External Aids Flashcards
Historical Facts and Circumstances
- The court may take into account such external or historical facts as may be necessary to understand the subject matter of the statute or the surrounding circumstances in which the statute was enacted.
- Lord Halsbury: Facts existing at the time
- Lord Atkinson: The evils which, as appears from the provision, it was designed to remedy.
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What provisions come under Parliamentary History
- Bills in their original form and the amendments that were considered
- The language of the ministor proposing the bill
- Reports of the committee (standing or select)
- White paper issued by the Government
- Law Commission reports
- Parliamentary debates on the bill
Azeez Basha Case
Forms of references to other statutes
- Pari Materia
- Assistance of an earlier statute
- Assistance of a later statute
- Incorporation of an earlier act into a later one
- Codifying and consolidating statutes
How to deal with statutes in para materia
Where different statutes deal with identical subjects at different times, or when they deal with the same subject, they are in pari materia and should be considered together as one system
When acts are so related they form a system or a code of legislation.
Professor Blackstone recommended that they be grouped together and compared, as an aid to construction.
Assistance of earlier statute
When a provosion in an earlier statute is well settled and well recognized, and a word that appears in that provision is used in a later act,
Parliament intends that the same judicial interpretation should be followed for construction of the word in the later act. This is because it is presumed that the legislature is aware of the meaning courts have ascribed to words
When will presumption of same construction NOT apply when referring to an earlier statute
- When different language is used in the later statute. It is presumed that the alteration is deliberate
- When earlier decisions of the court are shown to have been erroneous.
- When the act is purely consolidatory and the parliament has not gotten an opportunity to reconsider the earlier acts.
- Does not apply to ordinary words used in English Language
- Where two or more high courts have contradictory views and the SC has not settled on it.
When will changing language not indicate a change in legislative intent?
- When the natural and ordinary meaning of the existing words do not indicate the intention of the legislature to change.
- When the addition of the word only makes clear a meaning which was already implied
- When the change in language is to improve the style.
How to deal with assistance of a later statute
The legislature can amend an earlier act to declare its meaning. A later statute can be used to expose the meaning the parliament meant (explanatory and declaratory acts)
Incorporation by reference of earlier act into later
- This is a mere device of legislative convenience to avoid verbatim reproductions of the earlier act into the later one.
- It transposes by reference the provisions of the earlier act into the new one.
- All the amendments made in the previous act will also be applicable.
- If a previous act is repealed, such an effect will be there on the new one also.
What is the distinction between incorporation by reference and mere citation or reference
Mere reference or citation
Modification, repeal or re-enactment will have the same effect for the statute which refers it
Incorporation by reference
Any change in the incorporated statute by way of amendment has no repurcussions.
Effect of usage and practice
- The usage or practice developed under a statute is indicative of the meaning ascribed to the words. Such references are admissible.
- The opinion of a person who lived at or soon after the time when they were made is relevant.
- It can be assumed that when legislature re-enacted a statute and where we find that the prior statute had a continuous practice and the legislation has repeated the words from which the continuous practice arose, the legislature meant for those words to be understood in their recieved meaning.
- When the practice recieves judicial or legislative approval it gains additional weight.
Example: Process to appoint judges of SC and HC
Contemporanea exposition est optima et fortissinia in lege
This is a maxim laid down by Lord coke which means that the best exposition of a statute is that which it has recieved from its contemporary authority.
The judicial appointments saga (usage and practices)
Article 124 gives the power of appointment to the Union through the president after consultation with the CJI.
1. 1st Judges case 1981: Ultimate power of appointment lays with president, CJI must be properly consulted
2. 2nd Judges Case 1993: President’s ultimate power is diluted, CJI must be given the primary role for the independence of the judiciary (idea of collusion is born)
3. 3rd Judges Case 1998: Guidelines for the collegium
NJAC act was passed in 2014 to establish a commission with non-judicial members. This was struct down by the court.
It was deemed to limit the authority of the judiciary and threaten its independence.
