“Law Master’s Publications
‘Arrest, Search and Seizure’
Prof. S. D. Bhosale
42
(..5..)
Presumptions of Statutes
1. Explain in detail the rules relating to the Presumption of Statutes.
2. Define Presumption and discuss the rule of presumption in the following cases:-
i. Presumption of Constitutionality
ii. Presumption as Rule of Evidence
iii. Mandatory and Discretionary Presumptionzzdds
Presumption of Statutes:-
The courts can make certain presumptions /assumptions about the law as they are
more like conclusions. ‘Presumption’ means assuming something to be true. The
expression “presumption” in interpretation means that while interpreting a statute or any
provision thereof, the courts must deem certain things to be true and correct. It means an
act of presuming, assuming, or imagining something to be true. Presumptions are
guidelines used by the courts in the process of interpretation. However, they are only used
if there is any ambiguity in the language used in the statute.
1. It is presumed that statutes are valid:-
When the validity of the statute made by the competent legislature is challenged,
the court must presume that the statute is valid. Moreover, there is a presumption in favour
of the constitutionality of an Act.
“Law Master’s Publications
‘Arrest, Search and Seizure’
Prof. S. D. Bhosale
43
When the meaning of the statutory language gives two meanings, the statute
should be construed in such a way as to give it constitutional validity and not to raise any
doubts about its constitutional validity. This rule applies even to by-laws and the
Constitutional Amendments Act.
Facts:- The constitutional validity of “the Rajasthan Nathdwara Temple Act” was
challenged. The Supreme Court, under S. 16 of the said Act, construed the words “affairs
of the temple” as restricted to secular affairs and, as such, had to be constitutionally valid.
If a wider construction had been given to the said Section, it would have violated Art 25
and 26 of the Constitution.
2) Statutes are territorial in Operation:-
There is a presumption that the legislature does not exceed its jurisdiction, and the
burden of establishing that the Act is not within the competence of the legislature or that it
has transgressed some constitutional mandates is always on the person who challenges the
vires.
The general rule for an Act of parliament is that it is applicable only within the
territories of the Country unless otherwise provided.
Thus, the statutes passed are binding within the boundaries of the country in which
passed it. However, as per Art.. 245(2) of the constitution of India, “No act made by the
Parliament shall be deemed to be invalid on the ground that it would have an extra-
territorial operation.” Therefore, Courts are bound to enforce such legislation. For example,
The Indian Penal Code of 1860 is extra-territorial. According to S. 3, any person bound by
Indian Law, committing any offense outside India, shall be tried in India as if he has
committed that offense in India.
S. 4 provides that the Indian Penal Code applies to any offence committed by any
citizen of India in any place without or beyond India and by any person on any ship or
aircraft registered in India, wherever in the world it may be.
Various state legislatures in the country are empowered to enact a law for the whole state
or any part of the state. The laws passed by the state legislatures are for that state only;
those laws, in the absence of any territorial connection, cannot have any extra-territorial
operations.
The Supreme Court held that the ‘offence of criminal conspiracy is like a continuing
1 1963 AIR 1638
2 1993 AIR 1637
“Law Master’s Publications
‘Arrest, Search and Seizure’
Prof. S. D. Bhosale
44
offence. Therefore, the acts which constitute criminal conspiracy, whether committed in
Dubai or Chandigarh, are immaterial. The offence can be tried in India under S. 4 of the
Indian Penal Code.
The Supreme Court held that the laws made by the state legislature apply within the
boundaries of the concerned state. It can be challenged for its extra-territorial operation
because Article 245(2) of the Constitution of India empowers only the Union Parliament
to make extra-territorial laws.
3) Presumption as to Jurisdiction: -
As per the presumption, an interpretation taking away the jurisdiction of the courts
should not be given effect unless the words of the statute provide so in clear and explicit
terms. As per the presumption, civil courts have jurisdiction to try all civil cases. The
exclusion of jurisdiction of civil courts is not to be readily inferred. The same is true with
criminal cases.
The basis of this presumption is that courts should be accessible to all those who
want justice. Unless the court's jurisdiction is ousted by the legislature in clear words or by
necessary implication, the courts should be presumed to have jurisdiction. The construction
of a statute that takes away the jurisdiction of the superior courts or extends the jurisdiction
by giving the right to appeal should be avoided. When the statute confers the jurisdiction,
it is implied that the Act has also given the power to do all such acts as necessary for its
execution.
In the cases where the jurisdiction of the courts is excluded, the civil courts have the
power to examine whether the provisions of the statute are complied with. Also, the civil
courts have the power to ascertain that the tribunal created by the statute has followed the
prescribed procedure of the law. If the provisions of the statute or the necessary judicial
procedure are not complied with, then such non-compliance can be challenged in a court
of law. Special powers granted by an Act must be limited to the purpose for which it is
granted. The power of control by the superior courts cannot be taken away except by the
express provision of the Statute. Unless the words of a statute provide for it can be inferred
from the words of a statute, there is a presumption that neither new jurisdiction of the courts
is created nor the existing jurisdiction is enlarged.
Since the legislation gives the jurisdiction to the courts, it is only the legislation that can
take away the jurisdiction. If the interpretation of an Act gives two constructions, one
giving jurisdiction to the court and the other taking away the jurisdiction, the construction
3 1960 AIR 1080
“Law Master’s Publications
‘Arrest, Search and Seizure’
Prof. S. D. Bhosale
45
which gives the jurisdiction to the court must be given effect. Disputing parties by mutual
consent can neither create a jurisdiction nor can they take away the same from the court in
which their dispute can be tried.
The Supreme Court held that the exclusion of the civil court's jurisdiction must not be
construed readily. If the provisions of an Act give finality to the orders of the Authority as
enacted. In that case, civil courts still have jurisdiction in the matter if the provisions of the
Act are not complied with, or the statutory tribunal has failed to follow the principles of
judicial procedure.
Bhiji Shankar Kulkarni Vs. Dundappa Vithappa Udapudi 5
The Supreme Court held that if the revenue court is given the exclusive jurisdiction to try
certain matters and the jurisdiction of the civil court is totally excluded; then the civil court
should transfer such matters to be tried and adjudicated by the revenue court only.
4) Presumption as to the prospective operation of statutes:-
The Presumption as to the prospective operation of statutes implies that the law
applies in the future or at least from the date of commencement of the statute. The statute
will be effective from the date previous to the date on which the statute came into force. A
statute may be expressly declared retrospective, or it may be implied by the court as
retrospective.
The Supreme Court evolved that doctrine of prospective overruling.
It held that all amendments made with respect to the fundamental rights till the day of the
decision in the case would continue to remain valid and effective, and after that date, the
Parliament would have no power to amend any of the fundamental rights contained in Part
III of the Constitution.
Penal statutes always have a prospective operation. Article 20 of the Constitution of India
restricts the retrospective operation of the Penal statutes. An act that is legal when it is done
cannot be made illegal by enacting a new statute.
Gramma V. Veerupana-
The issue before the court:- S. 8 of “The Hindu Succession Act, 1956 provides that if a
Hindu male dies intestate, his property will devolve as per the provisions of the Act.
The Supreme Court held that the Act is not applicable to those successions which opened
4 1964 AIR 1873
5 1966 AIR 166
6 A.I.R. 1967 SC 1643
“Law Master’s Publications
‘Arrest, Search and Seizure’
Prof. S. D. Bhosale
46
before the Act came into operation (i.e., successions prior to the year 1956). Thus, it has
only prospective operations.
In Govind Das V. Income Tax officer-
“The income tax act, 1961” came into force on 1st April 1962. S. 171(6) of the Act imposes
the joint and several liability on the members of the Hindu Undivided Family to pay the
tax assessed on its property if the assessment is already completed and it is found that the
family has already affected partition.
The Supreme Court held that S. 171(6) of the Income Tax Act, 1961, will not apply to
assessments that were made before 1st April 1962.
Statutes dealing with procedural matters are an exception: -
Procedural statutes are also known as adjunctive statutes. They do not confer any rights or
create any new rights and, therefore, may have retrospective operation.
A retrospective operation should not be given to an act that will impair an existing right or
an obligation. There is a presumption that a statute applies to acts or circumstances which
came into existence after the Act came into existence unless the legislature intended to
apply it retrospectively.
The Supreme Court held that S. 123 of the Customs Act, 1962, since it deals with matters
of procedure, will have retrospective operation.
5. Presumption against violation of international law:-
As per presumption, every statute is to be applied and interpreted as far as its
language admits, in a way that is not to be inconsistent with the established rules of
international law. But this intention must be clearly expressed in the enactment. The
Constitution of India has been inspired by international law, among other constitutions. It
owes great respect to international law. Therefore, it enshrines many provisions respecting
international law. According to Art. 253, the parliament has the sole right to make laws for
the whole or any part of India's territory to execute an international treaty, agreement, or
convention with other countries or any decision made at any association or conference.
Thus, Art. 253 empowers the parliament to pass laws on matters mentioned in List II of
Schedule VII in order to execute international treaties, agreements, and conventions.
The Indian judiciary has also played a very active role in implementing India’s
international obligations under international treaties, especially in environmental law and
human rights.
7 1975 AIR 2083
“Law Master’s Publications
‘Arrest, Search and Seizure’
Prof. S. D. Bhosale
47
The Supreme Court, while drafting the guidelines on sexual harassment of women at the
workplace, referred to many international conventions and norms which were relevant for
the purpose of guaranteeing gender equality, the right to work with dignity and the
adherence to Articles 14, 15, 19(1)(g) and 21 of the constitution.
The Supreme Court relied upon Article 9(5) of the International Covenant on Civil and
Political Rights (1966) while granting compensation to the victim for the matter of
custodial death.
6. Presumption whether statute affects the state (Crown):-
The rule of Common Law is that ‘No statute binds the Crown unless the Crown is
named therein expressly or by necessary implication.’ Since the law is passed by the crown
for its subjects, there is a presumption that a statute does not bind the crown. The crown,
by passing a statute, does not wish to harm his own interest, nor does he wish to interfere
with his own rights. Therefore the crown is not bound by a statute. No statute binds the
crown unless the crown is named therein expressly or by necessary implication. Since the
statute is presumed to be enacted for the subjects and not for the crown himself.
In India, the question of whether a statute binds the state or not does not seem to be
clear beyond doubt. The Supreme Court, till 1964, had consistently been deciding
following the English presumption that the state is not bound by a statute unless expressly
named therein or included by necessary implication. But the position seems to have
changed since 1967. Since that year Supreme Court has been holding that the presumption
under English law is not applicable in India.
A statute is not to be construed as binding the Crown or Crown instrumentalities
or agents unless it manifests a legislative intent, so to do either by express words or by
"necessary implication" in the limited and stringent sense.
Whether a given statute binds the Crown by necessary implication is to read the statute as
a whole and to see whether it manifest from the terms of the statute, that it was intended
by the Legislature that the Crown should be bound by it.
provisions of the Bombay Municipal Act, 1888, which authorised the Commissioner to
carry water lines and municipal drains through or under any land whatsoever within the
city, were applicable in respect of Govt land within the town. It was contended that without
8 IR 1997 SC 3011
9 1993 AIR 1960
10 AIR 1947 PC 34
“Law Master’s Publications
‘Arrest, Search and Seizure’
Prof. S. D. Bhosale
48
the Govt being bound, the Act would not operate with reasonable efficiency. Another
argument was that there were certain express exemptions in certain provisions which
showed that the Govt was bound otherwise. The Court negated both these arguments and
ruled in favour of the Govt.
The Supreme Court held that in India, a general Act applies to citizens and also to the State
unless it expressly or by necessary implication exempts the State from its operation. It also
stated that this rule would be most compatible with the Doctrine of Equality enshrined in
the Constitution and also with the Democratic principles of this nation.
Consumer Protection Act, 1986, applies to the Govt in the same way as it applies to private
bodies, for the Act does not either expressly or impliedly indicate that these bodies are
excluded from the purview of the Act.
In other words, in Independent India, the State is also at par with citizens unless specifically
excluded from the application of the Act.
7. Presumption against impairing obligation or permitting advantage for one’s own
wrong:-
The General principle of avoiding injustice and absurdity is to reject any
construction that enables a person to defeat a statute, impair the obligation of his contract
by his own act or profit by his own wrong.
8. Presumption against an action based on one’s own wrong:-
Statutes relating to succession usually do not contain any provision excluding
from their benefits one who has killed the person to whose property succession is claimed.
But courts in most countries have "read" such an exception into such statutes. The courts
do not allow the statute to be so applied as to enable the killer to succeed to the estate of
the person killed.
The courts presume that the legislature had impliedly assumed that certain rules of morality
would be applied “ex turpi causa non oritur action an action (suit) cannot be founded on an
immoral act.
York issued an 1889 opinion holding that a grandson cannot succeed under the will of his
grandfather murdered by him.
11 1967 AIR 997
12 AIR 1994 SC 787
13 (1899) 115 N. 506
“Law Master’s Publications
‘Arrest, Search and Seizure’
Prof. S. D. Bhosale
49
The settled principle of law is "no one shall be permitted to profit by his own fraud, or to
take advantage of his own wrong or to found any claim upon his own inequity or to acquire
property by his own crime.
Reference-
*****