We ‘the people’ clause of a constitution

We the People of India- Indian Constitution

The People.”

The opening words of the preamble proclaim that the Constitution of the Commonwealth of Australia is founded on the will of the people whom it is designed to unite and govern. Although it proceeds from the people, it is clothed with the form of law by an Act of the Imperial Parliament of Great Britain and Ireland, the Supreme Sovereign Legislature of the British Empire. The legislative supremacy of the British Parliament is, according to Dicey and all other modern jurists, the keystone of the law of the British Constitution. John Austin holds (Jurisprudence, vol. I. pp. 251–255) that the sovereign power is vested in the King, the House of Lords, and the House of Commons or electors. Referring to Austin’s definition, Dicey points out that the word “sovereignty” is sometimes employed in a political rather than in a strictly legal sense. That body is politically sovereign or supreme in a State, the will of which is ultimately obeyed by the citizens of the State. In this sense of the word the electors of Great Britain may be said to be, together with the Crown and the Lords, or perhaps in strict accuracy, independently of the King and the Peers, to be the body in which the political sovereignty is vested. (Dicey, Law of the Constitution, p. 67.)

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Whereas – Meaning of the word used in Preamble

“Whereas.”

The proper function of a preamble is to explain and recite certain facts which are necessary to be explained and recited, before the enactments contained in an Act of Parliament can be understood. A preamble may be used for other reasons: to limit the scope of certain expressions or to explain facts or introduce definitions. (Lord Thring, Practical Legislation, p. 36.) The preamble has been said to be a good means to find out the intention of a statute, and, as it were, a key to the understanding of it. It usually states, or professes to state, the general object and meaning of the Legislature in passing the measure. Hence it may be legitimately consulted for the purpose of solving an ambiguity or fixing the connotation of words which may possibly have more than one meaning, or determining the scope or limiting the effect of the Act, whenever the enacting parts are, in any of these respects, open to doubt. But the preamble cannot either restrict or extend the legislative words, when the language is plain and not open to doubt, either as to its meaning or its scope. (Maxwell on the Interpretation of Statutes [1875], pp. 35–45.)

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Marginal Notes of an Act

MARGINAL NOTES

The marginal notes of the Act and the Constitution are copious and systematic; yet the bulk of authority would seem to show that they form no portion of the law. In Claydon v. Green, L.R. 3 C.P. 511, Mr. Justice Willes said:—

“Something has been said about the marginal note in section 4 of 9 Geo. IV. c. 61. I wish to say a word upon that subject. It appears from Blackstone’s Commentaries, vol. I. p. 183, that formerly, at one stage of the Bill in Parliament it was ordered to be engrossed upon one or more rolls of parchment. That practice seems to have continued down to the session of 1849, when it was discontinued, without, however, any statute being passed to warrant it (see May’s Parliamentary Practice, 3rd ed., 382). Since that time, the only record of the proceedings of Parliament—the important proceedings of the highest tribunal of the Kingdom—is to be found in the copy printed by the Queen’s printer. But I desire to record my conviction that this change in the mode of recording them cannot affect the rule which treated the title of the Act, the marginal notes, and the punctuation, not as forming part of the Act, but merely as temporanea expositio. The Act, when passed, must be looked at just as if it were still entered upon a roll, which it may be again if Parliament should be pleased so to order; in which case it would be without these appendages, which, though useful as a guide to a hasty inquirer, ought not to be relied upon in construing an Act of Parliament.”

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Heading in statute- purpose

HEADINGS.—The headings of a portion of a statute may be referred to in order to determine the sense of any doubtful expressions in sections ranged under it. (Hammersmith and City Railway Co. v. Brand, L.R. 4 H.L. 171, 203; but see—per Lord Cairns, id. p. 217. Eastern Counties Rail. Co. v. Marriage, 9 H.L. Ca. 32. Union Steamship Co. of N.Z. v. Melbourne Harbour Trust, 9 App. Ca. 365.)

An ‘Act’ and its limbs

“An Act.”

An Act may, for the purpose of analysis and classification, be considered as consisting of the following parts:—

(1) Title,

(2) Preamble,

(3) Words of enacting authority,

(4) The Covering Clauses

(5) The Constitutent divisions : Chapters, Headings, Parts, and Sections

(6) The Schedule,

(7) The Marginal Notes.

(8)  The Heading

(9) Punctuation marks


 

Title of a statute

TITLE.—The title of a Statute forms no part of the law, and in strictness ought not to be taken into consideration at all. No more argument can be justly built upon the title prefixed in some editions of the Statutes than upon the marginal notes against the several sections—per Tindal, C.J., in delivering to the House of Lords the opinion of the consulted Judges. (Birtwistle v. Vardill, 1839, 7 Cl. and Finn., p. 929.)

The title of a statute is no part of the law—per Lord Mansfield, Rex. v. Williams, 1 W. Bl. 95. Per Lord Hardwicke, Att.-Gen. v. Lord Weymouth, Ambl. 25. Per Pollock, C.B., Salkeld v. Johnson, 2 Exch. 283, Digest of English Case Law, Vol. XIII., p. 1881.

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Elementary principle of interpretation

In Grasim Industries Ltd. v. Collector of Customs, Bombay, (2002) 4 SCC 297, this Court took the view:

10. No words or expressions used in any statute can be said to be redundant or superfluous. In matters of interpretation one should not concentrate too much on one word and pay too little attention to other words. No provision in the statute and no word in any section can be construed in isolation. Every provision and every word must be looked at generally and in the context in which it is used. It is said that every statute is an edict of the legislature. The elementary principle of interpreting any word while considering a statute is to gather the mens or sententia legis of the legislature. Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to take upon itself the task of amending or alternating the statutory provisions. Wherever the language is clear the intention of the legislature is to be gathered from the language used. While doing so, what has been said in the statute as also what has not been said has to be noted. The construction which requires for its support addition or substitution of words or which results in rejection of words has to be avoided….

In Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111, this Court held:

24. True meaning of a provision of law has to be determined on the basis of what it provides by its clear language, with due regard to the scheme of law.

25. Scope of the legislation on the intention of the legislature cannot be enlarged when the language of the provision is plain and unambiguous. In other words statutory enactments must ordinarily be construed according to its plain meaning and no words shall be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute.

In the case of Harshad S. Mehta v. State of Maharashtra, (2001) 8 SCC 257, this Court opined:

34. There is no doubt that if the words are plain and simple and call for only one construction, that construction is to be adopted whatever be its effect….

19. In the case of Union of India v. Hansoli Devi, (2002) 7 SCC 273, this Court observed:

9…It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act….

20. In the case of Patangrao Kadam v. Prithviraj Sayajirao Yadav Deshmukh, (2001) 3 SCC 594, this Court took the view:

12. Thus when there is an ambiguity in terms of a provision, one must look at well-settled principles of construction but it is not open to first create an ambiguity which does not exist and then try to resolve the same by taking recourse to some general principle.

Deeming provision means

It is well known that a deeming provision is a legal fiction and an admission of the non-existence of the fact deemed. (See M/s. J.K. Cotton Spinning and Weaving Mills Ltd. and Anr. v. Union of India and Ors., AIR 1988 SC 191 at 202). Therefore, while interpreting a provision creating a legal fiction, the Court has to ascertain the purpose for which the fiction is created.

The law on this aspect has been very neatly summed-up by Lord Justice James in Ex Parte Walton, In re Levy (1881) 17 Ch. D. 746. At page 756 the learned Judge formulated as follows:

…When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to….

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If a directs to do an act in certain manner, it necessarily prohibits doing of the act in any other manner.

If a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed.

The principle behind the Rule is that if this were not so, the statutory provision might as well not have been enacted. A Magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in Section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of Section 164 including the safeguards contained in it for the protection of Accused persons would be rendered nugatory. The section, therefore, by conferring on Magistrates the power to record statements or confessions, by necessary implication, prohibited a Magistrate from giving oral evidence of the statements or confessions made to him.

Municipal Corporation of Greater Mumbai (MCGM) Vs. Abhilash Lal & Ors-15/11/2019

Function of a proviso

Proviso means

In Nagar Palika Nigam vs. Krishi Upaj Mandi Samiti and others (supra), this Court held:

“8. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins vs. Treasurer of Survey 1880 (5) QBD 170, (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory vs. Subhash Chandra Yograj Sinha (AIR 1961 SC 1596) and Calcutta Tramways Co. Ltd. vs. Corporation of Calcutta (AIR 1965 SC 1728); when one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso.

The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. “If the language of the enacting part of the statute does not contain the provisions which are said to occur in it you cannot derive these provisions by implication from a proviso.” Said Lord Watson in West Derby Union vs. Metropolitan Life Assurance Co. 1897 AC 647 (HL). Normally, a proviso does not travel beyond the provision to which it is a proviso. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. (See A.N. Sehgal and others vs. Raje Ram Sheoram and others (AIR 1991 SC 1406), Tribhovandas Haribhai Tamboli vs. Gujarat Revenue Tribunal and others (AIR 1991 SC 1538) and Kerala State Housing Board and others vs. Ramapriya Hotels (P) Ltd. and others (1994) 5 SCC 672).”


Ref: AIR 2010 SC 112 : (2009) 12 SCR 929 : (2009) 16 SCC 1