the mover of the bill, to throw some

light on the purposes behind the presentment of bill in the parliament.

 Courts in Pakistan have in cases referred to the opinion of the mover of bill.

 As a matter of principle court will not be influenced by the views or opinion or

motives of any or all of the members of the legislature.

7 DEBATES IN THE PARLIAMENT

 Debates in the parliament may be taken in to account, where the provision of law

is ambiguous.

 It is a general principle that debates in the parliament is not reliable aid in

construing a provision of law.

 In some instances Courts of Pakistan and India have referred to debates of the

members of the legislature

8 REPORT BY THE PARLIAMENTARY COMMITTEE’S

Reports of the parliamentary committee’s or law commission is not a reliable source in

construing the provision of law

Intention of parliament as expressed in statute cannot be controlled by the reports of the

committee or law commission.

36
9 CONSTRUCTIONS BY THE BAR

It may also be taken into consideration because of their peculiar knowledge and their

close connection with the statutory law.

10 CONSTRUCTION LONG ACQUISED

Light may also be thrown upon the meaning of an ambiguous provision of law by

taking into account the construction which for a long period of time has been put upon

it.

11 FOREIGN DECISIONS

 Resort to foreign decisions may be made in construing the provision of law,

which follows the same jurisprudence.

 Such reference to foreign decision is permissible where the decisions of the

courts in the country have proved insufficient to clarify the ambiguity.

12 INTRERNATIONAL TREATIES AND CONVENTIONS

International treaties and convention are a permissible source in cases of clarifying

ambiguity of the provision of law, especially if law is made in pursuance of such

international treaty or convention

11. LEGISLATIVE PRESUMPTIONS

37
 The act of presuming or accepting as true.

 A conclusion derived from a particular set of facts based on law, rather than

probable reasoning.

 A conclusion made as to the existence or nonexistence of a fact that must be

drawn from other evidence that certain facts are established, a judge must

assume another fact that the law recognizes as a logical conclusion from the

proof that has been introduced.

 A presumption differs from an inference, which is a conclusion that a judge or

jury may draw from the proof of certain facts if such facts would lead a

reasonable person of average intelligence to reach the same conclusion.

 A conclusive presumption is one in which the proof of certain facts makes the

existence of the assumed fact beyond dispute. The presumption cannot be

rebutted or contradicted by evidence to the contrary. For example, a child

younger than seven is presumed to be incapable of committing a felony. There

are very few conclusive presumptions because they are considered to be a

substantive rule of law, as opposed to a rule of evidence.

 A rebuttable presumption is one that can be disproved by evidence to the

contrary.

 Examples: a child born of a husband and wife living together is presumed to be

the natural child of the husband unless there is conclusive proof he is not

 A person who has disappeared and not heard from for seven years is presumed

to be dead, but the presumption could be rebutted if he/she is found alive; an

accused person is presumed innocent until proven guilty.

38
  a rule of law which permits a court to assume a fact is true until such time as

there is a preponderance (greater weight) of evidence which disproves or

outweighs (rebuts) the presumption.

1. STATUTES ARE PRESUMED TO BE VALID

 Courts to presume that Laws are intra vires, and court should make

effort to uphold laws as valid

 The validity of an act depends on the legislative competence,

irrespective of the legislative intention.

 In case of two possible interpretations of the provision of law, and one

leads to invalidity, the court must adopt in favor of the one which

make it valid.

2. LEGISLATURE IS PRESUMED TO BE REASONABLE

 That the legislature is impartial

 Protection of individual vested rights

 The significance of mens rea while convicting accused

3. LEGISLATURE DOES NOT COMMIT A MISTAKE

Parliament is traditionally recognized as competent in its own field, an ideal person at

law even though there may be serious criticism upon them.

Exact and correct words are used in statute, and it does not make mistakes

4. LEGISLATURE DOES NOT WASTE ITS WORDS

 It does not say anything in vain.

 Effect should be given to every part of statute.

 Words used are for a particular purpose.

 All parts of the statues must be given effect.

5. WORDS BE INTERPRTED IN THEIR ORDINARY SENSE

39
  Words are used in their most common/ordinary usage unless the

words technical itself.

6. LEGISLATURE KNOWS THE RULES OF GRAMMER

 Rules of grammar may be considered in interpreting the words of

law.

7. LEGISLATURE KNOWS THE LAWS, JUDICIAL DECISIONS AND

GENERAL PRINCIPLES OF LAW

 Legislature enact a law in complete knowledge of all the existing laws,

national and international

 It also keeps in mind the fundamental principles upon which law or

legal system is based

8. NO ALTERATION IN LAW IS PRESUMED

 The legislature in passing the laws does not alter the existing laws and

legal fundamental principles.

9. PRESUMPTION IN RE-ENACTMENT

 In repeating an enactment it does not alter the settled meanings,

fundamental principles or judicial constructions upon it.

10. VESTED RIGHTS

 Legislature in enacting a law does not intend to take away the vested

rights of the people.

 Absence of compensating for vested rights reinforces the

presumptions.

 Substantive laws are presumed to be prospective

11. STRICT CONSTRUCTION OF PENAL STATUTES

 statutes creating criminal offences

40
  mens rea be proved

 accused is innocent till found guilty

 a reasonable notice as to what a person must and must not do

12. PROPERTY RIGHTS

 Legislature does not take away property rights, unless

compensated for it.

 Protection of property rights is one of the fundamental values of

modern society.

13. STATUTES ARE TERRITORIAL IN OPERATION

 Dealing with a subject matter in its own territory and does not apply

extra-territorially so as to include foreigners unless contrary is proved.

14. STATUTES ARE IN CONFIRMITY WITH INTERNATIONAL LAW

 Laws are in conformity to fundamental principles of international law.

15. JURISDICTION OF COURT

 Jurisdiction is power of the court to inquire into facts and apply laws,

and make decisions

 The court can exercise such where it is expressly provided by law or

constitution.

 Like judicial review ,Appellate, revisional advisory, or pecuniary

/territorial, according to the nature of the offence,

 Jurisdiction of courts is not taken away except by express ouster

clause.

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 12. KINDS OF STATUTES

a. Temporary and Permanent statutes

 A permanent or perpetual statute is one whose operation is not limited to a

particular term of time, but which is to continues, until altered or repealed.

 Temporary statute is one whose life is fixed for a specified period of time at the
moment of its enactment, and continues in force until sooner repealed by the
legislature.

Expiry versus repeal.

1. Effect of expiry
2. Effect of repeal

Article: 89 Power of President to promulgate Ordinances

89.  Power of President to promulgate Ordinances.—(1) The President may, except

when  the 1[Senate or] National  Assembly  is  in  session,  if  satisfied that circumstances
exist which render it necessary to take immediate action, make and promulgate an
Ordinance as the circumstances may require.(2)  An Ordinance promulgated under this
Article shall have the same force and effect as an Act of 2[Majlis-e-Shoora
(Parliament)] and shall be subject to like restrictions as the power of 2[Majlis-e-Shoora
(Parliament)] to make law, but every such Ordinance–
(a)     shall be laid –
(i)  before the National Assembly if it 3[contains provisions dealing with all or any of the
matters specified in clause (2) of Article 73], and shall stand repealed at the expiration
of 4[one hundred and twenty days] from its promulgation or, if before the expiration of
that period a resolution disapproving it is passed by the Assembly, upon the passing of
that resolution4 [ : ]

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1
[264.  Effect of repeal of laws.]—Where a law is repealed, or is deemed to have been
repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as
otherwise provided in the Constitution,—
(a)  Revive anything not in force or existing at the time at which the repeal takes effect;

(b)  Affect the previous operation of the law or anything duly done or suffered under

the law;

(c)  Affect any right, privilege, obligation or liability acquired, accrued or incurred

under the law;

(d)  Affect any penalty, forfeiture or punishment incurred in respect of any offence

committed against the law; or

(e)  Affect any investigation, legal proceeding or remedy in respect of any such right,

privilege, obligation, liability, penalty, forfeiture or punishment;

And any such investigation, legal proceeding or remedy may be instituted, continued or

enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law

had not been repealed.

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 b. DIRECTORY AND MANDATORY STATUTES

MANDATORY PROVISIONS, MEANING….

 'Mandatory' include 'absolute', 'obligatory', 'imperative', and 'strict'.

 'Directory', the term 'permissive' is used.

In addition to the doing of the thing, the provisions also contains the effect of non-
compliance.

As a general rule a statute is understood to be directory when it contains matters merely

of direction but it is mandatory when those directions are followed by an express
provision that in default of following them the facts shall be null and void.

Principles of interpreting DIRECTORY AND MANDATORY STATUTES

1. Validity of the act done.

The consequence of the action will be Null and void if mandatory

The act will remain valid even if the exact compliance of the conditions is not made
directory.

2. Degree of compliance

If exact compliance of the conditions is prescribed, mandatory

If substantial compliance of the conditions is prescribed, directory

Sometimes the provision contains the combination of both directory and mandatory
provisions.

Mode of deposit of fee is directory, amount to be deposited is mandatory.

3. USE OF NEGATIVE LANGUAGE

In no other but the manner in which it is prescribed. Mandatory.

Solemnization of marriage, the language though is couched with negative intent but the
breach of condition does not render the marriage void.

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 4. USE OF WORDS SHALL AND MAY

The general rule where word may is used, the provision is taken as directory, while for
the word shall, the provision is taken as directory.

OTHER PRINCIPLES RELATING TO DIRECTORY AND MANDATORY

PROVISIONS.

 FOR PROCEDUARAL STATUTES

If the non-compliance of procedural provisions thwarts the fair hearing, the statute is
than mandatory.

 EXERCISE OF JUDICIAL DISCRETION, IS DIRECTORY.

 NO LAW CAN BE STRICTLY DEFINED AS MANDATORY OR DIRECTROY

STATUTE.

Determination is made by looking into the provisions of law and finding legislative
intent therefrom.

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 c. Retrospective and Prospective of Statute

Section 6 Effect of repeal

Where this Act, or any (Central Act) or Regulation made after the commencement of

this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a

different intention appears, the repeal shall not-

(a)  Revive anything not in force or existing at the time at which the repeal takes effect;

(b)  Affect the previous operation of the law or anything duly done or suffered under

the law;

(c)  Affect any right, privilege, obligation or liability acquired, accrued or incurred

under the law;

(d)  Affect any penalty, forfeiture or punishment incurred in respect of any offence

committed against the law; or

(e)  Affect any investigation, legal proceeding or remedy in respect of any such right,

privilege, obligation, liability, penalty, forfeiture or punishment;

And any such investigation, legal proceeding or remedy may be instituted, continued or

enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law

had not been repealed

1
[264.  Effect of repeal of laws.]—Where a law is repealed, or is deemed to have been

repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as

otherwise provided in the Constitution,—

(a)  Revive anything not in force or existing at the time at which the repeal takes effect;

46
(b)  Affect the previous operation of the law or anything duly done or suffered under

the law;

(c)  Affect any right, privilege, obligation or liability acquired, accrued or incurred

under the law;

(d)  Affect any penalty, forfeiture or punishment incurred in respect of any offence

committed against the law; or

(e)  Affect any investigation, legal proceeding or remedy  in respect of any such right,

privilege, obligation, liability, penalty, forfeiture or punishment;

And any such investigation, legal proceeding or remedy may be instituted, continued or

enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law

had not been repealed.

Constitutional restraint on the legislative power to give laws retrospective effect

12. Protection against retrospective punishment.-(1) No law shall authorize the

punishment of a person-

(a) For an act or omission that was not punishable by law at the time of the act or

omission; or

(b) For an offence by a penalty greater than, or of a kind different from, the penalty

prescribed by law for that offence at the time the offence was committed.

47
 d. Delegated legislation

Governmental powers are divided among three departments of the government, and
one is constitutionally restrained by interfering into other’s sphere.

Legislative power of the government is exclusively vested in the legislature.

General rule, legislature cannot surrender or abdicate such power, any attempt to do so
will be unconstitutional, and void.

Nor the same power can be transferred or delegated by the legislature to any other
body.

delegatus non potest delegare, “one to whom power is delegated cannot himself further
delegate that power”

A power not legislative in character may thus be delegated. A power pure in legislative
nature, its delegation is unconstitutional.

There must be a principal act set out the policy/guidelines which is to control the power
to frame rules /regulation under it. The principal act must not be too indefinite or
general.

It must be sufficient enough to guide the administrative official or board like

Examples “as far as reasonable and practicable under the circumstances existing” or
“reasonable and in the interest of public”

As a general rule, it is the nature of the power rather than the manner in which it is
exercised by the delegate which determines whether such is lawful or not. Most
prominent are the powers to,

1. Power to ascertain facts.

One of the contingencies upon which the operation of the statute depends is the
ascertainment of facts, upon which the operation of law is based afterwards. It’s not a
legislative function; it’s more of administrative in nature.

48
A discretion may also be vested comes within the rules established by statute imposing
certain prohibition.

2. Power to make “rules and regulation”.

Rules, the details of the general guidelines provided by the parent act, (Rules of civil
procedure code)

(Regulation, Regulation is administrative legislation  to set the law into motion, how it
is to be operative, tobacco, its manufacture, sale, taxes, motor vehicles, its maintenance,
use etc.).

1. The act of regulating or the state of being regulated.

2. A principle, rule, or law designed to control or govern conduct.

3. A governmental order having the force of law. Also called executive order.

 Common examples of regulation include controls on market

entries, prices, wages, Development approvals, pollution effects, employment for
certain people in certain industries, standards of production for certain goods, the
military forces and services. 

The legislature may delegate the power to frame rules and regulation, so long as such
are made within the prescribed limits of the parent act

There is a clear distinction between the power to make laws and the conferring of
authority or discretion to be exercised in pursuance of such law, as the power to make
laws shall also include a discretion as to what law shall be.

. An authority to carry out an express legislative purpose is not a power exclusively of

legislative character, but rather administrative in its nature.

67. Rules of procedure, etc.-(1) Subject to the Constitution, a House may make rules for
regulating its procedure and the conduct of its business, and shall have power to act
notwithstanding any vacancy in the membership thereof, and any proceedings in the
House shall not be invalid on the ground that some persons who were not entitled to do
so sat, voted or otherwise took part in the proceedings.

49
(2) Until rules are made under clause (1), the procedure and conduct of business in a
House shall be regulated by the rules of procedure made by the President.

187. Issue and execution of processes of Supreme Court.-(1) 1[Subject to clause (2) of
Article 175, the] Supreme Court shall have power to issue such directions, orders or
decrees as may be necessary for doing complete justice in any case or matter pending
before it, including an order for the purpose of securing the attendance of any person or
the discovery or production of any document.
(2) Any such direction, order or decree shall be enforceable throughout Pakistan and
shall, where it is to be executed in a Province, or a territory or an area not forming part
of a Province but within the jurisdiction of the High Court of the Province, be executed
as if it had been issued by the High Court of that Province.
(3) If a question arises as to which High Court shall give effect to a direction, order or
decree of the Supreme Court, the decision of the Supreme Court on the question shall
be final.

191. Rules of procedure.-Subject to the Constitution and law, the Supreme Court may
make rules regulating the practice and procedure of the Court.

202. Rules of procedure.-Subject to the Constitution and law, a High Court may make
rules regulating the practice and procedure of the Court or of any Court subordinate to
it.

Forms of subordinate legislation

1. Executive. 2. Judicial 3. Municipal 4. Autonomous.

Reasons for the growth of subordinate legislation.

1. Modern legislation requires more detail, legislature having little time for it.

2. Complex legislation requires stake holders to be consulted

3. Adjusting laws without further recourse to parliament.

4. Case for sudden emergency, concerned department is well equipped and has
time to meet such a situation.

Control on subordinate legislation.

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 1. Parliamentary control

Principles of lying before parliament.

a. Without further procedure

b. Subject to negative resolution

c. Subject to affirmative resolution.

Judicial remedies

Granted to superior courts of the country under its extra ordinary jurisdiction.

Conditional and delegated legislation.

Safe guards

1. The delegation must be to some trustworthy authority.

2. Limits of the power must be strictly defined.

3. Publicity of the rules

Points for consideration before the court

1. Rules and regulation are properly framed by the authority mentioned in the act.

2. Rules and regulation are within the scope of the power delegated.

e. General and Special laws

Constitutions require the uniform operations of all laws of general nature,

For a special law the classification of such subjects must be reasonable and tangible
distinction, general law operates on all parts of the state under the same conditions or
circumstances, and must not be discriminatory.
51
Operation of general law on all members of any class of persons, places or things
requiring legislation peculiar to itself In matters covered by law.

“Law that is neither local nor confined in its application to particular persons.

Purports to apply to all persons or places of a specified class throughout the

jurisdiction”

“Special law, a law that pertains to and affect a particular persons, place or things as
opposed to general public’.

“Local laws, a statue that relates to or operates in a particular locality rather than the
entire state”.

“in order to make a classification reasonable, it should be based:-

a) on an intelligible differentia which distinguishes persons or things that are grouped
together from those who have been left out;
b) that the differentia must have rational nexus to the object sought to be achieved by
such classification.”

Thus, keeping in view the above principles and the definition of classification
“intelligible differentia” means, in the case of the law differentiating between two sets
of the people or objects, all such differentiations should be easily understood as logical
and lucid and it should not be artificial or contrived.

f. SUBSTANTIVE AND PROCEDURAL LAWS

52
Substantive law

Substantive law the part of the law that creates defines and regulates the rights duties
and powers of the parties.

Sir john Salmond

“So far as the administration of justice is concerned with the application of remedies to
violated rights, we may say that the substantive law defines the remedy and the right,
while the law of procedure defines the modes and conditions of the application of one
to the other”.

Procedural law

The rules that prescribes the step for having a right or duty judicially enforced as
opposed to the law that specifically defines right and duties themselves.

The judicial manner for carrying on a civil law suit of criminal prosecution.

Rationale for making distinction.

1. Which Law that relates to the persons or deal with them and the law that purely
deals with courts?

2. Classification of law on the basis of title of the statute, and not by the provisions
contained in it.

3. Not all the laws relating to procedure deals with the courts alone or is purely
procedural?

4. Rights and liabilities are to be determined by which law?

5. Effects of repeal of such law on the parties.

6. Retrospective enforcement of laws.

7. Constitutional restriction on retrospective enforcement of laws.

Can such strict definition of substantive and procedural statute is realistically

applicable?
53
1. Provision of procedural laws that are substantive in their nature.

2. Provision of substantive laws that are procedure in their nature.

The proper defining of substantive law.

Article 264 of the constitution and Section 6 general clauses act.

Section 6 Effect of repeal

Where this Act, or any (Central Act) or Regulation made after the commencement of
this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a
different intention appears, the repeal shall not-

(a)  Revive anything not in force or existing at the time at which the repeal takes effect;

(b)  Affect the previous operation of the law or anything duly done or suffered under
the law;

(c)  Affect any right, privilege, obligation or liability acquired, accrued or incurred
under the law;

(d)  Affect any penalty, forfeiture or punishment incurred in respect of any offence
committed against the law; or

(e)  Affect any investigation, legal proceeding or remedy in respect of any such right,
privilege, obligation, liability, penalty, forfeiture or punishment;

And any such investigation, legal proceeding or remedy may be instituted, continued
or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the
law had not been repealed

Conclusion.

54
There is no direct provision of law defining substantive or procedural laws.

Referencing to section 6 of the general clauses act1 is primarily for the reason that such
law protects or deals with vested rights and duties relating to the parties. As well as
those remedial provisions of procedural laws that helps in the acquiring of rights or the
imposing of liability, in accordance with the provisions of substantive law.

Substantive and procedural laws

Distinction

1. Substantive law deals with subjects’ person, property, while Procedural law

deals with courts.

2. substantive laws deals with rights, privileges, duties, liabilities punishment fine,

while procedural laws deals with the mechanism of their enforcement

3. Substantive laws deals with outside world while procedural laws deals with

matters related with courts.

4. Substantive laws are passed for achieving numerous objectives as to demands

and needs of society/state, or to coup with a particular situation, while

procedural laws are passed with one primary objective and i.e. fair hearing.

5. Substantive laws are always given prospective effect by the court unless the

legislature intends otherwise, while the procedural laws are always passed with

retrospective effect unless the legislature intends otherwise.

6. There is a constitutional limitation on retrospectively of substantive laws (article

12), while no such restraint is there for procedural laws.

1
Section 6,e.general clauses act 1887
55
 7. Normally wide enough discretion and power is given to courts in procedural

laws, while limited discretion is to be found out in substantive laws.

g. Codifying and consolidating statutes.

A complete system of positive laws carefully arranged and officially promulgated.

Systematic collection, arranging of the laws, or revision of existing laws,

rules/regulation, judicial decisions, and practices.

It’s not only the compilation of the existing laws (amendments rules judicial decisions)
but also of unwritten laws on the subject.

SOURCE

Laws rules regulation precedents amendments, customs, usages, standards in a given

environment.

56
It is not only the case of revision of existing laws, by altering it, but also of addition of
new laws into it.

PRINCIPLES OF CONSTRUCTION

The presumption for construction of code is that the previous legislative intent is not
altered.

Previous judicial decisions, pari matria statutes and original statutes may be taken in to
account in clearing the ambiguous provisions of the code.

Code has the same status as that of any legislative enactment.

PPC, CrPC, CPC

CODE MAY ALSO OPERATE AS REPEAL OF THE EXISTING LAW

In such case the principles relating to the repeal of the substantive law will apply to
such codes..

CODIFICATION

The process of compiling, arranging systemizing laws on a given subject. In doing so

new laws may be added in the code and old laws may be repealed with the objective of
making it complete.

In law, codification is the process of collecting and restating the law of a jurisdiction in
certain areas, usually by subject, forming a legal code, i.e. a codex (book) of law.

Not only to decide but to declare in the form of code.

CONSOLIDATE

Made compact; united; joined; solidified

To unite, as various particulars, into one mass or body; to bring together in close union;
to combine

CONSOLIDATION

The act or process of uniting.

57
The act of combining two or more things into one.

The combination into a single statutory book of various legislative enactments that have
been previously scattered in different statutes.

TWO WAYS

Either the legislature re-enacts the same law consolidating all amendments in to it

Authorizing any publisher to reprint the same in a consolidated form.

Improving the law without altering its substance “BENNION”

SOURCES

Laws, rules regulation amendments,

h. REPEAL AND AMENDING STAUTES

MEANING

Rescind, abrogation of an existing law by legislative act

EXPLANATION

The power of repeal, that is power to revoke, abrogate existing legislation is a legislative
function. The power rests with the legislature unless prohibited or limited by the
provision of the constitution.

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Though the power of repeal is otherwise unlimited, but the legislature cannot pass an
irrepealable act, or limit or abridge the power of the succeeding legislature to repeal
legislation. Therefore a statue may be repealed in its entirety or in parts.

CONSTITUTIONAL LIMITATION ON REPEAL OF

Constitutional provisions

Legislative enactment.

KINDS OF REPEAL

EXPRESS REPEAL

Repeal of this character expressly declares that an existing law is thereby abrogated or
annulled.

Sometimes particular provisions are pointed out to be repealed.

DIRECT EXPRESS REPEAL

The law by expressly declaring by pointing out to to a particular law in respect of which
repeal is intended

Sometimes particular provisions are pointed out to be repealed.

INDIRECT EXPRESS REPEAL

The new enactment may also declare that all laws or particular provisions of laws
inconsistent therewith are repealed.

Where the new law does not specifically point out the law or laws which it intends to
abrogate, but merely provide that all laws or parts thereof in conflict are hereby
repealed.

The matter in such case is considerably difficult and requires due attention by the court.
In order to repeal any law in such case the laws in question must be actually
inconsistent. It must be repugnant and inconsistent and irreconcilable with the
repealing act

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EXPLANATION

In case of direct express repeal will not only repeal the law intended but it also repeal
other laws which are inconsistent with the new law.

If this not the case the laws will continue to be enforce.

Reason because the court does not know what specific laws are intended to be repealed,
and it does not per-se possesses the power to repeal any law. Its function is to find and
implement the intention of the legislature.

IMPLIED REPEAL

Repeal by irreconcilable conflict between an old law and a new one.

Repeal of this type are which takes place when place when a subsequently enacted law
contains provisions contrary to those of an existing law, but no provision expressly
repealing them.

It is divided in to two

IRRECONCILABLE CONFLICT

Where the new act is so inconsistent with an existing law that only one of the two can
remain in force.

Or where the new act dealing with the entire subject matter, which was dealt by the
earlier law.

In the above circumstances the repeal takes effect even though there is no direct
repealing provision in the new law.

RECONCILABLE CONFLICT

In such case the court would in its best endeavor tries to put such construction on the
new enactment as to avoid conflict.

QUESTION OF RETROSPECTIVITY AND PROSPECTIVITY OF REPEALING

(NEW) ENACTMENT.

SECTION 6 EFFECT OF REPEAL

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Where this Act, or any (Central Act) or Regulation made after the commencement of
this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a
different intention appears, the repeal shall not-

(a) Revive anything not in force or existing at the time at which the repeal takes effect;

(b) Affect the previous operation of the law or anything duly done or suffered under
the law;

(c) Affect any right, privilege, obligation or liability acquired, accrued or incurred
under the law;

(d) Affect any penalty, forfeiture or punishment incurred in respect of any offence
committed against the law; or

(e) Affect any investigation, legal proceeding or remedy in respect of any such right,
privilege, obligation, liability, penalty, forfeiture or punishment;

And any such investigation, legal proceeding or remedy may be instituted, continued
or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the
law had not been repealed

AMENDMENT (AMENDATORY STATUTE)

 An alteration or change in some of the existing provisions of statute.

 Those statutes which makes an addition to or operate to change the existing law
so as to effect an improvement therein. Or carry out more effectively the purpose
of original law.

 Or a law is amended when it is in whole or in part permitted to remain and some

thing is added to or taken from it, or changed/altered in order to make it more
complete effective.

EXPLANATION

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Amendatory is regarded as an independent act. But is the continuation of the original
act.

DIFFERENCE BETWEEN REPEAL AND AMENDMENT

Repeal is the abrogation of law by the legislative act, although amendment may operate
as repeal to a certain degree.

POWER OF AMENDING

 The power is vested with legislature, and not in judiciary.

 But one legislature cannot limit the amending power of its own or the succeeding
legislature.

 The power can only be limited by the provision of the constitution.

FORMS OF AMENDMENT

1. TEXTUAL AMENDMENT.

Where the text of the provisions are altered, by the substitution, deletion or addition of
words in a statute book.

2. INDIRECT EXPRESS AMENDMENT

Amendment otherwise than by textually amending the provisions of law by referencing

to the provisions of law intended to be amended.

3. IMPLIED AMENDMENT

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Where the later act does not expressly amend earlier law, but the provisions of the two
laws comes in to direct conflict with each other, the later by implication amends the
earlier law so far as to remove the inconsistency between them.

PRINCIPLES OF CONSTRUCTION OF AMENDING STATUTE

 Since amendment becomes part of the original statute, both must be read
together as if they constituted one enactment.

 The provision of both statutes should be harmonized.

 But in case of irreconcilable conflict, the provision of amendment must prevail,

over those of the original statute.(the latest expression of the legislative will)

 The provision of amended statute should be so construed as if it had been passed

in its amended form, since it becomes part of the.

 The words used in the statute should be construed in the same sense after
amendment.

 Change in phraseology of the amendment creates a presumption that legislature

intended the change of meaning. The amendment itself adds a strong
presumption of changing legislative intent.

 The portion not touched by the amending statute will not be affected and
amendment will not be give a wider scope as to cover un amended provisions.
Previous judicial decisions will continue to apply to such un-amended
provisions,

 Previous judicial decisions will continue to apply to the amended provisions if

the legislative intent is not in essence altered. Article 175 A and aljihad trust case
of 1996.

 In case of addition in a statute, the presumption is, the intent already carried by
statute will continue to be so, since amendment has not altered the existing law
but added something more in to it.

REPEAL BY AMENDMENT.
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  Amending statute may also operate as repeal.

 Where the provisions of the two statutes are in irreconcilable conflict. In such
case the inconsistent provision of the earlier act will be repealed.

 Repeal will also be operative where the amendment is the substitute of the earlier
law.in this case there is no case of inconsistency in order for the amendment to
operate as repeal.

EFFECT OF AMENDMENT

Like repeal substantive statute amendment will not be given effect retroactively unless
the legislature states specifically in unambiguous terms.

For procedural statutes the amendment operates retroactively, subject to the exception
that legal proceedings once commenced, investigation once started and procedural
remedy in respect of any right once becomes vested, will not be affected by the
retroactive operation of procedural statute, and will continue under the previous
procedural law.

(Section 6 clause e general clauses act)

I. PENAL REMEDIAL AND CURATIVE STATUES.

• Law that defines classifies and set forth fine, forfeiture or punishment for the
offences.

• It imposes punishment for offences committed against the state.

• It contemplates notice to persons what is and what is not prohibited.

PRINCIPLES OF CONSTRUCTION OF PENAL STATUTES

• They are to be strictly construed

• Express language to constitute penal offences

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• Strict construction of words setting out the elements of the offences.

An offence cannot be created be vague implication.

“All lotteries are unlawful”

The above instance does not create an offence.

CONDITIONS NECESSARY FOR ENFORCING PENAL LAWS

• Mens-rea must be proved.

• Knowledge or personal neglect be proved

The person knew that he was doing prohibited act.

The act was performed without lawful excuse.

CONSTITUTIONAL RESTRICTION ON RETROSPECTIVE OPERATION APPLIES

TO PENAL STATUTE.

REMEDIAL STATUTE

Law that affords a remedy

A law enacted for the purpose of correcting a defect in a prior law, or in order to
provide a remedy where none previously existed.

A remedial statute refers to a statute enacted to cure a defect in a prior law.

Three set of remedial statutes

1. Amendatory statute passed to remedy the defects in the original law

(Whether penal or civil)

2. Provides remedy for the violation of civil rights as opposed to penal statute.

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3. Procedural remedies which necessary for the acquisition of rights.

CURATIVE STATUTE

• An act that corrects an error in an original statute,

• Which attempts to cure or correct errors in judicial or administrative

proceedings.

• Or validation of some private transaction, like contracts which would otherwise

fail.

RETROSPECTIVE OPERATION

Curative statutes are always retrospective in operation for the reason that it is passed to
validate any errors in administrative action already taken, or judicial proceedings
having any defect in it.

Like “corum non judice”

May be brought back to life by passing curative act lso termed as validating act.

It will be considered as if the action was performed after the passing of the curative act.

Example property acquired under land acquisition act.

CURATIVE STATUTE WILL BE SUBJECT TO THE LIMITATION OF THE

CONSTITUTION.

Curative statute cannot validate those acts in respect of which the legislature is not
competent to legislate.

Objective is to declare the act as valid ab initio.

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2. PURPOSE AND OBJECT OF GENERAL CLAUSES ACT

1. Object for passing the act is to shorten the language of other statute, by giving if possible

one single meaning to terms which may be repeatedly be used in other statutes.

2. To clear the ambiguity in other statutes where the meaning is not clear in a statue in

question.

3. The act applies in all the cases where the act in question is silent as to legislative intent.

4. The act is a guide for understanding other statues and for the application of

interpretational principles.

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5. The act may be taken as pari material statute, meaning thereby that it may be read as part

of other statue where and when required.

6. it may also be termed as legislative dictionary. A facilitation act.

7. The act by itself does not confer any right privilege duty, punishment or penalty but is

helpful in construction of other statutes.

8. The act is limited to ordinary laws and does not apply to constitution, for the reason that

for the understating/ construction of the constitution, principles are to be found in the

constitution and not by any ordinary law.

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