Subsidiary Rules of Interpretation

i) Non-Obstante clause 1
Meaning
A non-obstante clause is generally appended to a section with a view to give the enacting part
of the section, in case of conflict, an overriding effect over the provision in the same or other
Act mentioned in the non-obstante clause. It is equivalent to saying that in spite of the
provisions or Act mentioned in the non-obstante clause, the provision following it will have its
full operation or the provisions embraced in the non-obstante clause will not be an
impediment for the operation of the enactment or the provision in which the non-obstante
clause occurs. Such a clause begins with “Notwithstanding anything contained in this Act or in
some particular provision in the Act or in some particular Act or in any law for the time being in
force” In such cases, later enactment prevails over the former and special enactment prevails
over the general one.2
One or more non-obstante clause
A non-obstante clause present in two provisions in the same act calls for a harmonious
interpretation of the two apparent conflicting provisions of the same act. This particular
exercise is not that simple, and there are proper considerations which are involved in giving
effect to the object and purpose of the two provisions involved and the language used in each
of them, as seen in the case of Shri Swaran Singh &Anr. v. Shri Kasturi Lal.
EXAMPLE: Section 129 of the Central Goods and Services Tax (CGST) Act, 2017 states
that, “notwithstanding anything contained in this act where any person transports any goods
or stores any goods while they are in transit in contravention of the provisions of this Act or
the rules made thereunder, all such goods and conveyance used as a means of transport for
carrying the said goods and documents relating to such goods and conveyance shall be liable
to detention or seizure and after detention or seizure, shall be released”. Thus, the Act has a
non-obstante clause which subsequently overrides the whole of CGST Act, 2017.
EXCEPTION
In the case of Chief Information Commissioner v. High Court of Gujarat and
Anr.3conclusively, the clauses of non-obstante are not always to be considered as rescinding
clauses nor as those clauses which partially or completely replace any other provision of the
law, but merely as those clauses which remove all barriers which might arise out of the any
other law in the way of operating the principle provision, to which the particular non-obstante
clause is attached.
The clauses of non-obstante are not always to be considered as rescinding clauses nor as those
clauses which partially or completely replace any other provision of the law, but merely as
those clauses which remove all barriers which might arise out of the any other law in the way
of operating the principle provision, to which the particular non-obstante clause is attached.

ii) Legal fiction

1
https://www.lexology.com/library/detail.aspx?g=5b24e2f7-8c76-47ff-af44-c163340cd22b
2
https://advocatespedia.com/SUBSIDIARY_RULES_OF_INTERPRETATION
3
https://www.thehindu.com/opinion/op-ed/ruling-against-judicial-transparency/
article31043522.ece#:~:text=Share%20Article-,A%20recent%20Supreme%20Court%20verdict%20has
%20barred%20citizens%20from%20accessing,to%20Information%20(RTI)%20Act.
between what persons the statutory fiction is to be resorted to. Full effect must be given to the
statutory fiction and it should be carried to its logical conclusion. A legal fiction created in
terms enacted “for the purposes of this Act is normally restricted to that Act and cannot be
extended to cover another Act.”[9] Hence, a legal fiction is a fact assumed or created by courts
which is then used in order to help reach a decision or to apply a legal rule and decisions
taken through a legal fiction derive their legitimacy from tradition and precedent as opposed to
the word of the law.
EXAMPLE:

EXCEPTION:
iii) Mandatory and Directory Provisions
MEANING AND INTRO
 The classification of statutes as mandatory and directory is useful in analyzing and solving
the problem of what effect should be given to their directions.
 But it must be kept in mind in what sense the terms are used. There is a well-known
distinction between a case where the directions of the legislature are imperative and a
case where they are directory.
 The real question in all such cases is whether a thing has been ordered by the legislature
to be done and what is the consequence if it is not done. The general rule is that an
absolute enactment must be obeyed or fulfilled substantially.
 Some rules are vital and go to the root of the matter, they cannot be broken; others are
only directory and a breach of them can be overlooked provided there is substantial
compliance.
 No universal rule can be laid down as to whether mandatory enactments shall be
considered directory only or obligatory with an implied nullification for disobedience. It is
the duty of courts of justice to try to get at the real intention of the Legislature by
carefully attending to the whole scope of the statute to be considered.
 Mandatory Enactments or Statutes means such Statutes whose provisions are required to
be followed as they are. Their performance can neither be avoided nor can be construed.
They cannot be ignored also.
 Whereas Directory Enactments means such enactments which or whose provisions are
not required to be followed as they are. Their performance or non-performance depends
upon discretion. On non-performance of such enactments, no sanction could be imposed.
 Thus, performances of Mandatory enactments are a legal binding whereas the
performance of directory enactments is voluntary, optional, or discretion.
 CASE LAW
 Hari Mshnu Kanaath v/s Ahmed Ishaq (1955 S.C.R) the meaning of Mandatory and
Directory Enactments was clarified and it was said that it is compulsory to strictly and
literally perform Mandatory enactments whereas the performance of Directory
Enactments is voluntary and discretionary. Non-performance of Mandatory Enactments
shall be penalized non-performance of dIrectory Enactments cannot be penalized.
Rules of Interpretation
 There are no established Rules or Principles for determining the Nature of Statute as
Mandatory or Directory. Generally. Its determination depends upon two points
 (a) Language of Statute or Enactment: and
 (b) Intention of law
 Nasiruddin v/s Sitaram Agrawal (A.l R 2003 S C. 1543) supreme Court also decided that
the Mandatory or Directory Nature of any Statute could be determined by two points-—
the language of the statute and the intention of the legislature.
 But, Chandrika Prasad Yadav v/s State of Bihar (A.I.R. 2004 SC 2036)-—Supreme Court
held that the nature of any statute could be determined from its purpose and object
 In respect to the performance of statute following words are used—
1. shall:
2. may:
3. must:
4. It shall be fill. And
5. As he deems fit, etc.
 These words should be understood in their natural sense while construing. Also, the
intention of the legislature should be kept in mind.
 Manoranjan Das v/s State of West Bengal (AA R. 1998 Kolkatta 22)—Kolkata High Court
said that constitutional powers have been provided to anybody under an act, their such
powers should be used to materialize the intention of the legislature.
 ‘Shall’
 Statutes mainly use two types of words—’Shall’ or ‘May’.
 When any statute uses ‘Shall’ then it shall be construed firstly as Mandatory provision.
(State of Uttar Pradesh v/s Baburam, A.I.R 1961 S.C. 751).
 Out this is not an absolute rule. Shariffuddin v/s Abdul Gani (A.I.R. 1980 S.C. 303)—
Supreme Court said that while ‘interpreting the word ‘Shall’, the intention of the
legislature should be considered and to know the intention of legislature, Content,
imagination, etc. of statutes should be considered.
 State of Madhya Pradesh v/s Azad Bharat Finance Company (A.I.R. 1967 S.C, 276)—-it
was said that it is necessary that the word ‘Shall’ need not always be Mandatory. It also
depends upon the context of the statute and the circumstances related to its passing off.
 ‘May’
 The word ‘May’ represent optional or discretionary acts or ifs provision. In other words. It
could be said that. The word ‘May’ used in statute represents the discretionary powers of
performance of that statute or its provision, (M. Jagmohan Reddy v/s Deputy Secretary,
AIR, 1982 Andhra Pradesh 182).
  But. If liability has been imposed along with the discretion of public authority in a statute,
the word ‘May’ be construed as ‘shall’ or ‘must’ (Ranga Swami v/s Sagar Textile Mills, A,
I.R. 1977 S C. 1516),
 ‘Must’
 The word ‘Must’ represents compulsorily as mandatory. Such words should be construed
as to be performed compulsorily. There is no place for Discretion
 It must be Lawful
 The phrase ‘It must be Lawful’ represents duty. It includes both duties and powers. It
provides powers to perform and function and simultaneously also imposes duty with it.
Such provisions are required to be performed
 Lord Blackburn says that the words ‘it shall be lawful’ are not ambiguous. This is a phrase
that provides power and jurisdiction. [Julius v/s Bishop of Oxford, (1880) 5 A.C. 214]
 Neath v/s Brecon Railway Co. [(1874) I C A. 263] – It was held that when words ‘It shall be
lawful are used with the intention to provide Jurisdiction to the Court, then the Court
shall be bound to follow them.

iv) Conjunctive and Disjunctive words

Prima Facie it may seem that interpretation of the words “and” and “or” need not been considered
essential, are be subsidiary and do not need much attention. However, several times, it is just
through the interpretation of the words “and” and “or” that the whole meaning of the Statute has
been changed and the Judicature has evolved a new principle altogether which was never expected.

The word “or” is normally disjunctive and “and” is normally conjunctive but at times they are read as
vice versa to effectuate the manifest intent of the legislature as disclosed from the context. As stated
by SCRUTTON L.J, ‘You do sometimes read “or” as “and” in a statute. But you do not do it unless you
are obliged because “or” does not generally mean “and” and “and” does not generally mean “or”.

However, the rule is that “or” is normally disjunctive and “and” is normally conjunctive and a
departure from the same is not available unless the very aim and purpose of the Statute so requires.
The rationale being that if the Legislature wishes to use “and” in a particular statutory provision,
then it has every right to do and nothing prevents them for doing so. So if the word “and” has not
been used and instead the word “or” has been used, it is obvious that the Legislature has
purposively used the word “or”. Unless, it is not proved, that there was some reason or difficulty
that prevented the Legislature from using the “and”, literal interpretation has to be applied to the
statutory provision and the rule - “or” is normally disjunctive and “and” is normally conjunctive has
to be given effect to.

A Judge must be a jurist endowed with the legislator's wisdom, historian's search for truth, prophet's
vision, capacity to respond to the needs of the present, resilience to cope with the demands of the
future and to decide objectively disengaging himself/herself from every personal influence or
predilections. Therefore, the judges should adopt purposive interpretation of the dynamic concepts
of the Constitution and the Act with its interpretative armoury to articulate the felt necessities of the
time.

I strongly feel that the rule which permits deviation from the usual and ordinary interpretation of the
words “and” and “or”, is an extension of the Purposive Theory wherein Courts have conferred upon
themselves the power to extend the meaning of the “and” and “or” and give them a meaning and
interpretation, which though not directly stated by the Legislature, yet, aims at achieving the real
purpose of Legislature.

Judicial Precedents

In Manmohan Das Shah v. Bishun Das, the Supreme Court held that-

"The ordinary rule of construction is that a provision of a Statute must be construed in accordance
with the language used therein unless there are compelling reasons. Such as, where a literal
construction would reduce the provision to absurdity or prevent the manifest intention of the
legislature from being carried out. There is no reason why the word "or" should be construed
otherwise than in its ordinary meaning. If the construction suggested by Mr. Desai were to be
accepted and the word "or" were to be construed as meaning "and", it would mean that the
construction should not only be such as materially alters the accommodation but is also such that it
would substantially diminish its value. ...........”

Following are examples of few cases when the rule of interpreting the word “or” as normally
disjunctive and “and” as normally conjunctive has been forgone by the Judges to prevent injustice or
to give effect to the real purpose of the Statute-

To prevent use of arbitrary powers

The words ‘owner or master’ as they occur in Section 1(2) of the Oil in Navigation Waters Act, 1955
were construed by the House of Lords to mean ‘owner and master’ making both of them guilty of
the offence under that Section as reading of “or” as “or” would have produced as absurd result of
leaving it to the Executive to select either the owner or master for being prosecuted without the Act
giving any guidance. Such a result would have been against constitutional practice.

To ensure fulfillment of duties

Negative and Positive Condition

A distinction may be made between positive and negative condition prescribed by a Statute for
acquiring a right or benefit. Positive conditions separated by “or” are read in the alternative but
negative conditions connected by “or” are construed as cumulative and “or” is read as “nor” or
“and”.

Welfare of the Public

Section 3(b)(i) of the Drugs Act, 1940, (before its amentndment in 1962 ) defined drug as follow: ‘All
medicines for internal or external use of human beings or animals and all substances intended to be
used for in the diagnosis, treatment, mitigation or prevention of disease in human beings or animals
other than medicine and substances exclusively used or prepared for use in accordance with the
Ayurvedic or Unani systems of medicine’. The Italicized, word “and” in this definition was read
disjunctively as the context showed word “or” and “and” reveals the clear intention of the
Legislature.

Speedy Justice

In a case where the Government has been given special powers to create special courts, the words
should be construed in such a manner, which ensures that effect is given to the reason for which
power has been conferred on the Government. Example- Section 3 of the Prevention of Corruption
Act, 1988 empowers the Government to appoint as many special judges as many judges as may be
necessary for such area or for such case or group of cases, as may be specified in the notification.
Construing “or” it was held that it would mean that the Government has the power to do either or
both the things, i.e., the Government may, even for an area for which a special judge has been
appointed, appoint a special judge for a case or group of cases. The case illustrates that the
alternatives joined by “or” need not always be mutually exclusive.

Scheme of the Act

For the provisions that deal with appointment of the Manager under Mines Act, 1952,word “and” in
Section 3(1)(b) is to be read disjunctively and not as being conjunctive. Having regard to legislative
intent manifested by the scheme of the Act, word “and” to be construed as “or” and read
disjunctively and not as being conjunctive.
Factual Background

The world “or” and the word “and” used in rules, laws or bye-laws have specific intention as
proposed by its maker and the meaning of “or” and the word “and” shall depend on the factual
background under which such conjunction was used.

ut res magis valeat quam pereaf

Maxwell on Interpretation of Statutes under the head ‘ut res magis valeat quam pereaf’ states that-

'If the choice is between two interpretations, the narrower of which would fail to achieve the
manifest purpose of the legislation, we should avoid a construction which would reduce the
legislation to futility and should rather accept the bolder construction based on the view that
Parliament would legislate only for the purpose of bringing about an effective result.' 'Where
alternative constructions are equally open, that alternative is to be chosen which will be consistent
with the smooth working of the system which the statute purports to be regulating; and that
alternative is to be rejected which will introduce uncertainty, friction or confusion into the working
of the system”.

I believe that it is just not important to make the statutory provisions operative and workable, but is
equally essential to make them operative in a just and reasonable manner. To give effect to this
maxim, a construction of “and” and “or” is to be applied which will be consistent with the smooth
working of the provisions.

Conclusion

The conjunction “and” or “or” can never be given a definite and dogmatic interpretation and the
entire interpretation would depend on the intention of the maker laws or bye-laws using such
conjunction.

In a latest case of 2011, Union of India v. Ind-Swift Laboratories Ltd.the Apex Court has once again
laid emphasis on the need to interpret “and” and “or” in a manner that ensures the manifest intent
of the Legislature is giving effect to.

It is essential to understand the need for correct interpretation of “and” and “or” as this can at
times, change the entire meaning of the relevant statutory provision. The Judicature should expound
the law in a manner that suppresses the evil and the wrong and advances the true meaning and
scope of the Statute. The Legislature cannot predict the myriad possible future situations that might
arise and it is impossible to draft a law perfect to meet all situations in future. This conflict is
inevitable and thus it is the duty of the Judges to use the techniques of Interpretation to give most
desired and required meaning to ensure justice prevails.