Internal Aids to the Interpretation of a Statute

The rule is settled and it has two halves. Where the words of the enactment are clear, the preamble cannot cut them down or extend them. Where they are ambiguous, the preamble may be looked at to ascertain the object and the mischief.

The Preamble to the Constitution has been the subject of the leading Indian discussion.

Facts. In In re Berubari Union, AIR 1960 SC 845, the President referred to the Supreme Court under article 143(1) the question whether the Indo-Pakistan Agreement of 1958, which divided Berubari Union and exchanged the Cooch-Behar enclaves, involved a cession of Indian territory and how it could be implemented. It was argued that the Preamble, in which the people of India resolved to constitute a sovereign republic, itself prohibited the cession of any part of the national territory.

Held. Although it may be correct to describe the Preamble as a key to the mind of the makers of the Constitution, it forms no part of the Constitution, is not the source of any substantive power, and equally is not the source of any prohibition or limitation: powers and limitations alike must be found in the body of the Constitution. The argument founded on the Preamble therefore failed, and implementing the agreement required an amendment under article 368.

Why it matters. It is the formulation students are asked for, and it draws the line exactly: a key to the mind of the makers, and not a source of power or of prohibition. The standing of the Preamble was reconsidered in later constitutional litigation, and an answer should say that the proposition that it forms no part of the Constitution has not survived unqualified.

Marginal notes

A marginal note is the short heading printed beside a section: "Effect of repeal" beside section 6.

Here the traditional rule is strict: marginal notes are not part of the statute, because they are inserted by the draftsman and are not voted on by the legislature, so they cannot control the plain meaning of a section. That remains the starting point.

The practice is more nuanced, and it is where marks are earned. A marginal note has been used as an indication of the drift of a section where the words are ambiguous. In K.P. Varghese v. Income Tax Officer, Ernakulam, AIR 1981 SC 1922, the Court used it in exactly that way.

Facts. The assessee sold his Ernakulam house in 1965 to his daughter in law and five of his children for the same price he had paid in 1958, and the Income Tax Officer sought to bring a capital gain to tax under section 52(2) of the Income Tax Act 1961, which applied where the fair market value exceeded the declared consideration by more than fifteen per cent, the Revenue contending that it applied whether or not the consideration had been understated.

Held. Section 52(2) applies only where the consideration has in fact been understated, and the burden of proving understatement lies on the Revenue. Among the reasons, the Court pointed to the marginal note to section 52, which had originally been a marginal note to what became sub section (1) and had remained unchanged when sub section (2) was inserted, as clearly suggesting that Parliament meant it to apply to both sub sections and therefore that sub section (2), like sub section (1), was directed at understatement. It also relied on the placement of the sub section within section 52, on the word "declared" inside it, on the speech of the Finance Minister moving the amendment, and on two circulars of the Central Board of Direct Taxes.

Why it matters. It shows the modern position: a marginal note does not govern, and it is not ignored either where the section is genuinely ambiguous. The external aids in the same judgment are worked in [External Aids to the Interpretation of a Statute].

Headings, and the captions of Parts and Chapters

A heading stands at the top of a group of sections: "GENERAL RULES OF CONSTRUCTION" above sections 5 to 13 of the General Clauses Act, "POWERS AND FUNCTIONARIES" above sections 14 to 19.

Headings are part of the Act and may be looked at to see what the group of sections is about, particularly where the words of a section are ambiguous. They cannot control a clear provision, and a section is not confined to what the heading suggests if its own words go further.

The Act supplies its own vocabulary here. Section 3(9): "Chapter" shall mean a Chapter of the Act or Regulation in which the word occurs. Section 3(40): "Part" shall mean a part of the Act or Regulation in which the word occurs. Section 3(54) does the same for "section" and section 3(52) for "schedule".

Definitions clause, and the difference between "means" and "includes"

The definitions clause fixes the meaning of the words the Act uses, and it is almost always section 2 or section 3.

Three forms, and telling them apart is the point of this topic.

"Means" is exhaustive. Section 3(38) of the General Clauses Act: "offence" shall mean any act or omission made punishable by any law for the time being in force. Nothing outside that is an offence for the purposes of the Act.

"Includes" is extensive. Section 3(42): "person" shall include any company or association or body of individuals, whether incorporated or not. The ordinary meaning of "person" survives and the definition adds to it. That is why a human being is still a person although the definition does not mention one.

"Means and includes" is exhaustive but spelt out. Section 2(1)(f) of the Bharatiya Sakshya Adhiniyam 2023: "fact" means and includes any thing, state of things or relation of things capable of being perceived by the senses, and any mental condition of which any person is conscious.

Two further points that are asked. A definition is subject to the opening words of the clause, which are ordinarily "unless there is anything repugnant in the subject or context", so a definition yields where the context requires. And a deeming provision creates a legal fiction: "shall be deemed to be" makes the law treat as true something that is not, and a fiction is carried to its logical conclusion for the purpose for which it was created and no further.

Sections 4 and 4A of the General Clauses Act extend its section 3 definitions backwards, to enactments made before 1897 and to Indian laws respectively, which is worth a line because it shows a definitions clause reaching beyond its own Act.

Explanations

An Explanation is a paragraph appended to a section or to a proviso to explain it. Section 2(1)(h) of the Bharatiya Nagarik Suraksha Sanhita 2023 carries one, deeming a police report on a non-cognizable offence to be a complaint.

S. Sundaram Pillai v. V.R. Pattabiraman, AIR 1985 SC 582, sets out what an Explanation does.

Facts. Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 allowed eviction for non-payment of rent; its proviso allowed the Controller to give a defaulting tenant time if the default was not wilful; and an Explanation added in 1973 provided when default shall be construed as wilful. The Court had to decide what work the proviso and the Explanation each did, and what "wilful default" meant.

Held. The object of an Explanation to a statutory provision is to explain the meaning and intendment of the Act itself; where there is any obscurity or vagueness in the main enactment, to clarify it so as to make it consistent with the dominant object it seems to subserve; to provide additional support to that dominant object so as to make it meaningful and purposeful; and, where a gap is left, to help the court in interpreting the true purport of the enactment so as to suppress the mischief and advance the object. An Explanation cannot in any way interfere with or change the enactment or any part of it, and it cannot take away a statutory right with which a person has been clothed or set at naught the working of the Act.

Why it matters. It gives, in one place, both what an Explanation may do and the two things it may not, which is exactly the shape of the examination answer.

Exceptions and savings

An exception takes a case out of the operation of a provision that would otherwise cover it. Section 9 of the Code of Civil Procedure 1908 gives the courts jurisdiction over all suits of a civil nature "excepting suits of which their cognizance is either expressly or impliedly barred".

A saving clause preserves something that would otherwise be destroyed by the Act, and it appears most often beside a repeal. Section 6 of the General Clauses Act 1897 is a saving clause of general application, and section 29 of the same Act is headed "Saving for previous enactments, rules and bye-laws".

Two points carry marks. A saving clause is read so as not to defeat the main purpose of the Act; and where a saving clause and the enacting part are irreconcilable, the enacting part prevails, since the saving clause was inserted to preserve and not to override.

Provisos

A proviso is a clause beginning "Provided that", attached to a section or a sub-section.

Sundaram Pillai states the rule. The well established rule of interpretation of a proviso is that it may have three separate functions. Normally a proviso is meant to be an exception to something within the main enactment, or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. A proviso cannot be torn apart from the main enactment, nor can it be used to nullify or set at naught the real object of the main enactment.

Two rules follow, and both are asked. A proviso is confined to the provision it is attached to, and does not travel to the rest of the Act. And a proviso ordinarily carves out an exception rather than enlarging the section: an argument that a proviso extends the main provision has to be made good and is not assumed.

Distinguish a proviso from an Explanation with care. A proviso takes something out; an Explanation clarifies what is in. A provision may carry both, as section 10(2) of the Tamil Nadu Act did.

Illustrations

Illustrations are worked examples appended to a section, in the style of the Bharatiya Sakshya Adhiniyam 2023, which illustrates the definition of "fact" with three: that certain objects are arranged in a certain order in a certain place is a fact; that a person heard or saw something is a fact; that a person said certain words is a fact.

Illustrations are part of the Act and are a legitimate aid to understanding the section they follow. Two limits: an illustration cannot modify the language of the section, and where an illustration and the section are irreconcilable, the section prevails.

Language and punctuation

Language. The words of the provision are the starting point and the finishing point, which is what [The Literal Rule] is about. What belongs here is the working detail: a word takes colour from the words around it, which is noscitur a sociis; a word used twice in the same Act is presumed to bear the same meaning in both places; the singular includes the plural and the masculine includes the feminine, which section 13 of the General Clauses Act 1897 provides in terms; and a word is read in the sense it bore when the Act was passed unless the Act is of a kind that moves with the times.

Punctuation. The traditional rule is that punctuation is no part of a statute and is of little weight, because the Rolls of Parliament originally carried none.

Aswini Kumar Ghosh v. Arabinda Bose, AIR 1952 SC 369, is the Indian authority.

Facts. Section 2 of the Supreme Court Advocates (Practice in High Courts) Act 1951 provided that, notwithstanding anything contained in the Indian Bar Councils Act 1926 or any other law regulating the conditions subject to which a person not entered on the roll of advocates of a High Court may practise there, every advocate of the Supreme Court shall be entitled as of right to practise in any High Court. The question was whether such an advocate could appear on the Original Side of the Calcutta High Court without being instructed by an attorney, and much argument turned on a comma placed before the word "or" in the opening clause.

Held. By majority, "practise" in section 2 covers both acting and pleading, so the Original Side rules requiring instruction by an attorney could not be applied to an advocate of the Supreme Court. On the comma the Court held that nothing much turned on it, since in construing a statute punctuation marks are of little weight; and it held that the true scope of the enacting part of a section cannot be cut down by the non obstante clause, whose function is to remove obstructions and not to define the reach of what follows. Mukherjea and Das JJ. dissented, and their judgment records that punctuation is a minor element in construction because the Rolls of Parliament carried none.

Why it matters. It is the leading Indian case on punctuation and on the limits of a non obstante clause, and it is a clean example of a majority and a minority for [Indian Young Lawyers Association v. State of Kerala].

Non obstante clause

A non obstante clause opens with "notwithstanding anything contained in", and its function is to give the enacting part an overriding effect where there is a conflict.

Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, AIR 1987 SC 117, states it.

Facts. A dispute under the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 turned on the effect of a provision opening with the words "notwithstanding anything contained in any law", and on how far that opening displaced other provisions.

Held. A clause beginning with the expression "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, or in any contract" is more often than not appended to a section with a view to giving the enacting part, in case of conflict, an overriding effect over the provision mentioned in the non obstante clause. It is equivalent to saying that in spite of the provision mentioned, the enactment following it will have its full operation, or that the provisions embraced in the non obstante clause will not be an impediment to the operation of the enactment.

Why it matters. It supplies the definition to write down, and it pairs with Aswini Kumar Ghosh, which supplies the limit: the clause removes obstructions and does not define the scope of the enacting part.

Schedules

A Schedule is matter placed at the end of an Act, and it is part of the Act. Section 3(52) of the General Clauses Act provides that "schedule" shall mean a schedule to the Act or Regulation in which the word occurs.

Schedules carry the material that would clutter the body: the First Schedule to the Code of Civil Procedure 1908 holds all the Orders and Rules, the Schedule to the Hindu Succession Act 1956 lists the class I and class II heirs, and the First Schedule to the Bharatiya Nagarik Suraksha Sanhita 2023 classifies offences as cognizable or not and bailable or not.

Two rules. A Schedule is construed with the section that brings it in, and it takes its meaning from that section. And where a Schedule and a section conflict, the section prevails, because the Schedule is subordinate to the enacting part that gives it operation.

Reading a printed extract, part by part

A printed Act is laid out in a fixed order, and being able to point at each part by name is a separate skill from knowing what each part does. It is worth learning as a drill, because the parts are not labelled on the page.

Here is a real extract, exactly as it is printed.

THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971

(ACT NO. 34 OF 1971)

[10th August, 1971]

An Act to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto.

BE it enacted by the Parliament in the Twenty-Second Year of the Republic of India as follows:

Short title, extent and commencement.

1. (1) This Act may be called the Medical Termination of Pregnancy Act, 1971.

(2) It extends to the whole of India.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

Now the parts, in the order they appear.

The heading in capitals, "THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971", is the name of the Act as printed. It repeats what section 1(1) enacts as the short title.

"(ACT NO. 34 OF 1971)" is the official citation, sometimes called the number and year of the Act. Every Act passed in a year is numbered in sequence, so this is the thirty fourth Act of 1971. Section 28(1) of the General Clauses Act 1897 provides that an enactment may be cited by its title or short title, or by reference to the number and year thereof, so "Act 34 of 1971" and "The Medical Termination of Pregnancy Act, 1971" are two proper citations of the same statute.

"[10th August, 1971]", the date in square brackets, is the date of assent, that is, the day the President assented under article 111. It is printed in square brackets in every Central Act.

"An Act to provide for the termination of certain pregnancies ... incidental thereto." is the long title. It begins "An Act to" and states the purpose.

"BE it enacted by the Parliament in the Twenty-Second Year of the Republic of India as follows:" is the enacting formula, also called the enacting clause. It is the sentence by which the legislature enacts what follows, and it names the year of the Republic rather than the calendar year.

"Short title, extent and commencement." printed beside or above section 1 is the marginal note.

"1." is the section number, and "(1)", "(2)" and "(3)" are its sub-sections.

Section 1(1) is the short title provision. It is what makes the name in the heading the Act's legal name.

Section 1(2) is the extent clause. It says the territory to which the Act extends.

Section 1(3) is the commencement clause. Here it appoints no date and leaves it to a notification, which is the pattern worked in [Commencement of Statutes].

The four that are confused, and how to tell them apart

Where the preamble would be

The extract above has none, and most modern Acts do not. Where an Act has one it sits between the long title and the enacting formula, and begins "WHEREAS". The General Clauses Act 1897 has one: "WHEREAS it is expedient to consolidate and extend the General Clauses Acts, 1868 and 1887; it is hereby enacted as follows".

A student asked to identify the parts of an extract with no preamble should say so rather than pointing at the long title.

A second extract, with the differences that matter

THE PROTECTION OF HUMAN RIGHTS ACT, 1993

(ACT NO. 10 OF 1994)

[8th January, 1994]

An Act to provide for the constitution of a National Human Rights Commission, State Human Rights Commissions in States and Human Rights Courts for better protection of human rights and for matters connected therewith or incidental thereto.

BE it enacted by Parliament in the Forty-fourth Year of the Republic of India as follows:

Short title, extent and commencement.

1. (1) This Act may be called the Protection of Human Rights Act, 1993.

(2) It extends to the whole of India.

(3) It shall be deemed to have come into force on the 28th day of September, 1993.

Three things here that the first extract does not show, and each is asked.

The year in the short title and the year in the official citation differ. The Act is called the Act of 1993 and is numbered Act 10 of 1994. There is no error: the short title is what section 1(1) chooses to call it, and the official citation records the year in which it was actually passed and numbered. An Act may be named for the year of the events it deals with, or for the year in which the Bill was introduced.

The date of commencement is EARLIER than the date of assent. Assent was on 8 January 1994; section 1(3) says the Act shall be deemed to have come into force on 28 September 1993. That is a deeming provision giving the Act retrospective commencement, and it is explained in [Commencement of Statutes].

The enacting formula names a different year of the Republic, the Forty-fourth, because the Act was passed in a later year than the first extract.

A worked example

A fictitious Municipal Corporations (Amendment) Act contains this section.

Regulation of hawking.

14. Notwithstanding anything contained in any other law for the time being in force, no person shall hawk any goods in a public street except under a licence granted under this Act.

Provided that nothing in this section shall apply to a person selling newspapers or periodicals.

Explanation. For the purposes of this section, "hawk" means to sell or offer for sale from a stationary position on a street, and includes selling from a handcart.

Illustration. A, standing beside a handcart on a footpath, offers vegetables for sale. A hawks within the meaning of this section.

Ajay sells hot food from a scooter that he moves every few minutes. He is prosecuted. Every internal aid in this chapter is engaged.

Marginal note: "Regulation of hawking" tells you the subject and no more. It cannot decide whether Ajay hawks.

Non obstante clause: "notwithstanding anything contained in any other law" means that if a shops and establishments Act permits what section 14 forbids, section 14 prevails. On Aswini Kumar Ghosh it does no more than that, and cannot be used to widen "hawk".

Definitions inside the Explanation: "hawk" means to sell from a stationary position, and includes selling from a handcart. The word "means" makes the first limb exhaustive, so a person selling from a moving scooter is outside it, and the "includes" limb adds handcarts without touching the requirement of a stationary position. That is Ajay's answer, and it turns entirely on the difference between "means" and "includes".

Proviso: it carves newspapers out. On Sundaram Pillai the proviso is an exception to the main enactment and cannot be used to enlarge it, so Ajay cannot argue that because newspapers are excepted, all street food is.

Illustration: it is consistent with the Explanation and confirms it. If the illustration had said "A, selling from a moving scooter, hawks", it would conflict with the Explanation, and the enacting words would prevail.

Language: "public street" is not defined here, so the definitions clause of the principal Act is checked next, and only after that the General Clauses Act, and only after that the ordinary meaning.

Distinctions table

What these do NOT mean

A preamble is not a source of power. Berubari settles it. It is a key to the mind of the makers.

A marginal note does not govern the section. It may be looked at where the section is ambiguous and it cannot contradict it.

"Includes" does not replace the ordinary meaning, it adds to it. This is the single most valuable line in the topic.

A proviso does not enlarge the section it qualifies, in the ordinary case.

Punctuation does not decide a construction. Aswini Kumar Ghosh refused to let a comma carry the argument.

A non obstante clause does not tell you what the section covers. It tells you what the section overrides.

Limits and criticism

The rule about marginal notes is stated more absolutely than it is applied. Courts say the notes are not part of the Act and then use them, and the honest position is that they are a weak aid rather than a forbidden one.

The distinction between a proviso, an exception and an Explanation is not always observed by draftsmen, and a clause labelled a proviso sometimes does the work of an Explanation. Courts look at what the clause does rather than at its label.

Internal aids can be made to yield almost any answer if enough of them are stacked, which is the standing criticism of the whole subject: a court that wants a result can usually find a heading, a proviso or an illustration that points at it.

Quick revision

Order: look inside the Act first; go outside only if doubt remains.

Short title, identification. Long title, general object. Preamble, object and mischief where ambiguous; Berubari, a key to the mind of the makers, not a source of power or prohibition.

Marginal notes, not part of the Act, usable on ambiguity; K.P. Varghese used one. Headings and captions, show what a group is about; General Clauses Act ss.3(9), 3(40), 3(52), 3(54).

Definitions: "means" exhaustive, "includes" extensive, "means and includes" exhaustive and spelt out; subject to "unless the context otherwise requires"; deeming provisions create a fiction carried only as far as its purpose. ss.4 and 4A extend the definitions backwards.

Explanation: Sundaram Pillai, five propositions; it clarifies and cannot change the enactment or take away a statutory right. Proviso: Sundaram Pillai, normally an exception or qualification; confined to its own provision; cannot nullify the main enactment.

Illustrations, part of the Act, cannot modify the section. Punctuation, little weight, Aswini Kumar Ghosh. Non obstante clause, Chandavarkar for what it does, Aswini Kumar Ghosh for its limit. Saving clause, preserves; the enacting part prevails on conflict. Schedules, part of the Act; the section prevails on conflict.

Test yourself

1. What is an internal aid, and why are internal aids used before external ones?

An internal aid is a part of the enactment itself, other than the words being construed, which a court may look at to ascertain their meaning: the titles, preamble, marginal notes, headings, definitions, Explanations, exceptions, provisos, illustrations, language and punctuation, non obstante and saving clauses and Schedules. They come first because the intention of the legislature is to be gathered from what the legislature enacted, so a court reads the whole Act before it looks anywhere else, and resorts to external material only if a doubt remains.

2. What did the Supreme Court hold about the Preamble in In re Berubari Union?

That although it may be correct to describe the Preamble as a key to the mind of the makers of the Constitution, it forms no part of the Constitution and cannot be regarded as the source of any substantive power, and that the same is true of prohibitions and limitations, which must be found in the body of the Constitution. The argument that the Preamble by itself barred the cession of territory therefore failed, and a constitutional amendment under article 368 was held to be necessary to implement the agreement.

3. Distinguish "means" from "includes" in a definitions clause, with an example of each.

A definition using "means" is exhaustive: nothing outside it falls within the word. Section 3(38) of the General Clauses Act 1897 provides that "offence" shall mean any act or omission made punishable by any law for the time being in force. A definition using "includes" is extensive: the ordinary meaning survives and the definition adds to it. Section 3(42) provides that "person" shall include any company or association or body of individuals, whether incorporated or not, which is why a human being remains a person although the definition never mentions one.

4. State the functions of a proviso and of an Explanation, and the limits on each.

On S. Sundaram Pillai v. V.R. Pattabiraman, a proviso is normally an exception to something within the main enactment, or a qualification of something enacted which but for the proviso would be within it; it cannot be torn apart from the main enactment and cannot be used to nullify its real object, and it is confined to the provision it is attached to. An Explanation explains the meaning and intendment of the Act, clarifies obscurity or vagueness so as to make the provision consistent with its dominant object, supports that object, and may help the court where a gap is left; it cannot interfere with or change the enactment, and it cannot take away a statutory right or set at naught the working of the Act.

5. How much weight does punctuation carry, and which case says so?

Very little. In Aswini Kumar Ghosh v. Arabinda Bose, AIR 1952 SC 369, both sides made much of a comma placed before the word "or" in the non obstante clause of section 2 of the Supreme Court Advocates (Practice in High Courts) Act 1951, and the Court held that nothing much turned on it, since in construing a statute punctuation marks are to be left largely out of consideration. The dissenting judgment records the reason: the Rolls of Parliament originally carried no punctuation at all, so it was never part of what the legislature enacted.

6. What does a non obstante clause do, and what can it not do?

On Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, a clause beginning "notwithstanding anything contained in" is appended to a section to give the enacting part an overriding effect, in case of conflict, over the provisions named in it, so that in spite of those provisions the enactment following will have its full operation. What it cannot do, as Aswini Kumar Ghosh holds, is define or cut down the scope of the enacting part: its function is to remove obstructions to the operation of the section, not to say how far the section reaches.