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Published : June 06, 2014 | Author : elbepeter
Category : Constitutional Law | Total Views : 5102 | Rating :

Dr Elbe Peter, MDS, LL.B, DCR. orthodontist kerala

Contemporanea expositio est optima et fortissinia in lege

the essence of law lies in the spirit, not its letter, for the letter is significant only as being the external manifestation of the intention that underlies it” – Salmond

Interpretation means the art of finding out the true sense of an enactment by giving the words of the enactment their natural and ordinary meaning. It is the process of ascertaining the true meaning of the words used in a statute. The Court is not expected to interpret arbitrarily and therefore there have been certain principles which have evolved out of the continuous exercise by the Courts. These principles are sometimes called ‘rules of interpretation’.

The object of interpretation of statutes is to determine the intention of the legislature conveyed expressly or impliedly in the language used. As stated by SALMOND, "by interpretation or construction is meant, the process by which the courts seek to ascertain the meaning of the legislature through the medium of authoritative forms in which it is expressed."

Interpretation is as old as language. Elaborate rules of interpretation were evolved even at a very early stage of the Hindu civilization and culture. The importance of avoiding literal interpretation was also stressed in various ancient text books – “Merely following the texts of the law, decisions are not to be rendered, for, if such decisions are wanting in equity, a gross failure of Dharma is caused.” Words spoken or written are the means of communication. Where they are possible of giving one and only one meaning there is no problem. But where there is a possibility of two meanings, a problem arises and the real intention is to be sorted out. It two persons communicating with each other are sitting together; they can by subsequent conversation clear the confusion and make things clear. But what will happen if a provision in any statute is found to convey more than one meaning?

Interpretation thus is a familiar process of considerable significance. In relation to statute law, interpretation is of importance because of the inherent nature of legislation as a source of law.

The process of statute making and the process of interpretation of statutes are two distinct activities. In the process of interpretation, several aids are used. They may be statutory or nonstatutory. Statutory aids may be illustrated by the General Clauses Act, 1897 and by specific definitions contained in individuals Acts whereas non-statutory aids is illustrated by common law rules of interpretation (including certain presumptions relating to interpretation) and also by case-laws relating to the interpretation of statutes. Lord Denning in Seaford Court Estates Ltd. V Asher, “English Knowledge is not an instrument of mathematical precision… It would certainly save the judges from the trouble if the acts of parliament were drafted with divine precision and perfect clarity. In the absence of it, when a defect appears, a judge cannot simply fold hand and blame the draftsman…”

It is not within the human powers to foresee the manifold permutations and combinations that may arise in the actual implementation of the act and also to provide for each one of them in terms free from all ambiguities. Hence interpretation of statutes becomes an ongoing exercise as newer facts and conditions continue to arise.

The Judges and the Lawyers whose duty it is to interpret statutes have no opportunity to converse with the Legislature which had enacted a particular statute. The Legislature, after enacting statutes becomes functus officio so far as those statutes are concerned. It is not their function to interpret the statutes. Thus two functions are clearly demarcated. Legislature enacts and the Judges interpret. The difficulty with Judges is that they cannot say that they do not understand a particular provision of an enactment. They have to interpret in one way or another. They cannot
remand or refer back the matter to the Legislature for interpretation. That situation led to the birth of principles of interpretation to find out the real intent of the Legislature. Consequently, the Superior Courts had to give us the rules of interpretation to ease ambiguities, inconsistencies, contradictions or lacunas. The rules of interpretation come into play only where clarity or precision in the provisions of the statute are found missing. Good enactments are those which have least ambiguities, inconsistencies, contradictions or lacunas. Bad enactments are gold mine for lawyers because for half of the litigation the legislative draftsmen are undoubtedly the cause. The purpose of the interpretation of the statute Is to unlock the locks put by the Legislature. For such unlocking, keys are to be found out. These keys may be termed as aids for interpretation and principles of interpretation.

The aids for interpretation may be divided into two categories, namely, Internal and External.
The Internal Aids are those which are found within the statute. They may be as follows:-
1. Long title of the statute.
2. Preamble of the statute.
3. Chapter Headings of the statute.
4. Marginal Notes to every section of statute.
5. Punctuations.
6. Illustrations given below the sections.
7. Definitions.
8. Provisos.
9. Explanation.
10. Saving Clauses and non-obstante Clauses.

External Aids for interpretation are those which are not contained in the statute but are found else-where. They may be as follows:-
1. Historical background.
2. Statement of objects and reasons.
3. The original Bill as drafted and introduced.
4. Debates in the Legislature.
5. State of things at the time a particular legislation was enacted.
6. Judicial construction.
7. Legal dictionaries.
8. contemporanea exposito.
9. Commonsense.

Contemporanea Expositio
Contemporanea expositio est optima et fortissinia in lege: meaning Contemporaneous exposition is the best and strongest in law. It is said that the best exposition of a statute or any other document is that which it has received from contemporary authority. This maxim has been confirmed by the Apex Court in Desh Bandhu Gupta vs. Delhi Stock Exchange Asson. Ltd. AIR 1979 SC 1049, 1054. Contemporanea exposito is a guide to the interpretation of documents or statutes. It is one of the important external aids for interpretation. How ever great care must be taken in its application. When a document was excecuted between two parties, there intention can be known by their conduct at the time and after the execution of the instrument. Where the words of the deed are ambiguous, the court may call in the acts done under it as a clue to the intention of the parties. Their acts are the result of usages and practices in the society. Therefore their acts are useful as an external aid to interpretation of the deed. This principle may also be applied in case of statutes.

Contemporanea expositio est optima et fortissinia in lege means usage or practice developed under a statute is indicative of the meaning ascribed to its words by contemporary opinion.

The maxim Contemporanea expositio as laid down by Lord Coke was applied to construing ancient statutes, but usually not applied to interpreting Acts or statutes which are comparatively modern. The meaning publicly given by contemporary or long professional usage is presumed to be true one, even where the language has etymologically or popularly a different meaning. It is obvious that the language of a statute must be understood in the sense in which it was understood when it was passed, and those who lived at or near that time when it was passed may reasonably be supposed to be better acquainted than their descendants with the circumstances to which it had relation, as well as with the sense then attached to legislative expressions. Usages and practice developed under a statute is indicative of the meaning ascribed to its words by contemporary opinion and in case of an ancient statute, such reference to usage and practice is admissible. He said a uniform notorious practice continued under an old statute and inaction of the legislature to amend the same are important factors to show that the practice so followed was based on correct understanding of the law. According to Lord Ellenborough, Communis opinio is evidence of what the law is. When the practice receives judicial or legislative approval it gains additional weight and is to be more respected.

According to Martin B, In construing old statute it has been usual to pay great regard to the construction put up on them by the judges who lived at or soon after the time when they were made, because they were best able to judge of the intention of the makers at the time. The doctrine of stare decisis may also be applied when the law is settled in a state for over 100 years by considered view of the High Court of that state.

This principle of ‘contemporanea exposito’ was applied by the Supreme Court in National and Grindlays Bank v Municipal Corporation for Greater Bombay, AIR 1969 SC 1048 while construing Bombay Municipal Corporation Act, 1888. The apex court also referred to the actual practice in the matter of appointment of judges of Supreme Court and High Court in the context of interpreting Articles 74 and 124 of the Constitution and observed that the practice being in conformity with the constitutional scheme should be accorded legal sanction by permissible constitutional interpretation. (Supreme Court Advocates on Record Association v Union of India, AIR 1994 SC 268.)

In Jones v Brown (2 Exch.329) Pollock observed, “it is by no means an inconvenient mode of construing statutes to presume that the legislature was aware of the state of the law at the time they were passed”

While disposing Salkeld v Johnson (2Exch.256) the court of Exchequer explained the concept of Contemporanea exposito as follows, “we propose to construe the act according to the legal rules for the interpretation of statutes, principally by the words of the statute itself. Which we are to read in their ordinary sense and only modify or alter so far as it may be necessaary to avoid some manifest absurdity, but no further. It is proper also to consider the state of the law which it proposes or purports to alter the mischiefs which existed and which it was intented to remedy, and the nature of the remedy provided, and to look at the statutes in pari materia, as a means of explaining the statute. These are the proper modes of ascertaining the intention of the legislature.

Lord Machnagten observed, “when you find legislation following a continuous practice repeating the very words on which that practice was founded, it may perhaps fairly be inferred that the legistalure in re enacting the statute intented those words to be understood in their recieved meaning, and perhaps it might be argued that the inference grows stronger with each successive reenactment.

In Clyde Navigation trustees v Larid (1883) 8 AC 658, Lord Watson observed, “In my opinion such usage as has been termed contemporanea exposito is of no value in construing a British statute of the year 1858”. When there is an ambigious statement in an act passed one or two centuries ago it may be legitimate to refer to the construction put op on their expression through out a long course of years by the unanimous consent of all parties interested as excercising what must presumably have been the intention of the legislature at the remote period.

Application of the maxim – Contemporanea Exposito
Applicable only to ancient statutes.
The maxim contemporanea exposito is applicable in construing ancient statutes, but not to intepreting acts which are comparatively modern. In a modern progressive society it would be un reasonable to confine the intention of a legislature to the meaning attributable to the words used at the time the law was made and unless a contrary intention appears an interpretation should be given to the words used to take in new facts and situations if the words are capable of comprehending them. Lord Watson stated that the maxim is of no value in construing a british statute of the year 1858, when there is ambiguous statement in an act passed 2 centuries ago it may be legitimate to refer to the construction put up on their expression through out a long course of years by the unanimous consent of all parties interested as excercising what must presumably have been the intention of the legislature at the remote period.
The supreme Court has refused to apply the principle of contemporanea exposito to the Telegraph Act 1885, and the Evidence Act 1872, but the principle was applied in construing the Bombay Muncipal Corporation Act 1888.

JK Cotton Spinning and Weaving Mills Ltd and another v Union of India and Others AIR 1988 SC 191.
The appellant JK Cotton Spinning and weaving Mills Ltd, has a composite mill where it manufactures fabrics of different types. In order to manufacture the said fabrics, yarn is obtained at an intermediate stage. The yarn so obtained is further processed in an integrated process in the composite mill for weaving and the same in to fabrics. The appellants have to pay the excise duty on the different kinds of fabrics, which are removed from the factory.

The Collector Central Excise issued a notice under rule 9(1) of the central excse rules to the appellants demanding to pay central excise on the yarn accumulated at the factory at intermediate stages. The appellants contented that they would be held liable to pay central excise only when the yarn would be removed from factory, but not at intermediate stages, the appellants pleaded contemporanea exposito. The supreme court interpreted the central excise rules and gave judgement against the appellants and dismissed the appeal. The learned counsel relied on support from the decision in KP Varghese v the Income tax officer, Ernakulam (AIR 1981 SC 1922) for which the court observed that in the relied case there was ambiguity and a word was capable of two construction hence the maxim contempranea expositio was applied, but in this case there is no ambiguity and hence the maxim cannot be imported.

National Textile Corporation, New Delhi and another v Swadeshi Mining and manufacturing Co Ltd, Lucknow and others AIR 1988 SC 782. In the instant case the question, whether 10,00,000 shares in Swadeshi polytex Ltd and 1,71,834 shares in swadeshi mining and manufacturing co Ltd held by Swadeshi cotton Mills vest in the central Govt under section 3 of the swadeshi cotton Mills co Ltd act 1986 came up for consideration before Supereme Court. The Appellants contented that production of certain documents were necessary for the said vesting of the shares with Central govt. But Supreme Court held that such production of documents were not necessary under the provisions of the act. The question can be resolved by interpretation of the relavant provisions of the act it self and there is no ambiguity hence the well settled principle of contemporanea expositio is not applicable here and is relavant only in construing old statutes.

N Suresh Nathan and another v Union of India 1992 1 SCC 584, the case relates to service maters. The question of law arose in this case was about promotion to the post of Assistant engineers in PWD, junior engineers pocessing degree in civil engineering with 3 years service in the grade are eligible for promotion as assistant engineers. Diploma holder junior engineers obtaining degree while in service were not entitled to count their service prior to obtaining the degree for computing the period of three years for the purpose of promotion. The administrative tribunal gave judgement against the diploma holders and later Supreme court reversed the decision. Here the principle laid was, construction is in consonance with long standing practice prevailing in the concerned department to be preferred.

Limitation of the maxim, Contemporanea Exposito
a) Useful only in case of ambiguity – the usage and practice can be used in interpretation when the language is ambiguous only. If the language is unambigous the usage and practice cannot be used in interpretation.

b) Custom is given more value and priority than the act of the parties , as elucidated in optima est legis interpres consuetudo (custom is the best interpreter of the law). For example in a statute the language used in it gives doubtful meanings and after the statute came in to force, if the courts gives various decisions clarifying the terms used in the statute and have reduced the uncertainity to a fixed rule, then in such cases custom followed based on the principles laid down is to be followed for interpretation, contemporanea exposito based on the ambiguity cannot be raised.

c) Useful only for ancient Acts, and cannot be used for modern Acts.

d) Cannot be applied in case of broken usages and practices – If any usages or practices are broken or interrupted, such broken usages or practices cannot be considered as an aid to interpretation. Due to the breakage such usage and practices looses its value.

e) Cannot be used to substantiate an implied repeal or quasi repeal of an act.

The object of interpretation of statutes is to determine the intention of the legislature conveyed expressly or impliedly in the language used. According to salmond, by interpretation or construction, it is meant that the process by which the courts seek to ascertain the meaning of the legislature through the medium of authoritative forms in which it is expressed. To assist the task of interpretation and construction court resort to certain internal and external aids. These internal and external aids to interpretation is very essential at times to construe ambigious terms and provisions. Contemporanea expositio is an important external aid in interpretation of statues. The usages and practices followed after the enactment of statute speaks for itself, but this can be applied only to very old statues and has little importance in modern statutes.
Table of cases
1) Desh Bandhu Gupta vs. Delhi Stock Exchange Asson. Ltd. AIR 1979 SC 1049, 1054.
2) National and Grindlays Bank v Municipal Corporation for Greater Bombay, AIR 1969 SC 1048
3) Supreme Court Advocates on Record Association v Union of India, AIR 1994 SC 268.)
4) Jones v Brown (2 Exch.329)
5) Salkeld v Johnson (2Exch.256)
6) Clyde Navigation trustees v Larid (1883) 8 AC 658
7) JK cotton Spinning and weaving Mills Ltd and another v Union of India and Others AIR 1988 SC 191.
8) KP Varghese v the Income tax officer, Ernakulam (AIR 1981 SC 1922)
9) National Textile Corporation, New Delhi and another v Swadeshi Mining and manufacturing Co Ltd, lucknow and others AIR 1988 SC 782
10) N Suresh Nathan and another v Union of India 1992 1 SCC 584

1) Principles of statutory Interpretation, G P Singh 7 th Edn, Wadhwa & company, Nagpur
2) The interpretation of statute, Maxwell – 13th edn
3) The interpretation of Statutes – G V Reddy, SLBPL, Hyderabad.
4) Justice A.K Srivastava, Delhi High Court, JTRI Journal, issue 3, July- September,1995
5) CA. Rajkumar S. Adukia, Interpretation of statutes, www.caaa.in

Authored by: Dr Elbe Peter, MDS, LL.B, Dip.Clin.Res / The author can be reached at: elbepeter@legalserviceindia.com

Writing award This article has been Awarded Certificate of Excellence for Original Legal Research work by our Penal of Judges

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