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Published : June 08, 2012 | Author : Ananya
Category : Miscellaneous | Total Views : 6431 | Rating :

  
Ananya
Ananya Kapoor 4th year student, B.A.LLB(H), Amity Law School, affiliated to GGSIPU, New Delhi
 

Interpretation Of Statutes - importance of the words “and” and “or”

To ensure that justice is made available to all, the judicial system has been evolved in all nations. It is extremely important and infact necessary also that the Courts interpret the law in such a manner that ensures ‘access to justice’ to the maximum. For this purpose, the concept of ‘Canons of Interpretation’ has been expounded. The Canons are those rules that have been evolved by the Judiciary to help Courts determine the meaning and the intent of legislation.

SALMOND has defined it as “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.”

A Statute is an edict of the Legislature and it must be construed “to the intent of them who make it” and “duty of the judicature is to act upon the true intention of the Legislature- the mens or sententia legis.”

Need For Interpretation
In his The Law-Making Process, Michael Zander gives three reasons why statutory interpretation is necessary:

1. Complexity of statutes in regards to the nature of the subject, numerous draftsmen and the blend of legal and technical language can result in incoherence, vague and ambiguous language.

2. Anticipation of future events leads to the use of indeterminate terms. The impossible task of anticipating every possible scenario also leads to the use of indeterminate language. Judges therefore have to interpret statutes because of the gaps in law. Examples of inderterminate language include words such as “reasonable”. In this case the courts are responsible for determining what constitutes the word “reasonable”.

3. The multifaceted nature of language. Language, words and phrases are an imprecise form of communication. Words can have multiple definitions and meanings. Each party in court will utilize the definition and meaning of the language most advantageous to their particular need. It is up to the courts to decide the most correct use of the language employed.

General Rules of Interpretation, Internal Aids to Interpretation, External Aids to Interpretation, Literal Rule, Golden Rule, Mischief Rule, Subsidiary Rules and Harmonious Construction are some of the most important rules.

Conjunctive And Disjunctive Words
Prima Facie it may seem that interpretation of the words “and” and “or” need not been considered essential, are be subsidiary and do not need much attention. However, several times, it is just through the interpretation of the words “and” and “or” that the whole meaning of the Statute has been changed and the Judicature has evolved a new principle altogether which was never expected.

The aim of this article is to lay light on the importance and the need for correct interpretation of the words “and” and “or”, as an aid to interpretation to ensure that effect is given to the true intent of the Legislature.

The word “or” is normally disjunctive and “and” is normally conjunctive but at times they are read as vice versa to effectuate the manifest intent of the legislature as disclosed from the context. As stated by SCRUTTON L.J, ‘You do sometimes read “or” as “and” in a statute. But you do not do it unless you are obliged because “or” does not generally mean “and” and “and” does not generally mean “or”.

However, the rule is that “or” is normally disjunctive and “and” is normally conjunctive and a departure from the same is not available unless the very aim and purpose of the Statute so requires. The rationale being that if the Legislature wishes to use “and” in a particular statutory provision, then it has every right to do and nothing prevents them for doing so. So if the word “and” has not been used and instead the word “or” has been used, it is obvious that the Legislature has purposively used the word “or”. Unless, it is not proved, that there was some reason or difficulty that prevented the Legislature from using the “and”, literal interpretation has to be applied to the statutory provision and the rule - “or” is normally disjunctive and “and” is normally conjunctive has to be given effect to.

In my opinion, this rule is an extension of the “Purposive Interpretation Rule.” Purposive theory is a theory of statutory interpretation that holds that Courts should interpret legislation in light of the purpose behind the legislation. According to this theory Courts are not want to bound by the text. It is a pragmatic approach or rather a functional aspect of interpreting law, wherein deviation from literal rule is permitted for the larger interest of the society.

A Judge must be a jurist endowed with the legislator's wisdom, historian's search for truth, prophet's vision, capacity to respond to the needs of the present, resilience to cope with the demands of the future and to decide objectively disengaging himself/herself from every personal influence or predilections. Therefore, the judges should adopt purposive interpretation of the dynamic concepts of the Constitution and the Act with its interpretative armoury to articulate the felt necessities of the time.

I strongly feel that the rule which permits deviation from the usual and ordinary interpretation of the words “and” and “or”, is an extension of the Purposive Theory wherein Courts have conferred upon themselves the power to extend the meaning of the “and” and “or” and give them a meaning and interpretation, which though not directly stated by the Legislature, yet, aims at achieving the real purpose of Legislature.

Judicial Precedents
In Manmohan Das Shah v. Bishun Das, the Supreme Court held that-

"The ordinary rule of construction is that a provision of a Statute must be construed in accordance with the language used therein unless there are compelling reasons. Such as, where a literal construction would reduce the provision to absurdity or prevent the manifest intention of the legislature from being carried out. There is no reason why the word "or" should be construed otherwise than in its ordinary meaning. If the construction suggested by Mr. Desai were to be accepted and the word "or" were to be construed as meaning "and", it would mean that the construction should not only be such as materially alters the accommodation but is also such that it would substantially diminish its value. ...........”

In Kamta Prasad Aggarwal v. Executive Engineer, Ballabhgarh, the Apex Court held that "depending upon the context, "or" may be read as "and" but the Court would not do it unless it is so obliged because "or" does not generally mean "and" and "and" does not generally mean "or".

Furthermore, again in Hyderabad Asbestos Cement Products v. Union of India, the Court restated the rule for interpretation of the words ‘and’ and ‘or’ and held as that -

"The language of the rule is plain and simple. It does not admit of any doubt in interpretation. Provisos 1(i) and 2(i) are separated by the use of conjunction "and". They have to be read conjointly. The requirement of both the provisos has to be satisfied to avail the benefit."

Following are examples of few cases when the rule of interpreting the word “or” as normally disjunctive and “and” as normally conjunctive has been forgone by the Judges to prevent injustice or to give effect to the real purpose of the Statute-

To prevent use of arbitrary powers
The words ‘owner or master’ as they occur in Section 1(2) of the Oil in Navigation Waters Act, 1955 were construed by the House of Lords to mean ‘owner and master’ making both of them guilty of the offence under that Section as reading of “or” as “or” would have produced as absurd result of leaving it to the Executive to select either the owner or master for being prosecuted without the Act giving any guidance. Such a result would have been against constitutional practice.

To ensure fulfillment of duties
The expression ‘established or incorporated’ used in University Grants Commission Act was read as ‘established and incorporated’ having regard to the constitutional scheme and in order to ensure that the Act is able to achieve its objectives and the University Grants Commission is able to perform its duties and responsibilities.

Negative and Positive Condition
A distinction may be made between positive and negative condition prescribed by a Statute for acquiring a right or benefit. Positive conditions separated by “or” are read in the alternative but negative conditions connected by “or” are construed as cumulative and “or” is read as “nor” or “and”.

Prevention of Crime
In section 7 of the Official Secrets Act, 1920, which reads ‘Any person who attempts to commit any offence under the principal Act or this Act, or solicits or incites or endeavors to persuade another person to commit an offence, or aids or abets and does any act preparatory to the commission of an offence’, the word “and” printed in Italics was read as “or” for by reading “and” as “and” the result produced was unintelligible and absurd and against the clear intention of the Legislature. Thus even a person who does an act preparatory to the commission of an offence is equally liable.

Welfare of the Public
Section 3(b)(i) of the Drugs Act, 1940, (before its amentndment in 1962 ) defined drug as follow: ‘All medicines for internal or external use of human beings or animals and all substances intended to be used for in the diagnosis, treatment, mitigation or prevention of disease in human beings or animals other than medicine and substances exclusively used or prepared for use in accordance with the Ayurvedic or Unani systems of medicine’. The Italicized, word “and” in this definition was read disjunctively as the context showed word “or” and “and” reveals the clear intention of the Legislature.

Speedy Justice
In a case where the Government has been given special powers to create special courts, the words should be construed in such a manner, which ensures that effect is given to the reason for which power has been conferred on the Government. Example- Section 3 of the Prevention of Corruption Act, 1988 empowers the Government to appoint as many special judges as many judges as may be necessary for such area or for such case or group of cases, as may be specified in the notification. Construing “or” it was held that it would mean that the Government has the power to do either or both the things, i.e., the Government may, even for an area for which a special judge has been appointed, appoint a special judge for a case or group of cases. The case illustrates that the alternatives joined by “or” need not always be mutually exclusive.

Scheme of the Act
For the provisions that deal with appointment of the Manager under Mines Act, 1952,word “and” in Section 3(1)(b) is to be read disjunctively and not as being conjunctive. Having regard to legislative intent manifested by the scheme of the Act, word “and” to be construed as “or” and read disjunctively and not as being conjunctive.

Factual Background
The world “or” and the word “and” used in rules, laws or bye-laws have specific intention as proposed by its maker and the meaning of “or” and the word “and” shall depend on the factual background under which such conjunction was used.

ut res magis valeat quam pereaf
Maxwell on Interpretation of Statutes under the head ‘ut res magis valeat quam pereaf’ states that-

'If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.' 'Where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system”.

I believe that it is just not important to make the statutory provisions operative and workable, but is equally essential to make them operative in a just and reasonable manner. To give effect to this maxim, a construction of “and” and “or” is to be applied which will be consistent with the smooth working of the provisions.

Conclusion
The conjunction “and” or “or” can never be given a definite and dogmatic interpretation and the entire interpretation would depend on the intention of the maker laws or bye-laws using such conjunction.

In a latest case of 2011, Union of India v. Ind-Swift Laboratories Ltd.the Apex Court has once again laid emphasis on the need to interpret “and” and “or” in a manner that ensures the manifest intent of the Legislature is giving effect to.

It is essential to understand the need for correct interpretation of “and” and “or” as this can at times, change the entire meaning of the relevant statutory provision. The Judicature should expound the law in a manner that suppresses the evil and the wrong and advances the true meaning and scope of the Statute. The Legislature cannot predict the myriad possible future situations that might arise and it is impossible to draft a law perfect to meet all situations in future. This conflict is inevitable and thus it is the duty of the Judges to use the techniques of Interpretation to give most desired and required meaning to ensure justice prevails.
********************************
# SALMMOND: “Jurisprudence” 11th Edition, p. 152
# Institute of Chartered Accountants of India v. Price Waterhouse, AIR 1998 SC 74
# Zander, Michael. The Law-Making Process. Cambridge University Press (United Kingdom), 2004, p. 129
# Zander, Michael. The Law-Making Process. Cambridge University Press (United Kingdom), 2004, p. 129
# Zander, Michael. The Law-Making Process. Cambridge University Press (United Kingdom), 2004, p. 129
# Green v. Premier Glynrhonwy State Co. Ltd. (1928) 1 KB 561 (565)
# Municipal Corporation of Greater Bombay v. Indian Oil Corporation 1990 SCR Supl (3) 396
# State of Karnataka v. Appa Balu Ingale 1995 Supp (4) SCC 469
# AIR 1967 SC 643
# AIR 1974 SC 685
# (2000) 1 SCC 426 : (AIR 2000 SC 314)
# Federal Steam Navigation Co. Ltd v. Department of Trade and Industry, (1974) 2 All ER 97(HL).
# Prof. Yashpal v. State of Chattisgarh AIR 2005 SC 2026
# Star Co Ltd. vs. Commr .of Income Tax, AIR 1970SC 1559: (1970) 3 SCC 864.
# Patel Chunibhai Dajibha v. Narayanrao, AIR 1965 SC 1457
# R v. Oakes, (1959) 2 All ER 92.
# Ishwar Singh Bindra v. State of U.P. AIR 1968 SC 1450
# J.Jayalalitha v. Union of India AIR 1999 SC 1912 : (1999) 5 SCC 138
# Joint Director Of Mines Safety v. Tandur & Nayandgi Stone quarries 1987 AIR 1253, 1987 SCR (2) 801
# Kolkata Municipal Corporation v. Harbans Lal Malhotra And Sons Pvt. 2006 (3) CHN 237
# 12th Edition; 1969 (Reprint 2010)
# Kolkata Municipal Corporation v. Harbans Lal Malhotra And Sons Pvt. 2006 (3) CHN 237
# (2011) 4 SCC 635

The  author can be reached at: ananya123@legalserviceindia.com




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