COMMENTARY
Illustrations in Statutes
A Forgotten Statutory Practice
Apoorva Sharma, Purushottam Anand
Illustrations in statutes offer numerous benefits by way of enhancing clarity, clarifying legislative intent, and providing the context for the application of the provision. Their legal standing in colonial era statutes is already established. Given the widespread lack of understanding of the law among those to whom it applies as well as inadequacies and ambiguities in legislation, the only question remaining is why illustrations have been discontinued after Independence.
Apoorva Sharma (apoorva133@gmail. com) and Purushottam Anand (k.anand3@ gmail.com) are students at the National Law University, Delhi.
[W]here the administration of the law is for the most part conducted by persons who are not only not professional lawyers, but who have had no legal education or training in any proper or rational sense of the term, the Legislature acts with wisdom and salutary consideration for the interests of justice by putting into the hands of judicial offi cers appliances such as the illustrations in question for their guidance and direction in the performance of their duties.
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This set of factors has essentially reduced law to being an imposition from above, rather than what it was meant to be in a democracy – established by the people, for the people and of the people. This ignorance further contributes to a very large amount of fear of the law for the ordinary layperson.
Another direct consequence of the general impenetrability of the law is the shocking ignorance of the people of their own rights and obligations under the law. It renders the law, ostensibly a tool for the governance of all, a potent weapon in the hands of the few elite people who have either the knowledge or the resources to sheath themselves in a protective cocoon of the law, often at the expense of the objective for which the law was framed in the fi rst place.
It is imperative, therefore, that the law be made as accessible and easy to understand as possible. One such way of simplifying the law is already used in a few statutes, i e, illustrations. However, this practice of including illustrations has been discontinued since Independence.3 This article argues that illustrations should be reintroduced into Indian law to improve the coherence and legibility of the laws of India.
One of the most fundamental principles of law is the presumption of ignorantia juris non-excusat (the ignorance of law is no excuse). In effect, this principle means the law can be enforced upon anyone, despite the fact that they may not be aware of the meaning or even the existence of the law in question. This very significant principle creates a reciprocal duty on the part of the State to make the people aware of laws enacted by it, and to make such laws as
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COMMENTARY
comprehensible as possible. Not doing so would be a form of injustice at the most fundamental level.
“[I]nadequacies in legislation” and rampant ambiguities were recently highlighted by legal luminary N R Madhava Menon, who stated:4
One of the reasons for popular dissatisfaction with the administration of justice is the uncertainty of law which sometimes results in miscarriage of justice. The multiplicity of interpretations, the inadequacies of legislative drafting, ambiguities in policies and the variety of languages in which transactions are made add to the confusion and make repeated litigation inevitable.
Illustrations in statutes are one method by which to remedy this. Aside from the obvious reduction in levels of ambiguity, illustrations provide two levels of improvement on the status quo. First, they provide for a situation of perfect obligation. Simply put, if a situation arises which directly conforms to an illustration, it can be immediately dealt with on the basis of the illustration. This leaves little scope for interpretation or debate and more importantly, little scope for appeal. All such matters may be dealt with summarily.
This leads to the second level of improvement. Many people have been excluded from the justice system simply because they cannot afford to pay the costs of a protracted case. If a signifi cant number of situations can be covered by illustrations, it correspondingly increases access to justice.
Another major advantage of illustrations is the relative ease of statutory interpretation. Taken from the perspective of those attempting to understand the law, the very basis of legal education rests upon examples, whether they be in the form of precedents or through hypothetical situations. This is because the subject matter of law can most easily be internalised through real world examples of the law in context. Illustrations are therefore uniquely placed in aiding in the comprehension of the law. Students of the law are encouraged to apply the law in real world situations in order to fully grasp the inherent signifi cance of a statute and its ramifi cations, usually by looking at case law or examining hypothetical situations. It is therefore natural that these illustrations be directly made a part of the statute.
Illustrations in Law
Since illustrations exist in certain statutes, their legal standing has already been established. Illustrations are part of the statute and help to elucidate the principle of the section.5 They are of vital importance when it comes to interpreting the intention of the legislature and cannot be ignored without justifi ed reasons.6 Another important point is that illustrations cannot modify the language of the section and they cannot either curtail or expand the ambit of the section, which alone forms the enactment.7 Therefore, there is no scope for illustrations to change the substantive meaning of the section.
The value of illustrations is best shown by the judgment in Mahomed Syedol Ariffin vs Yeoh Ooi Gark:8
The illustrations should in no case be rejected because they do not square with ideas possibly derived from another system of jurisprudence as to the law with which they or sections deal. And it would require a very special case to warrant their rejection on the ground of this assumed repugnancy to the sections themselves. It would be [the] very last resort of construction to make this assumption.
However, the utility of illustrations in interpreting the section cannot detract from the prime importance of the language of the section, which is the enacting provision. The drafter must be conscious that the illustrations are normally given effect to by the courts and the latter will not readily assume that the illustrations are repugnant to the section and therefore reject them.9
An exception to the rule of illustration not being used to modify or amend the meaning of the section can be seen in the Indian Evidence Act, 1972. Illustration (b) of Section 114 of the Act, reads “The court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars”. This seems in direct conflict with Section 133 of the Act, which reads “An accomplice shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice”. The combined reading of both these provisions would mean that a conviction based on uncorroborated testimony of a co-accused is illegal, but as a rule of practice now, it is established that corroboration is required in all such cases.
Thus, the substantive provision of the section has been brought to nullity due to wordings of an illustration under the Act. Although we understand that this does not constitute a precedent for other
CALL FOR PAPERS
INDIAN HEALTH ECONOMICS AND POLICY ASSOCIATION (IHEPA)
IHEPA’s Second Conference on 20th & 21st December 2012
IHEPA is organising its Second Conference under the aegis of the Institute for Social and Economic Change (ISEC), Bangalore, on
“Better Health Access – The Rough Road Ahead”
Research papers are invited on the following sub-themes of the Conference:
The papers submitted to the Conference will be screened by the Review Committee of IHEPA for acceptance and presentation. IHEPA encourages young research students to contribute and participate in the Conference. Papers along with abstracts may be submitted electronically to secretary.ihepa@gmail.com with Cc to office.ihepa@gmail.com.
Important dates Last day for submission of paper : September 10, 2012 Communication from IHEPA regarding acceptance : October 15, 2012 Last day of submission of revised paper, if required : November 19, 2012
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COMMENTARY
cases, but it does exhibit how important and helpful an illustration can be for the interpretation of the statutes.
It is not the general practice to append illustrations to sections of British Acts of Parliament.10 Indian and colonial Acts are, however, full of them.
History and Practical Examples
The origins of illustrations in Indian law may be traced back to Macaulay’s Indian Penal Code of 1860. In a letter written by him to the Crown Auckland, he stated:11
Illustrations facilitate the understandings of law and, often, serve as a defence of law. They lead the mind of the reader through the same steps by which the minds of those who framed the law proceeded. Illustrations exhibit the law in full action and show what its effect will be on the events of the common life.
This reasoning (both succinct and apt) was carried forward into subsequent legislation that to this day forms the backbone of laws in India, including (but not limited to) the Evidence Act 1872, the Contract Act 1872 and the Transfer of Property Act 1882. In fact illustrations play an incredibly vital role in the Evidence Act. The Act would be completely incomprehensible without illustrations.
It is interesting to note that subsequent to the adoption of the Constitution, the legislature has in its wisdom discontinued the practice of inserting illustrations into acts. A sharp contrast can also be noticed between similar provisions of Indian Succession Act 1925 (ISA) and the Hindu Succession Act 1955 (HSA). Section 20 of the ISA provides for “computation of degrees” for deciding the order of succession; a corresponding provision is also given under Section 13 of the HSA. Interestingly, while the ISA uses illustrations (with tables) to exhibit examples of computation, the HSA has no such illustrations.
The value of illustrations has not waned over time. Every court in India has recognised the value of illustrations and has used them in one form or another. Most recently, the Supreme Court in the case of Lalit Mohan Pandey vs Pooran Singh and Others12 has reiterated the contribution of illustrations in dealing with disputes related to the interpretation of a statute.
A repercussion of the absence of illustrations is that the quantity of litigation pertaining to the interpretation of statutes with respect to legislative intent has vastly increased. Simultaneously, verdicts have become murkier with multiple interpretations being taken by various courts on the same matter. It is also not uncommon for a court to disagree with its own previous interpretation, leading to greater confusion and lack of certai nty regarding what the law actually is.
The real benefit of illustrations is the ease through which they can be introduced into a statute. For instance, the definition of “assessment year” in Section 2(9) of the Income Tax Act, 1961 is often confusing. Assessees fi nd it difficult to comprehend which period they are being taxed for.
Section 2(9) reads: “‘Assessment year’ means the period of 12 months commencing on the 1st day of April every year”. Section 3 further complicates the problem: “For the purposes of this act, ‘previous year’ means the financial year immediately preceding the assessment year”.
Even the combined reading of both these sections does not make it comprehensive enough for a “common man”. An illustration seems imperative here and would have helped tremendously. A possible illustration could be:
Other illustrations flow directly from the statute itself. When the HSA grants coparcenary rights to people, an illustration can easily be appended listing precisely who this provision covers through examples. Similarly, when the Trade Marks Act, 1999, specifies that a certain type of mark cannot be trademarked, the section could include an illustration specifying both the types of trademark which can and cannot be trademarked under the section. The possi bilities are limitless.
Concluding Remarks
Illustrations offer numerous benefi ts, including enhancing clarity, clarifying legis lative intent, and providing context for the application of the provision. More importantly, there is no downside to the introduction of illustrations. There is little incremental cost involved. Illustrations can be embedded in new legislation, and also introduced into older pie ces of legislation, through amendment.
The legislative laziness of not adding illustrations in the legislation has impai red the understanding of law among the people. Thus it escapes understanding why the practice of adding illustrations to the provisions of law should not be restarted. The only question remaining is whether the discontinuation of illustrations is a matter of incompetence or mere laziness.
Notes
1 Nanak Ram vs Mehin Lal (1877), ILR 1, All 487.
2 An eye-opening illustration of the absence of “proper” legal training lies in the fact that 517 of 518 of the candidates in an examination con
ducted by the High Court of Karnataka for the recruitment of district court judges did not get the minimum marks required to qualify for the interview stage. Seven years of experience as a practising advocate was a prerequisite for taking the exam. See Krishna Prasad (2011), “517 Out of 518 Would-be Judges Flunk Law Test”, The Hindu (Delhi Edition), 23 August.
3 The Code of Criminal Procedure 1973 is an exception to this general rule. However, this is only because the Code, which was enacted in 1973, was largely a rewrite of the previous Code of Criminal Procedure, 1908. The illustrations in the new law are taken directly from the old code.
4 N R Madhava Menon (2011), “Making the Law Easier for the Common Man”, The Hindu (Delhi Edition), 18 October.
5 Balla Mal vs Ahad Shah, AIR 1918, PC 249-50, judgment delivered by Lord Atkinson. 6 Murlidhar Chatterji vs International Film Company, AIR 1943, PC 34.
7 Lalit Mohan Pandey vs Pooran Singh and Others (2004), 6 SCC 626. Judgment delivered by Justice S B Sinha.
8 (1917) 19 BOMLR 157. Also see, Durga Priya Chowdhury vs Durga Pada Ray, AIR 1926, PC 242; Bengal Nagpur Rly. Co vs Rattanji Ramji, AIR 1938, PC 67 (70), Hemchandra Naskar vs Narendra Nat Bose, AIR 1934 Cal 402 and Hallappa vs Irappa, AIR Bom, 415.
9 Jumma Masjid, Macara vs Kodimaniandra Devialu, AIR 1962, SC 847.
10 An exception to this practice are the illustrations contained in the University Elections (by single transferable vote) Regulations 1918 (S R & O 1918, No 1348), Schedule I.
11 K Ramamoorthy (2007), “Statutes” in Sunanda Bharti, Supriti S Narayanan and Hiranmai Rallabandi (ed.), Halsbury Laws of India, Vol 21 (New Delhi: LexisNexis Butterworths), p 339.
12 In this case, the Supreme Court cited with approval the illustration contained in Schedule II of the Uttar Pradesh Zila Panchayats (Election of Adhayksha and Up-Adhyaksha and Settlements of Election Disputes) rules, 1994. See Lalit Mohan Pandey vs Pooran Singh and Others, Note 7 above.
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