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Statute and its Classification

Q.1 Define statute and discuss the classification of statutes.

Q.2. What is welfare legislation? What are the basic considerations in the interpretation of

welfare Statutes? State the difference in interpretation of welfare legislation and penal

legislation.

I. What is Statute?

A statute means the law, an act generally enacted by the legislative authorities. It is

a rule or law made by the legislature or other organizations and formally written down. In

Other words, a law enacted by the legislative branch of a government is called a statute’.

The Constitution of India does not use or define the term ‘Statute’, but it uses the

term ‘law’. ‘Law’ includes any ordinance, order, by-law, rule, regulation, notification,

custom, or usage having the force of law. [Art. 13 (3) (a) of the Constitution]. In the Indian

context, a statute is an Act of the Central, State, Local, or “any other” body. A Statute is a

formal written enactment of a legislative authority that governs a country, state, city, or

any other legal or local authority.

Statutes are rules made by legislative bodies, which are different from case law or the

president, which is a decision by courts and regulations issued by government agencies.

II. Classification of statutes: -

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A Statute may be classified regarding its duration, nature of operations, object, and

extent of application.

A. Classification with reference to duration-

(i) Temporary statute: -

A temporary statute is one in which the statute itself fixes the period of operation

and validity. Such an Act continues in force unless repealed earlier or until the time so

fixed expires. The enactment lapses after the expiry of the specified period; for example,

the MRTP Act of 1969 was in existence of Companies Act of 2002 came into force. The

Act ceased after that. It may be reapplied, bypassing a new statute. The ordinance passed

by the President remains in operation till the session of the House commences.

(ii) Permanent statute: -

A permanent statute is one where no period of its existence is fixed (like a temporary

statute). It continues unless repealed.

B. Classification with reference to a method-

(i) Mandatory, imperative, or obligatory statute-

A mandatory statute compels the performance of certain things or compels that

certain things must be done in a certain manner or form. Such statutes are imperative in

nature, which are often negative or prohibitory in their terms and make certain acts or

omissions necessary. Its contravention is subject to a penalty. These are imperative in the

sense that they need to be strictly observed.

(ii) Directory or permissive statute: -

A directory statute merely directs or permits to do the thing without compelling its

manner or performance. A directory statute is generally affirmative in its terms; it

recommends certain acts or omissions but imposes no penalty for its non-observance.

In Hari Vishnu Kamath vs. Ahmad Ishaque¹:

The Supreme Court observed that “mandatory provision is to be strictly observed whereas

substantial obedience of a directory provision is enough”.

In Chandrika Prasad Yadav v. State of Bihar²,

The Supreme Court held that “the question as to whether a statute is mandatory or directory

wouldn’t depend upon the phraseology used therein. The principles regarding the nature of

statute must be determined regarding the purpose and object the statute seeks to achieve”.

C. Classification with reference to the object-

With reference to object statutes may be classified as follows-

¹Laws (SC) 1954-12-11

²AIR 2004 SC 2037

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1. Codifying statute: -

A Codifying Statute is one which Codifies the existing law. The code contains the

pre-existing provision in different statutes on the subject as well as the common law. The

purpose of a Codifying Statute presents an orderly and authoritative Statement of the

leading rule of law on a given subject, whether those rules are to be found in statute or

common law.

In other words, Codifying statute states exhaustively the whole of the law upon a

specific subject. The object is not merely to declare the law upon some particular subject

but also to declare it in the form of code. The Hindu Marriage Act of 1955 and the Hindu

Succession Act of 1956 are examples of codifying statutes.

In Joseph Peter V., State of Goa, Daman, and Diu³,

The Supreme Court held that a code is self-contained and complete on a particular subject,

marking the distinction between a code and an ordinary law.

2. Consolidating statute: -

A consolidating statute consolidates the law on a particular subject in one place. it

collects all statutory enactments on specific subjects and gives them the shape of one

statute.

In other words, consolidation is the reduction into a systematic form of the

whole of the statutory law relating to the given subject. The purpose of the consolidating

statute is to present the whole body of statutory law on a subject in complete form,

repealing former statutes. For example, (1) the Arbitration and Conciliation Act of 1996 is

consolidated from the Arbitration Act of 1940, the Arbitration (Protocol and Convention)

Act of 1937, Foreign Awards (Recognition and Enforcement) Act1961. (2) The Code of

Criminal Procedure, 1973, has consolidated the law relating to criminal procedure as found

in different statutes.

3. Declaratory Statute: -

A declaratory statute is a statute to remove doubts either in the common law or in the

statutory law arising due to its misunderstanding or misinterpretation by the court. The

passing of a declaratory statute becomes desirable in such circumstances. An example of

such statute in India is the Income Tax (Amendment) Act, 1985 (added explanation 2 to S.

40 of the Income Tax Act, 1961, and the Finance Act, 1987), by amending the definition

of ‘Owner of house property’.

In other words, where the courts have been interpreting a particular expression to

connote a specific meaning that the legislature feels is wrong, the legislature may pass any

declaratory statute declaring the correct meaning of the expression.

³AIR 1977 SC 1812

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In Central Bank of India Vs. Their Workmen⁴.

The Supreme Court said that the usual reason for passing any declaratory Act is to set

aside what Parliament deems to be a judicial error.

4. Remedial statute/Welfare Statute: - [Discussed in detail in topic 8.]

A remedial statute is one whereby any new favour or a new remedy is conferred.

The main object of passing such a statute is to make improvements in the enforcement of

one's rights, redress of wrongs, and removal of defects or mistakes in the former law. The

statute is, therefore, also called ‘Socio-Economics Legislation.’ A remedial Statute

receives liberal interpretation, and in case of any doubt, it is resolved in favour of the person

for whose favour the statute is enacted. Examples of remedial statutes include the Maternity

Benefits Act of 1961 and the Workmen's Compensation Act of 1923.

In Central Railway Workshop, Jhansi v. Vishwanath⁵,

The Supreme Court held that all the legislation in a welfare state is enacted to promote the

general welfare. Still, certain types of enactments are more responsive to urgent social

demands and have a more immediate and visible impact on social evils by operating

directly to achieve social reforms.

5. Enabling statute: - [Discussed in detail in topic 8.]

An enabling statute enhances the common law where it is narrow. It makes doing

something lawful which would not be otherwise lawful. By an enabling Act, the legislature

enables something to be done. At the same time, by necessary implication, it empowers to

do the indispensable things for carrying out the object of the legislation. The conditions

which an enabling Act has put in place for the public good must be complied with as they

are indispensable⁶. S. 49-A (1) and 49-A (2) of the Advocates Act of 1961, as amended by

the Act in 1964, is an example of an enabling Act.

6. Disabling statute: -

A disabling statute restricts or cuts down a right conferred by the common law. In

other words, an act restraining a common law right is a disabling Act. The statute is

opposite to an enabling statute.

7. Penal Statute: - [Discussed in detail in topic 8.]

A penal statute is one which provides punishment for certain acts or wrongs. Such

statutes may be in the form of a comprehensive criminal code or a large number of sections

⁴AIR 1960 SC 12

⁵1970 SCR (2) 726

⁶Bidi Leaves and Tobacco Merchants Association v. State of Bombay AIR 1964 Bom 51

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providing punishment for different wrongs. Indian Penal Code, Prevention of Food

Adulteration Act, 1954, and Arms Act 1959 are some examples of Penal Statutes.

8. Taxing Statute: - [Discussed in detail in topic 8.]

A taxing statute imposes taxes on income or some other kinds of transactions.

Taxing statutes may be in any form of income tax, wealth tax, sales tax, gifts tax, etc. Tax

is a source of revenue generation for the state. The collected money is utilized for the

welfare of the people. Tax can be levied only after a statute unequivocally so provides.

9. Explanatory Statute: -

An explanatory statute explains a law. The term explanatory itself specifies that this

type of statute explains the law and rectifies any omission that was left earlier in the

enactment of the statutes. Further, ambiguities in the text are also clarified and checked

against the previous statutes. Such a law is often enacted to satisfy people or to remove

doubt about an expression used in a previous law.

In England, the Royal Mines Act 1686 was passed to encourage the mining of

certain baser metals, while the Royal Mines Act 1693 was passed to better interpret the

above former Act.

In Keshavlal v. Mohanlal⁷,

The Supreme Court observed that an explanatory statute is generally passed to supply

meaning to obvious omissions or clear up doubts about the meaning of the provisions of

the Act. An act enacted for the specific purpose of explaining or clearing the doubts about

the meaning of an existing Act is an act of explanation or an explanatory statute.

10. Amending Statute: -

As the name suggests, an amending statute makes an addition to or operates to

change the existing law, to effect development therein, or to carry out more effectively the

purpose for which the existing law was passed. Amending statutes is a part of the law it

amends. In other words, the statute makes some alteration in the originally passed statute

to rectify it or to fulfil its purpose more effectively, e.g. the Code of Criminal Procedure,

1973, amended the Code of 1898.

11. Repealing statute: -

As the name itself suggests, a repealing statute is one which either expressly or by

necessary implication repeals an earlier existing statute, e.g., the Code of Criminal

Procedure,1973, which repealed and reenacted the Criminal Procedure Code of 1898.

12. Curative or validating Statute: -

⁷1968 AIR 1336

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A curative or validating statute is that which is passed to cure any defect in the

previous law to validate a legal process or to give legal recognition to the actions taken by

public or private administrative authorities, and if it had not been done, then such action

would be void.

The purpose of a Curative or validating Statute is just to validate some actions that

would otherwise be unlawful or may be declared invalid by a court. A validating statute

generally contains the expression “notwithstanding any judgment decree or order of any

Court”.

Amrendra Kumar Mohapatra v. State of Orissa⁸

The Supreme Court Observed that “adjudication of rights is essentially a judicial function,

the power to validate an invited law or to legalise an illegal action is within the exclusive

power of the Legislature. Exercise of that Power by the legislature is not an encroachment

on the court's judicial power.”

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⁸2015 (4) SCC 583