INTERPRETATION OF STATUTES

Exclusionary Principle Expressio Unius Est Exclusion Alterius

Submit ted By: Pooj a Aurora Nint h Semester A3 208307032 Amity Law School, Amity University, UP

Acknowledgement
I am very grateful and would like to thank myself for helping myself gather material and accomplish my research on this project. Without my support, it would have not been possible to compile this assignment. I would also like to thank my friends for supporting and extending valuable guidance to me with regard to this assignment.

Dr. Dr Vijendra Singh Lecturer, ALS

Amity University, Uttar Pradesh Date: 20/08/11

Certificate

This is to certify, POOJA AURORA, bonafide student of Bachelor of Law (B.A.L.L.B), ALS, AUUP has satisfactorily prepared this project titled as Expression Unius Est Exclusion Alterius under my supervision and guidance. The present work incorporates the result of his independent study and research. The present work is up to the mark and worthy of consideration for the award of B.A.L.L.B degree. This being submitted to the Amity University for the degree of Bachelor of Laws in the partial fulfilment of requirement for the degree. Dr. Vijendra Singh Lecturer ALS

Table of Contents
1. Title page 2. Certificate 3. Acknowledgement 4. Table of cases 5. Introduction 6. Principle of Statutory Construction and its Usage 7. Maxim must be applied with caution 8. Conclusion 9. Bibliography

Table of Cases

Indian Cases: 1. Asstt. Collector,Central Excise v. National Tobacco Co. of India Ltd, (1972) 2 SCC 560. 2. Harish Chandra v. Triloki Singh, AIR 1957 SC 444. 3. In Re, The Delhi Laws Act,1912. 4. Khemka &Co v. State of Maharashtra, (1975) 2 SCC 22. 5. Parbhani Transport v. R.T.A, AIR 1960 SC 801. 6. R.S.D.V. Finance Co. Pvt. Ltd v. Shree Vallabh Glass Works Ltd, (1993) 2 SCC 130. 7. Shankara Rao Badami v. State of Mysore, (1969) 1 SCC 1. 8. State of Karnataka v. Union of India, (1997) 4 SCC 608. English Cases: 1. Colquohoun v. Brooks, (1887)19 QBD 400 2. Lowe v. Dorling & Son, (1906) 2 KB 772. 3. R v. Caledonian Rly, (1850) 16 QB 19. 4. R v. Secretary of State for the Home Department ex p Crew, [1982] Imm AR 94.

INTRODUCTION
The true way of construing a statute is to take words as the Legislature has given them and to the take the meaning of the words as the generally or naturally imply. This is easy to say when the statute is clear, but what happens in a situation where the legislature has left some areas ambiguous which often happens or because of other surrounding circumstances the provisions are not clear. This mostly happens in a situation where authors and jurists tend to imply things which are not mentioned, this is a common problem of interpretation. Many statutory propositions are implied rather than being expressed. There is therefore need for inference by the statute reader and for this reason certain methods are laid down in law. The maxim expressum facit cessare tacitum embodies the principle that no inference is proper if it goes against the express words Parliament has used. The chief application of this principle lies in another maxim of expressio unius est exclusio alterius. Law divides aids of construction into internal and external. This maxim falls under the internal aids of construction, meaning therefore that incase a doubt or an ambiguity arises as to various provisions or sections within the statute, such an aid to construction may be applied. This rule enunciates one of the first principles applicable to the construction of written instruments. This is based on the principal of interpretation that what is left unexpressed was in all probability not expected at all. However it must be noted that this principle is one of common sense and has no legal backing, thus this must be used with great caution. Thus where on one side it is a great help to the courts, on the other hand it has a number of limitations which must be adhered to in order to maintain justice and equity.

PRINCIPLE OF STATUTORY CONSTRUCTION AND ITS USAGE Application of the maxim: This maxim is based on the probable intention of the legislature. While the maxim has received mention in legalistic thinking, it is not of a legal origin, but a product of logic and common sense. In Shankara Rao Badami v. State of Mysore [ (1969) 1 SCC 1], the appellants challenged the

validity of the Mysore (Personal and Miscellaneous Inams) Abolition Act, 1954, on the ground that it did not provide compensation as a just equivalent. The contention was that the States power to make a law under Entry 36 of List II of the Constitution as regards acquisition of property, read with Entry 42, List III (as it stood then) could be exercised subject to the condition that it should be for public purpose and should provide for compensation. The Court held such an argument to be untenable in the light of the fact that both these conditions had been expressly provided for in Article 31(2) of the Constitution and it is further enacted that no law shall be made which takes away or abridges these safeguards, and any such law, if made, shall be void. Hence the question of these conditions being read implicitly into Entry 36 of List II or Entry 43 of List III did not arise at all. The maxim expressio unius is a principal of logic and common sense and not merely a technical rule of construction. Therefore, where a certain stipulation is expressly laid down in a particular provision it is not correct to treat the obligation as arising implicitly from another provision. Historically, it was first applied to legislation where the statute designated a particular remedy for enforcing a right or power which did not previously exist. Its use was gradually extended to fit into all kinds of statutes, including those on taxation, administrative bodies, corporations contracts, marriage, liens, crimes, exemptions and others. However this maxim is not one of easy application. The rule that the expression of one thing is the exclusion of another, is in direct contradiction to the habits of speech of most persons. For this reason, the rule must be applied with extreme caution. Therefore the maxim properly applies only when in the natural association of ideas in the mind of the reader which is expressed is so set over by way of strong contrast to that which is omitted that the contrast enforces the affirmative inference that that which is omitted must be intended to have opposite and contrary treatment. A statute is to be construed, as far as possible, as to give sense and meaning to every part. Words of designation: The principle of expressio unius applies where some only of a possible series of substantives or other items are expressly designated. An illustration to this affect will make the issue clearer. An Act authorized a company to build bridges of the heights and spans shown on the deposited plan. The plan also showed inclinations. While conforming to the specified heights and spans, the company departed from the inclination. The Company was

however not held to be infringing the Act. This is because there was no obligation beyond the heights and spans of the bridges as portrayed in the plan. These heights however, were mentioned in the enactment and nothing was said as to the rates of the inclination of the road and thus the application of the maxim expressio unius est exclusio alteriu [ R v. Caledonian Rly, (1850) 16 QB 19]. Words providing remedies: Where an Act sets out specific remedies, penalties or procedures it is presumed that other remedies, penalties or procedures that might have been applicable are by implication excluded. With regard to a statute purporting to impose a charge, the rule to be applied is that the intention to impose a charge on the subject must be shown by clear and unambiguous language. If the language leaves place for coming to the conclusion that only penalties specified in the Central Act are enforceable by the machinery for enforcement of liability under the general sales tax law of the State, then the legislative intent can safely be presumed to confine penalties mentioned in the Central Act to only those as are mentioned specifically in the Central Act, thus once again bringing in the application of the principle that mention of one or more things of a particular class may be regarded as silently excluding all other members of the class. Words of extension: The most common way of extending the indisputable meaning of a term is by the use of an enlarging definition. Where it is doubtful as to whether a term includes a certain class and words of extension are added thereto which covers only some of the members of the class, it is then implied that the remaining members of the class are excluded. For example under one particular Act it stated that the word parent includes the mother of an illegitimate child. The class to which this extension relates therefore is the parents of an illegitimate child. Therefore, using the rule of expressio unius in this case, the express mention of the mother implies that the father is excluded. Qualifying Substantives: The use of qualifying substantive at one place and not in another might show that the legislature does not intend to use the phrase or word and is thereby assumed to be excluded.

MAXIM MUST BE APPLIED WITH CAUTION Where maxim does not apply: There are certain limitations as to the application of the expressio unius maxim. Where the intention clearly reveals that the legislature did not mean that express mention of one thing should operate to exclude all others, the maxim cannot apply. Further, where the statutory language is plain and the meaning is clear there can be no implied exclusion. This was reiterated in Parbhani Transport v. R.T.A.[AIR 1960 SC 801] in this case permits to ply buses were granted to the State of Bombay under Ch IV of the Motor Vehicles Act, 1939. it was contended by the petitioner that since the Act by Ch IV-A provided that the Government would be entitled to run buses under a particular scheme, it impliedly prohibited the running of buses by the Government otherwise and to support this argument the expressio unius principle was relied upon. The Court here held that the maxim was meant for ascertaining the intent of the legislature. Where the statute is clear there is no scope for applying this maxim. S.43(3)(a) of the Motor Vehicles Act was seen to be plain in its term. It contemplates that the Government has to apply for permits under S.42(1) to run buses as a commercial enterprise. For this reason there maxim could not be used for ascertaining the intention of the legislature and implying a prohibition where none exists. The maxim therefore, only applies where there is a doubt in the language of the statute or provision and should not be used with intent to defeat the legislative purpose. As seen above, when applying a principle of construction, it must be noted that such application is subservient to the fact that the court must endeavour to establish the legislative intent and purpose, and only then adopt a rule of construction which effectuates this intent. Therefore the idea that where a mode of performing a duty is laid down by the law it must be performed in that mode or none at all, should not be adopted blindly under the maxim of expressio unius est exclusio alterius, without reading it in light of the purpose of the provision. What is the reason for such limitation? It is often argued that a failure to make an expression complete may arise from the accidents of legislative procedure and it is common to find provisions put into statutes ex abundanti cautela and at the instance of parties interested.

In the case of State of Karnataka v. Union of India,[ (1997) 4 SCC 608] an argument was put forward for the appellants wherein they contended that the Commission of Enquiry set up by the Central Government against the Chief Minister and other Ministers of the State was unconstitutional in so far as Section 3 of the Commission of Inquiry Act, 1952 was in derogation of the federal structure of the Constitution. In essence the argument put forward was that since List I of Schedule VII did not expressly provide for such a legislative enactment it was necessary to deem the same as beyond the scope of the legislative power of Parliament through the application of the expressio unius est exclusio alterius rule. The Supreme Court was emphatic in its dismissal of this novel argument. It held that the residual powers vested in Parliament through Article 248 and Entry 97 of List I of Schedule VII was designed to cover such exigencies of public importance all of which could not be envisaged at the time of drafting of the Constitution. Hence an enactment such as Section 3 of the impugned legislation fell squarely within such residual power of Parliament since the same was not present, either in List II or List III. In such a scenario, the Court held, that it would constitute gross injustice to construe limitations on the legislative power of Parliament on a mere theory of restriction of the same when the Constitutional scheme expressly provided a methodology to fill the lacuna caused by an unforeseen situation. Not of universal application: The maxim expressio unius est exclusio alterius is not one of universal application, and it is inconceivable that the framers of the Constitution could have intended to deny to the Indian Legislatures, a power which, as we have seen, has been recognized on all hands as a desirable, if not, as a necessary concomitant of legislative activity in Modern States. This was observed by Patanjali Sastri.J, in In Re, The Delhi Laws Act,1912. In this case the question that arose was whether the delegation of a discretionary power to pick and choose laws made by other legislatures to operate elsewhere and to apply to certain territories was within the competence of the Central Legislature. In this case the argument put forth was that there existed an implied prohibition against delegation on the strength of Art. 357(1)(a) which provides specifically for delegation by the President of the law-making powers conferred on him by Parliament in case of failure of the constitutional machinery in States. It was contended, that the express provision mentioned above shows that whenever the makers of the constitution wanted to authorize delegation of legislative powers they have

made specific provision in that regard and, in the absence of any such provision in other cases, no delegation of such power is permissible. From the study of the exclusionary principle we see is that such an argument will not hold good. Just because in one rare instance an express provision authorizing the President to delegate to another the law-making powers conferred on him by Parliament in the Constitution, it is not reasonable to infer that it was intended to prohibit the delegation of powers in all other cases. The aid to construction is not one of general application but works from a case to case basis, keeping in mind the purpose of the legislature and intent of the provision or the statute. Superfluous provisions: The Legislature sometimes uses superfluous words or provision mainly as a matter of abundant caution. It is common to find special exemptions covered by general exemptions. These exemptions are often introduced ex majori cautela to pacify persons whose interests are engaged or sympathies aroused in favour of some particular institution, and who are apprehensive that it may not be interpreted so as to fall within the general exemption. Such provisions do not attract theexpressio unius principle and the only inference that can be drawn from such superfluous provisions is that the legislature was either ignorant or unmindful of the real state of the law or that it acted under the influence of excessive caution. This was reiterated in the case of Harish Chandra v. Triloki singh,[ AIR 1957 SC 444] in this case the appellant was charged for certain corrupt practices in furtherance of his election prospects. It was claimed that in the election petition the appellant had not furnished certain particulars. Also it must be noted that when additional powers or responsibilities are conferred or when a new option is given in the statute, this does not close out previous powers and options. Principle of caution: The principle of interpretation and that of expressio unius est exclusio alterius is not a rule of law but one of construction. It is a product of common sense and must be therefore applied with caution so that a rational interpretation is produced. Therefore, if the rejection of the maxim will serve the purpose for which the statute was enacted or will accomplish beneficial results, the maxim must be refuted [Lowe v. Dorling & Son, (1906) 2 KB 772, 784]. The maxim therefore does not apply where one can conclude that the provision has been added with abundant caution. Sometimes the person concerned is uncertain as to whether something comes within the ambit of the provision, to convince and reassure such persons the legislator may add

an exception. Thus there is already a built in caution and thus the maxim will not apply as the intent is clear and plain. Further Lopez L.J. observed in the case of Colquohoun v. Brooks,[ (1887)19 QBD 400] This maxim is a valuable servant but a dangerous master to follow in the construction of statutes or documents. The exclusio is often the result of inadvertence or accident, and the maxim ought not to be applied, when its application, having regard to subject- matter to which it is to be applied, leads to inconsistency or injustice Thus as we have observed from the above judgment, it is not enough that the express and the implied are merely incongruous but it must be clear that they cannot reasonably be intended to coexist. Other situations: Apart from the instances mentioned above, this principle of construction has no application where the statute merely affirms the existing law. Nor does it apply to matters omitted by oversight, or where it clearly appears that something was expressly mentioned for another reason or merely because of caution. Further, this maxim has no application to the title of an Act.

CONCLUSION
Statutes makers are human like everyone else and therefore there is every chance of mistake or lack of clarity. In fact sometimes the Legislature deliberately expresses certain things and excludes certain things with a particular intention and it is for the statute reader to understand this intention. It is for this purpose that maxims such as expressio unius est exclusio alterius were formed, to help the statute reader to come to a consensus where certain things were expressly implied to exclude other things. And thus we see through various case laws that the this principle helps avoid the mischief of some contenders who try to twist the statute to their advantage. However these principles of statutory interpretation are not as cut and dry as it seems and in applying them one must be extremely cautious. The point is that sometimes the exclusion by the legislature maybe an accident and therefore it is not right to apply the principle at will without weighing out the pros and cons, the idea of these principles is to help interpret a statute and not to cause injustice and defeat the law. Thus it must be kept in mind that aids of construction though are to help interpretation of statutes, yet Courts in applying these aids must be cautious and must not make it a blanket application as this may lead to injustice and the duty of Courts is to give justice and not to create further confusion in ambiguous statutes. Thus reiterating once again that the expressio unius principle is a helpful master but a dangerous servant, and therefore in using this principle one must exercise abundant caution.

BIBLIOGRAPHY
The information and necessary data for the compilation of the project has been referred to from the following sources: 1) 2) 3) 4) 5) www.barcouncilofindia.org www.legalserviceindia.com www.legalsutra.org www.vakilno1.com www.indiankanoon.org