Legal Notes by Arvind Datar: Adding Words to a Statutory Provision

On occasions, the statutory provisions are incomplete or defective. In such cases, courts have to step in and actually add words, or an expression or even a sentence to a statute to prevent injustice.
Arvind Datar
Arvind Datar

The general, and oft-repeated, rule is that courts have to only interpret the words in a statute. To this end, they can adopt the rule of literal construction or, at the other end, the rule of purposive interpretation. The various rules of interpretation become necessary because words, even in the hands of a skilled draftsman, are not capable of always conveying the exact intention of the legislature. It then becomes the difficult task of judges to interpret a statutory provision in a manner that would best match or align the text with the object of the statute.

On rare occasions, the statutory provisions are incomplete or defective. A literal interpretation would lead to an absurd result that could never have been in the contemplation of the lawmakers. In such cases, courts have to step in and actually add words, or an expression or even a sentence to a statute to prevent injustice and to make the statutory provision work. This article gives three such illustrations.

In Ramaswamy Nadar v. State of Madras, AIR 1958 SC 56, the Supreme Court encountered a difficulty while interpreting section 423(1)(a) of the Code of Criminal Procedure, 1898. The provision read:

“423(1)(a):  in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retired or for trial, as the case may be, or find him guilty and pass sentence on him according to law;” 

A plain reading showed that the High Court could reverse the order of acquittal, retry the accused, find him guilty and sentence him. But guilty of what? Guilty of the offence for which he was charged at the first instance or guilty of any other offence that may be disclosed in the evidence or revealed after further enquiry. After careful consideration, the Supreme Court added the words “of the offence disclosed” after the words “find him guilty”.

The next example is adding an entire sentence to section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Section 10(3) enabled the landlord to seek an order for getting back his possession of either a residential or non-residential building. In sub-clauses (i) and (ii), there was a condition that he could ask the tenant to vacate only if the landlord required it for his own use or for the use of any of the members of his family. This condition was missing in section 10(3)(a)(iii). Thus, in this category of buildings, a tenant of a non-residential building could be vacated even though the landlord did not require it for his own use or for use by any member of his family.

The Supreme Court pointed out that the State Legislature could not have intended that the requirement of the landlord’s own use or use by the members of his family was necessary for sub-clauses (i) and (ii) but not for sub-clause (iii). Thus, under the third category, the landlord could evict the tenant even though he may not require the non-residential building for his own use. Accordingly, the Supreme Court directed that even for the third category, the landlord could evict the tenant only when he requires it for his own use. This expression was thus read into section 10(a)(iii). Hameedia Hardware Stores v. B. Mohan Lal Sowcar, (1988) 2 SCC 513 : AIR 1988 SC 1060.

The third example is an interesting judgment under the Income-tax Act, 1961.

In Indian Oil Corporation Ltd. v. S. Rajagopalan ITS, (1973) 92 ITR 241 Section 80J granted a deduction on the capital employed for starting any new industrial undertaking. The definition of “capital employed” in Rule 19A(3) was flawed and defined capital employed to mean the total investment in the new undertaking as reduced by the liabilities of the assessee.

This led to a paradox whereby the value of the assets was of the new undertaking only whereas the entire liability of the assessee had to be deducted. In the case of Indian Oil, this meant that investment in a new oil refinery would be reduced by the entire liability of the oil company, resulting in no deduction at all.

The original rule 19A(3) read as follows:

from the aggregate of the amounts ascertained under sub-rule 2 shall be deducted with the aggregate of the amounts as on the first day of the computation period, all borrowed monies and debts due by the assessee (including amounts due towards any liability in respect of taxes) not being …………” 

The High Court noting that the deduction would become meaningless and therefore added the word “in respect of the industrial undertaking in which the capital employed is to be computed”.

Thus, by adding this expression, the capital employed would be the asset of that undertaking as reduced by the borrowings and debts of that undertaking alone. By such an interpretation, the deduction under section 80J became meaningful.

The addition of words or expressions is relatively rare.

However, courts should not hesitate to read words into statutes to make them meaningful.

Of course, the limits to doing this are best described by adopting the words of Lord Denning who stated that,

“A judge must not alter the material of which the Act is woven, but he can and should iron out the creases”. Seaford Court Estates Ltd. v. Asher, (1949) 2 All ER 155, 164.

Arvind P Datar is a Senior Advocate of the Madras High Court.

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