The Literal Rule
Chapter Twenty-Nine
Syllabus topic 4.1, "Rules of interpretation of Statutes - Literal, Mischief and Golden rule of interpretation ..."
Pages 221 to 226 of 314
In one line
Give the words of a statute their ordinary, natural and grammatical meaning, and if that meaning is clear, apply it.
In the wording a student can write in an exam: the literal or grammatical rule of construction requires that the words of a statute be given their ordinary, plain and natural meaning, in their grammatical sense, without addition or subtraction; where the language is clear and unambiguous the court must give effect to it whatever the consequences, because the intention of the legislature is to be gathered from the words it has used, and it is not for a court to speculate on what the legislature meant to say as distinct from what it has said.
Why the literal rule is the primary rule
Three reasons, and giving all three shows the rule is a principle and not a habit.
The words are the only thing the legislature actually enacted. Members voted on a text. They did not vote on a purpose, on a committee report, or on what any of them said in the House. If a court departs from the text, it is applying something nobody enacted.
Separation of powers. Making the law belongs to the legislature and applying it to the courts. A court that reads words the legislature did not use is legislating.
Certainty. People arrange their affairs by reading the statute. A rule that words mean what they say lets a lawyer advise; a rule that words mean what a court thinks the legislature would have wanted does not.
What the rule requires, step by step
One, read the whole Act. The literal rule is not a rule about reading one sentence in isolation; it is a rule about the ordinary meaning of the words in their context, which includes the section, the Chapter and the Act.
Two, check whether the word is defined. A defined word bears its defined meaning, and no dictionary and no ordinary usage displaces it. This is why [Fact, Person, Offence and State] insists on looking at the definitions clause first, then at the General Clauses Act, and only then at ordinary usage.
Three, give the undefined words their ordinary, natural and grammatical meaning. Ordinary means the meaning an ordinary speaker would give. Grammatical means that the syntax is respected: which noun a relative clause attaches to, what "and" and "or" do, where a proviso attaches.
Four, apply the statutory rules of language. Section 13 of the General Clauses Act 1897 provides that in all Central Acts and Regulations, unless there is anything repugnant in the subject or context, words importing the masculine gender shall be taken to include females, and words in the singular shall include the plural and vice versa. Section 9 provides that it is sufficient, to exclude the first in a series of days, to use the word "from", and to include the last, to use the word "to".
The Literal Rule
Five, if the meaning is clear, stop. That is the whole rule. There is no further step and no licence to ask whether the result is desirable.
Two maxims that belong to this rule
Casus omissus. A case omitted from a statute cannot be supplied by a court. If the legislature has not provided for a situation, the court does not write the provision in. This is the strictest expression of the literal rule and it is the point at which it bites hardest, because the omission is usually obvious and the temptation to cure it is strong.
Expressum facit cessare tacitum, what is expressed puts an end to what is implied. Where the statute has said a thing expressly, there is no room for an implication to the contrary.
Both connect to expressio unius est exclusio alterius, worked in [Legal Maxims: the First Eight].
The rule at work
The literal rule is not usually the subject of a leading case, because a case in which the words were plain and were applied does not need reporting. Where it appears in the reports is at the moment a court refuses to depart from it, or explains why it is departing.
Tolaram Relumal v. State of Bombay, AIR 1954 SC 496, is a good example of both.
Facts. Tolaram Relumal v. State of Bombay, AIR 1954 SC 496. Section 18(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 made it an offence for a landlord, himself or through any person acting or purporting to act on his behalf, to receive any fine, premium or other like sum or deposit or any consideration other than the standard rent in respect of the grant, renewal or continuance of a lease. The appellants had received money under an executory contract to grant a lease of premises in a building that had not yet been built, and they were convicted.
Held. The conviction was set aside. The words "grant, renewal or continuance of a lease" suggest that there must be a renewal or continuance of a subsisting lease, and, giving the words "in respect of" their widest meaning, that relationship must be predicated of the grant, renewal or continuance of a lease, so that unless a lease comes into existence simultaneously or near about the time the money is received, the receipt is not in respect of one. The Court then stated the rule that governs a penal provision: if two possible and reasonable constructions can be put upon it, the court must lean towards the construction which exempts the subject from penalty rather than the one which imposes it, and it is not competent to the court to stretch the meaning of an expression used by the legislature in order to carry out the intention of the legislature.
The Literal Rule
Why it matters here. The last sentence is the literal rule in its purest form, stated in the context where it matters most: the court accepted that the legislature may well have intended to catch what the appellants did, and refused to stretch the words to catch it.
When the literal rule stops
The rule governs where the words are clear. It stops in three situations, and naming them is what turns a bare statement of the rule into an answer.
Ambiguity. Where the words are capable of two meanings, the literal rule cannot choose between them, because both are literal. The court then goes to the other rules and to the aids.
Absurdity, repugnance or inconsistency. Where the ordinary meaning produces a result that is manifestly absurd, or is repugnant to the rest of the Act, the golden rule allows the meaning to be modified. That is [The Golden Rule].
A meaning that defeats the object. Where the ordinary meaning would leave the mischief the Act was passed to remedy untouched, the mischief rule allows the court to prefer the construction that suppresses the mischief and advances the remedy. That is [The Mischief Rule, or the Rule in Heydon's Case].
Notice that all three are exceptions to the literal rule and presuppose it. A student who presents the three rules as three alternatives, to be chosen according to taste, has misunderstood the structure. The literal rule is the rule; the other two are what a court does when it fails.
A worked example
A fictitious Municipal Act provides:
21. No person shall keep any dog in any tenement without a licence issued under this Act, and the licence fee shall be one hundred rupees per dog per year.
Case one. Shanti keeps two dogs without a licence. The words are plain, they cover her, and the literal rule applies them. Whether one hundred rupees is too much is not the court's business.
Case two. Sunil keeps a wolf. The literal rule asks what "dog" ordinarily means, and a wolf is not ordinarily called a dog. There is a casus omissus: the legislature has not provided for wolves. A court applying the literal rule does not extend "dog" to cover it, however sensible that would be. The remedy is an amendment.
Case three. Meera keeps one dog and applies for a licence, and the clerk demands two hundred rupees on the ground that the dog is very large. Section 13 of the General Clauses Act does not help him, and neither does anything else: the fee is one hundred rupees per dog per year, and the words admit of nothing else.
The Literal Rule
Case four. Fatima keeps a dog in a shop, not a tenement. If "tenement" is defined in the Act, that definition governs. If it is not, its ordinary meaning is a dwelling or a holding, and whether a shop falls within it may genuinely be doubtful, in which case the literal rule has run out and the court moves on.
Case five. The section, read literally, would prohibit a blind person from keeping a guide dog without a licence. That is not absurd, merely strict, so the golden rule does not open. Had the section read "no person shall keep any dog", and had another section of the same Act required every police station to keep a dog, the two would be repugnant and the golden rule would.
Distinctions table
| Literal rule | Golden rule | Mischief rule | |
|---|---|---|---|
| Starting point | The ordinary meaning of the words | The ordinary meaning of the words | The state of the law before the Act |
| Applies when | The words are clear | The ordinary meaning is absurd, repugnant or produces inconsistency | The words are ambiguous, or the ordinary meaning would leave the mischief untouched |
| What the court does | Applies the words | Modifies the meaning, and even the structure of the sentence, so far as is necessary | Adopts the construction that suppresses the mischief and advances the remedy |
| Risk | A result the legislature would not have wanted | The court substituting its view of what is absurd | The court substituting its view of the purpose |
| The literal rule | The golden and mischief rules | |
|---|---|---|
| Status | The primary rule | Exceptions to it |
| Requires the words to be | Clear | Doubtful, absurd, repugnant or self-defeating |
| Order of resort | First, always | Only when the first fails |
What the rule does NOT mean
It does not mean reading one sentence in isolation. The ordinary meaning is the ordinary meaning in context, and the context is the whole Act.
It does not mean ignoring definitions. A defined word bears its defined meaning even where that is far from ordinary usage.
It does not mean the dictionary decides. A dictionary gives the range; the context selects. And in a commercial or fiscal statute the trade meaning governs, as [External Aids to the Interpretation of a Statute] shows.
It does not mean a court must produce an absurd result. That is what the golden rule is for. What a court may not do is depart from clear words merely because it thinks the result unwise.
The Literal Rule
It is not "strict construction". Strict construction is a rule about which of two available meanings to prefer in a penal or taxing provision, and it presupposes that there are two.
Limits and criticism
It can defeat the legislature's evident purpose. A drafting slip is applied as written, and the court says that the remedy is an amendment. That is a real cost, and it is defended on the ground that the alternative, letting judges repair statutes, costs more.
"Ordinary meaning" is not always ordinary. Words shift over time and differ between communities, which is why the period of the Act and the trade usage both matter.
It hides choices. A court that says the words are plain has already decided that they are, and where two constructions are genuinely available the assertion of plainness can conceal a preference. The honest test is whether an intelligent reader could take the words the other way.
Quick revision
Statement: give the words their ordinary, plain, natural and grammatical meaning; where they are clear, apply them, whatever the consequences; the intention of the legislature is to be gathered from the words used.
Steps: read the whole Act; check the definitions clause, then the General Clauses Act, then ordinary usage; respect grammar; apply s.13 of the General Clauses Act, masculine includes feminine and singular includes plural unless repugnant, and s.9 on "from" and "to"; and stop when the meaning is clear.
Maxims: casus omissus, a case omitted cannot be supplied by the court; expressum facit cessare tacitum, what is expressed ends what is implied.
Authority: Tolaram Relumal v. State of Bombay, it is not competent to the court to stretch the meaning of an expression used by the legislature in order to carry out its intention.
Stops at: ambiguity, absurdity or repugnance, and a meaning that defeats the object. The other two rules are exceptions to this one, not alternatives to it.
Test yourself
1. State the literal rule and the reasons for its primacy.
The words of a statute are to be given their ordinary, plain, natural and grammatical meaning, and where the language is clear and unambiguous the court must give effect to it whatever the consequences. It is primary for three reasons: the text is the only thing the legislature actually enacted, so departing from it means applying something nobody voted on; the separation of powers reserves law-making to the legislature; and certainty requires that people be able to order their affairs by reading the statute.
2. What is a casus omissus, and what does a court do about it?
A casus omissus is a case that the statute has failed to provide for. The rule is that a casus omissus cannot be supplied by the court: if the legislature has not covered a situation, the court does not write the provision in, however obvious the omission or however sensible the extension would be. The remedy lies with the legislature by amendment. The rule is the strictest expression of the literal rule and it is where that rule is hardest to accept.
The Literal Rule
3. How does Tolaram Relumal illustrate the literal rule?
Section 18(1) of the Bombay Rents Act made it an offence for a landlord to receive a premium in respect of the grant, renewal or continuance of a lease, and the appellants had received money under an executory agreement to grant a lease of premises not yet built. The Court held that the words presuppose a lease that exists or comes into existence at about the same time, and set the conviction aside, saying that where two reasonable constructions of a penal provision are possible the court leans towards the one that exempts the subject, and that it is not competent to the court to stretch the meaning of an expression used by the legislature in order to carry out its intention.
4. In what three situations does the literal rule stop?
Where the words are ambiguous, because both meanings are literal and the rule cannot choose between them. Where the ordinary meaning produces a result that is manifestly absurd, or repugnant to or inconsistent with the rest of the Act, in which case the golden rule permits the meaning to be modified. And where the ordinary meaning would leave untouched the mischief the Act was passed to remedy, in which case the mischief rule permits the construction that suppresses the mischief and advances the remedy.
5. Is the literal rule the same as strict construction?
No. The literal rule is the general rule for reading any statute: give the words their ordinary meaning and apply them if they are clear. Strict construction is a rule about choosing between two meanings that are both available, and it applies to particular classes of statute: in a penal provision the court leans towards the construction that exempts the subject from penalty, and in a taxing provision the subject is not to be taxed unless the charge is clear. Strict construction therefore presupposes an ambiguity that the literal rule by itself cannot resolve.
6. What is the strongest criticism of the literal rule, and what is the answer to it?
That it can defeat the evident purpose of the legislature: a drafting slip is applied as written, and a person escapes a provision plainly meant to catch them, or is caught by one plainly not meant for them. The answer is threefold. The alternative, allowing courts to repair statutes, is a greater intrusion on the legislature and a greater loss of certainty. The golden rule already relieves against absurdity and repugnance. And the mischief rule already permits a purposive reading where the words are doubtful, so the literal rule does its damage only where the words are clear and the result is merely unwelcome.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.