Not to amend statute..

Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. (See Institute of Chartered Accountants of India v. M/s Price Waterhouse and Anr. (AIR 1998 SC 74). The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided.


As observed in Crawford v. Spooner (1846 (6) Moore PC 1 ), Courts, cannot aid the Legislatures' defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. (See The State of Gujarat and Ors. v. Dilipbhai Nathjibhai Patel and Anr. (JT 1998 (2) SC 253).


It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. (See Stock v. Frank Jones (Tiptan) Ltd. (1978 1 All ER 948 (HL). Rules of interpretation do not permit Courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans (1910) AC 445 (HL), quoted in Jamma Masjid, Mercara v. Kodimaniandra Deviah and Ors.(AIR 1962 SC 847)
 Two principles of construction one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danackwerts, L.J. in Artemiou v. Procopiou (1966 1 QB 878), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislature and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke v. IRC (1963 AC 557) where at p. 577 he also observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges".ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS [2008] INSC 614 (10 April 2008)

 

Presumption against infringement of Fundamental rights

The ouster of Courts cannot be presumed by implication only.Parliament should use appropriate words and that also should be plain and explicit if the fundamental rights are bing taken away.It was what was observed by the House of Lords:

Ultra vires and mala fides are, prima facie, matters for the Courts. If the jurisdiction of the Courts is to be ousted it must be done by plain words. A good example of ultra vires came before the Courts while this appeal was being argued. The Act of 1946 provides for a special parliamentary procedure if the land covered by the Order is, inter alia, a common or open space. The local authority and the Minister had, bona fide, proceeded on the basis that the land was not a common or open space and had not, therefore, operated the special procedure. By the time the case came on the Minister conceded that the land covered was an open space and the Order was quashed (Richardson v. Minister of Housing and Local Government, Times newspaper, February 24, 1956). Another example is White and Collins v. Minister of Health [1939] 2 K.B. 838. There was no suggestion of bad faith. Mala fides is a phrase often used in relation to the exercise of statutory powers. It has never been precisely defined as its effects have happily remained mainly in the region of hypothetical cases. It covers fraud or corruption. As the Respondents have moved before the bad faith has been particularised, one must assume the worst.

It has been said that bad faith is an example of ultra vires, and observations to this effect are relied on by the Respondents in support of their submission that the words " not empowered to be granted " in paragraph 15 of Part IV of the First Schedule to the Act cover cases where fraud or corruption is relied on, although on the face of it there is no irregularity. The following passage from Warrington, L.J., as he then was, is perhaps the most favourable to this argument. (Short v. Poole Corporation [1926] 1 Ch. 66 at p. 91.)

" My view then is that the only case in which the Court can interfere with an act of a public body which is, on the face of it, regular and within its powers, is when it is proved to be in fact ultra vires, and that the  references in the judgments in the several cases cited in argument to bad  faith, corruption, alien and irrelevant motives, collateral and indirect objects,   and so forth, are merely intended when properly understood as examples  of matters which if proved to exist might establish the ultra vires character  of the act in question." This way of describing the effect of bad faith should not be used to blur the distinction between an ultra vires act done bona fide and an act on the face of it regular but which will be held to be null and void if mala fides is discovered and brought before the Court. The division in law is clear and deep. No party would be allowed to raise fraud under an allegation of ultra vires  simpliciter. 

In Demetriades v. Glasgow Corporation [1951] 1 A.E.R. 457 the plaintiff complained of acts done on his land after requisition. He alleged inter alia that trees had been unlawfully cut. If there had been mala fides the cutting would, as I follow it, have been unlawful, but the House would not consider the possibility of bad faith in the absence of an express averment. This is stated by Lord Normand at the end of his Opinion. My noble and learned friend, Lord Morton of Henryton. at p. 461, said this: "The position would be  different if there were any allegation of fact that the competent authority.  through his agents the respondents, had acted in bad faith and with some  ulterior motive in carrying out this work on the trees. The truth or  falsity of such an allegation could be investigated by a court of law ".

But no such investigation could take place in a case in which there was a claim for a declaration that the cutting had been unlawful. In Carltona, Ltd. v. Commissioners of Works and Others (19431 2 A.E R. 560 the writ claimed a declaration that the Commissioners of Works were not entitled to take possession of the plaintiffs' premises and that a notice on which the Commissioners relied was invalid. Lord Greene, M.R., held bad faith could not be raised under a writ in this form. The words of paragraph 15 are plainly appropriate to ultra vires in the ordinary sense. They do not in their ordinary meaning, in my opinion, cover Orders which " on the face of it" are proper and within the powers of the Act, but which are challengeable on the ground of bad faith. The wording of the paragraph itself supports this view. If mala fides is within the paragraph it must be within the earlier words " is not empowered to be granted under this Act". 

These words do not apply to a certificate under Part III. If the paragraph was to cover mala fides it would have covered it in relation to a certificate as well as to an Order. It has not done so.

This construction is strengthened by the context. The jurisdiction of the Court under paragraph 15 is ousted after six weeks. If Parliament had intended that this should apply in the case of a person defrauded it would have made it plain, and not left it to be derived from a doubtful syllogism which would certainly not occur to a layman and would not, I think, occur ordinarily to a lawyer unless he happened to have had recently to familiarise himself with passages such as that I have cited from Lord Warrington. The limited right under paragraph 15, therefore, does not apply to applications based on bad faith. Pausing there, the victim of mala fides would have his ordinary right of resort to the Courts. It is said, however, that paragraph  takes away this right. In other words, Parliament, without ever using words which would suggest that fraud was being dealt with, has deprived a victim of fraud of all right of resort to the courts while leaving the victim of a bona fide breach of a regulation with such a right. If Parliament has done this it could only be by inadvertence. The two paragraphs fall to be construed together. Mala fides being, in my opinion, clearly excluded from paragraph 15, it should not, I think, be regarded as within the general words of paragraph 16. Construing general words as not covering fraud is accepted as right in many contexts. This seems to me an appropriate context for that principle. The Act, having provided machinery for access to the Courts in cases of ultra vires, cannot have intended to exclude altogether a person defrauded. General words, therefore, should not be construed as effecting such an  exclusion.  The Respondents sought to rely on the word " whatsoever ".

It is a word which in certain contexts may bring comfort to those who seek to include fraud under general words. Here it is applied, not to the grounds of challenge, but to the legal proceedings. Orders of this kind may be challenged in various ways, by injunction, by prerogative writ or the procedure now substituted, or, as here, by an ordinary writ. The word " whatsoever " is apt to cover this multiplicity.[per Lord Somervell of Harrow]

 Smith (Kathleen Rose) v East Elloe Rural DC [1956] UKHL 2 (26 March 1956) 
URL: http://www.bailii.org/uk/cases/UKHL/1956/2.html 
Cite as: [1956] UKHL 2, [1956] AC 736

..II

Presumption that Delegated legislation would be used rationally

 Misuse of power covers a wide variety of cases, and I am relieved from considering at length what amounts to misuse of power in bona fide because I agree with the analysis made by Lord Greene, M.R. in Associated Provincial Picture Houses, Limited v. Wednesbury Corporation [1948] 1 KB 223. There the local authority had power to grant licences for cinema performances  subject to such conditions as the authority think fit to impose . They allowed Sunday performances subject to the condition that no child should be admitted and were held entitled to do this. I quote what seem to me the leading passages in Lord Greene's judgment. He said (p. 228):

" The exercise of such a discretion must be a real exercise of the discretion.  If. in the statute conferring the discretion, there is to be found expressly or  by implication matters which the authority exercising the discretion ought   to have regard to, then in exercising the discretion it must have regard to  those matters. Conversely, if the nature of the subject-matter and the  general interpretation of the Act make it clear that certain matters would  not be germane to the matter in question, the authority must disregard  those irrelevant collateral matters ... (p. 229) a person entrusted with a  discretion must, so to speak, direct himself properly in law. He must call  his own attention to the matters which he is bound to consider. He must  exclude from his consideration matters which are irrelevant to what he has  to consider. If he does not obey those rules, he may truly be said, and  often is said, to be acting ' unreasonably' . . . (p. 230) it is true to say that,  if a decision in a competent matter is so unreasonable that no reasonable  authority could ever have come to it, then the courts can interfere. That. I  think, is quite right; but to prove a case of that kind would require some-  thing overwhelming ... (p. 233) The court is entitled to investigate the  action of the local authority with a view to seeing whether they have taken  into account matters which they ought not to have taken into account, or,  conversely, have refused to take into account or neglected to take into  account matters which they ought to take into account. Once that question   is answered in favour of the local authority, it may be still possible to say  that, although the local authority have kept within the four corners of the  matters which they ought to consider, they have nevertheless come to a  conclusion so unreasonable that no reasonable authority could ever have  come to it. In such a case, again, I think the court can interfere. The  power of the court to interfere in each case is not as an appellate authority  to override a decision of the local authority, but as a judicial authority  which is concerned, and concerned only, to see whether the local authority  have contravened the law by acting in excess of the powers which Parliament has confided in them. None of those cases need involve mala fides.”. A local authority may have had regard to quite irrelevant considerations or may have acted quite unreasonably but yet be entirely innocent of dishonesty or malice.[per Lord REID]

Smith (Kathleen Rose) v East Elloe Rural DC [1956] UKHL 2 (26 March 1956) 
URL: http://www.bailii.org/uk/cases/UKHL/1956/2.html 
Cite as: [1956] UKHL 2, [1956] AC 736

General Nature of Presumptions

On presumptions:They are not reflections which are capable of determining the construction of the Act once it has been passed, unless there is something that one can lay hold of in the context of the Act which justifies the introduction of the exception sought for. Merely to say that Parliament cannot be presumed to have intended to bring about a consequence which many people might think to be unjust is not, in my opinion, a principle of construction for this purpose. In point of fact, whatever innocence of view may have been allowable to the lawyers of the 18th and 19th centuries, the 20th century lawyer is entitled to few assumptions in this field. It is not open to him to ignore the fact that the Legislature has often shown indifference to the assertion of rights which Courts of Law have been accustomed to recognise and enforce and that it has often excluded the authority of Courts of Law in favour of other preferred tribunals. [per Lord Radcliffe] Smith (Kathleen Rose) v East Elloe Rural DC [1956] UKHL 2 (26 March 1956) URL: http://www.bailii.org/uk/cases/UKHL/1956/2.html Cite as: [1956] UKHL 2, [1956] AC 736

Presumption tat Fundamental Rights cannot be taken away by General words

Fundamental Rights cannot be taken away by general words

This is a basic rule of construction that puts limitations on th extent of the scope that can be created by the general words of the statute. General words are meant for general things. In the following case ,it was  observed by LORD REID that the fundamental right like approaching the Court, against the decision taken under vast discretionary powers on some state instrumentality, cannot be denied to any one who has been subjected to unreasonable decision. The right to approach the court is a basic principle and cannot be denied .The following observations of LORD REID speaks of two thing simultaneously i..e the denial of fundamental rights and the abuse of discretion.[Blogger]

"There are many cases where general words in a statute are given a limited meaning. That is done not only when there is something in the statute itself which requires it, but also where to give general words their apparent meaning would lead to conflict with some fundamental principle. Where there is ample scope for the words to operate without any such conflict it may very well be that the draftsman did not have in mind and Parliament did not realise that the words were so wide that in some few cases they could operate to subvert a fundamental principle. In general, of course, the intention of Parliament can only be inferred from the words of the statute, but it appears to me to be well established in certain cases that, without some specific indication of an intention to do so, the mere generality of words used will not be regarded as sufficient to shew an intention to depart from fundamental principles. So general words by themselves do not bind the Crown, they are limited so as not to conflict with international law, they are commonly read so as to avoid retrospective infringement of rights, and it appears to me that they can equally well be read so as not to deprive the Court of jurisdiction where bad faith is involved. If authority be needed for reading general words so as not to deprive the Court of jurisdiction in such a case, I find it in Colder v. Halket.

3 Moore P.C. 28, where general words in 21 Geo. III c. 60 s. 24 were even farther limited without there being anything in the statute to indicate that they should be read in a limited sense.

 I think that there is still room for reason to point out that the general words in this case must be limited so as to accord with the principle, of which Parliament cannot have been ignorant, that a wrongdoer cannot rely on general words to avoid the consequences of his own dishonesty. [per LORD REID] Like wise the following observation was made by other judge;It is quite true, as is said, that these are merely general words : but then, unless there is some compelling reason to the contrary, I should be inclined to regard general words as the most apt to produce a corresponding general result. [ per Lord Radcliffe]Smith (Kathleen Rose) v East Elloe Rural DC [1956] UKHL 2 (26 March 1956) 

URL: http://www.bailii.org/uk/cases/UKHL/1956/2.html 
Cite as: [1956] UKHL 2, [1956] AC 736

Crown Immunity: Changing Practice

Crown Immunity- A Discussion and perspective

For many years, opinion on the High Court was divided as to which of two views on the immunity of the Crown from statutes should prevail in a federal context. [See R v Sutton (1908) 5 CLR 789; Pirrie v McFarlane (1925) 36 CLR 170; Minister for Works (WA) v Gulson (1944) 69 CLR 338; Essendon Corporation v Criterion Theatres Ltd (1947) 74 CLR 1. The narrow view, which limits the scope of crown immunity, is that the presumption is confined to the Crown in right of the community whose legislation is in question and does not extend to the Crown in any other capacity. The wide view is that the presumption of immunity serves to shield the Crown in all its capacities, and is not limited to the Crown in right of the enacting legislature.[ Hogg Liability of the Crown 2nd ed LBC Ltd North Ryde 1989, 201.]

 At common law there is a rule of construction by which a statute is presumed not to apply to the Crown, despite general words that would otherwise include it. Such presumption prevails, therefore, subject to its specific rebuttal by the terms of the statute itself or by other statutes, such as the Judiciary Act or a crown proceedings statute, which may, in some cases and to some degree, pick up the primary statute and apply it against the Crown. Like the other prerogative Crown immunities, the immunity from statute has its origins in the English common law. Some early authorities applied the immunity only in protection of the Crown's prerogative rights.[ Initially, the English courts did not rigorously apply the presumption that the Crown was immune from statute. Immunity was granted to the Crown only in those circumstances where its pre-existing prerogative rights and interests might have been prejudiced by the enforcement of legislative provisions against it: Willion v Berkely (1561) 75 ER 339 (KB); see P Hogg Liability of the Crown 2nd ed LBC Ltd North Ryde 1989, 202. See also the Magdalen College case (1615) 11 Co Rep 66b, 72a (Lord Coke); D Kinley `Crown immunity: A lesson from Australia?' (1990) 53 Modern Law Review 819, 820; J Wolffe `Crown immunity from regulatory statutes' [1988] Public Law 339-346.]

 However, in the majority of cases the immunity was applied `whether or not the prerogative was affected and irrespective of the purpose of the statute'[ P Hogg Liability of the Crown 2^nd ed LBC Ltd North Ryde 1989, 202.]From these historical origins, the Privy Council in Bombay v Municipal Corporation of Bombay[Bombay v Municipal Corporation of Bombay [1947] AC 58.] developed an important principle with respect to rebuttal of the immunity.

In this case, the Crown in the right of the Province of Bombay held land in respect of which it claimed to be exempt from the City of Bombay Municipal Act. The Act empowered a City official to lay water mains through `any land whatsoever' in the city, but was silent as to whether it bound the Crown and so applied to the land in question. The Privy Council held that the Act was not binding on the Crown as it did not do so by express words or by `necessary implication', which is present only if `manifest from the very terms of the statute', (`the general rule of construction'). This rule, which until recently was applied widely in Commonwealth countries, meant that unless the purpose of the statute would be `wholly frustrated' if not binding on the Crown, the presumption of crown immunity prevailed. [ L Katz `The test for determining the applicability to the states of federal statutes which do not expressly bind them' (1994) 11 Australian Bar Review 222.]The Bombay decision therefore clearly rejected earlier decisions that rights peculiar to the Crown must be affected for immunity to prevail; the land in question having been acquired from private owners without the exercise of any prerogative power.[Bombay v Municipal Corporation of Bombay [1947] AC 64. See P Hogg Liability of the Crown 2nd ed LBC Ltd North Ryde 1989, 203.]

Rebutting the presumption

The presumption of immunity may be rebutted expressly or by implication. In the intra polity situation, the interpretation of a clause expressly binding the Crown to a statute necessarily entails fewer potential complications than does the inter polity situation. For example, whether a clause states generally a New South Wales Act `binds the Crown', or states in particular that the Act binds `the Crown in the right of the State of NSW', it is clear that NSW, at least, is bound by the Act. Where the binding effect of a statute must be construed by implication, however, such conclusion is often more difficult to determine.[ The uncertainty which arises in the inter polity situation from both general and particular express clauses is discussed in detail below in para 5.220-5.225. Where the binding effect of a statute must be construed by implication, however, complications may arise in both the intra and inter polity situations.]


English courts have been very reluctant to find the `necessary implication' that would make a statute applicable to the Crown, when express words have not been used. Occasional deviations from a strict application of the general rule of construction were firmly rejected by the House of Lords in Lord Advocate v Dumbarton District Council,[ Lord Advocate v Dumbarton District Council [1989] 3 WLR 1346.] which firmly reinforced the decision in the Bombay case. [The decision in Lord Advocate v Dumbarton also overruled an exception to Crown immunity, in addition to those set down in the Bombay case, established by the Court of Appeal in Madras Electric Supply Corporation Ltd v Boarland [1955] AC 667. It was in this case that the Crown could also be bound by a statutory provision whose application would not `adversely affect', the Crown in any way.]
As with the superior courts of other Commonwealth jurisdictions, early High Court cases in Australia adopted the general rule of construction from theBombay case and confined the rebuttal of crown immunity within its strictures. Refinements to the rule were nevertheless made, and the test which was for many years applied was as described by the High Court in Commonwealth v Rhind, which held that

in the construction of statutes...the Crown is not included in the operation of a statute unless by express words or by necessary implication. Where the Crown is not expressly mentioned, the implication will be found, if at all, by consideration of the subject matter and of the terms of the particular statute.[ Commonwealth v Rhind (1966) 119 CLR 584, 598.]

Consideration of the subject matter of a statute, though not sufficient alone to bind the Crown in Rhind's case, was thus incorporated into the reasoning of the courts in such matters. This signified a departure from the strict interpretation of crown immunity from statute created in the Bombay case and developed in the United Kingdom. The High Court in Bropho subsequently incorporated the interpretation of subject matter into a revised general rule of construction, which replaced the Bombay principle and revolutionised the law regarding crown immunity from statute in Australia. The effect was that the test for determining whether a statute impliedly binds the Crown became significantly easier to satisfy.[ L Katz `The test for determining the applicability to the states of federal statutes which do not expressly bind them' (1994) 11 Australian Bar Review 222.]

In the leading judgment of the High Court, the view was expressed that, in the interests of brevity of legislation and as an aid to statutory construction, it was appropriate that there be a presumption that general words in a statutory provision either do or do not bind the Crown. However, it was held that the `necessary implication' might be found in the `subject matter and disclosed purpose and policy' of the Act,] Bropho v Western Australia (1990) 171 CLR 1, 21-22 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ).] and the overall operation of the Act in relation to its subject matter, and no longer necessarily in the manifest terms of the Act itself. The general rule of statutory construction was still to be applied, but `if, however, a legislative intent that the Crown be bound is apparent notwithstanding that those tests are not satisfied, that legislative intent must prevail'.[ id, 23 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ).]

Discussion Paper 64: Review of the Judiciary Act 1903,The Australian Law Reform Commission