Contemporanea Expositio

Contemporanea ExpositioCHAPTER I INTRODUCTION AND BASIC MEANING Contemporanea Expositio The doctrine/rule/maxim of Contemporanea Expositio holds that a construction which has been long adopted and publically acted upon, will not be lightly disturbed by the courts.1 Contemporanea expositio est optima et fortissinia in lege: meaning Contemporaneous exposition is the best and strongest in law.2 Contemporaneous Construction is the construction placed upon the statute by its contemporaries at the time of its enactment and soon thereafter. The rule of construction by reference to Contemporanea Expositio is a well established rule for interpreting a statute by reference to the exposition it has received in the past from contemporary authority, though it is considered inapplicable, even in case of contemporary statutes when the language of such statute is plain and unambiguous.3 The rule is described well in Crawford on Statutory Construction4 where it is stated in para 219 that “ administrative construction (i.e. contemporaneous construction placed by administrative executive officers charged with executing a statute) generally should be clearly wrong before it is overturned. Such a construction commonly referred to as practical 1 R. c. Cutbush (1867) LR 2 QB 379 ; 36 LJMC 70; Migneault v. Malo (1872) LR 4 PC 123; Gorham v. Bishop of Exter (1850) 15 QB 52: 19 LJQB 279: 117 ER 377 2 Black’s Law Dictionary 3 Municipal Corporation Chandigarh v. M/S Shantikunj Investment Pvt. Ltd. AIR 2006 SC 1270: 2006 AIR SCW 1169 at p. 1183; J.K. Cotton Spinning and Weaving Mills Ltd. V. Union of India AIR 1988 SC 191 4 G.P.Singh (1904 Edn.) Also under the doctrine. Bhagirathi Das (1908) ILR 35 Cal 701. Mathura Mohan Saha v. Union of India AIR 1992 SC 320. Stated the rule in the following terms: “ It is well settled principle of interpretation that courts in construing a statute will give mich weight to the interpretation put upon it at the time of its enactment and since by those whose duty it has been to construe. 1932. . Delhi Stock Exchange Ltd.5 The Validity of this rule was also recognized domestically in Baleshwar Bagarti v.p Verghese v ITO. Bhagirathi Das6. soon after its enactment and acquiesced in byt he courts and the legislature for a long period of time. Upon the enactment of the statute the history of how it has been enacted forms a part of Contemporanea Expositio and may also be used to throw light upon legislative intention. And the meaning given by contemporaries can be revealed with high certainty by resort to common usage and practice under the statute. which has crystallized over a considerable period. State of Andhra Pradesh AIR 1986 SC 210. Prabhakar Raov. 136 6 1908 ILR 35 Cal 701 7 B. it is highly persuasive”. Referred in SubCommittee of Judicial Accountability v. Baleshwar Bagarti v. as a result of obvious implication the later history may be used to assert how the enactment has been regarded in the light of development from time to time. AIR 1979 SC 1049.construction. Erunakulam. (1985) Supp 2 SCR 573. whenever the terms of such statute are vague and ambiguous. v. AIR 1981 SC 1922 at p. where Mukherjee J. Hence resort may also be made to the usage or course of conduct based upon a certain construction of the statute. upon the meaning that was given to said statute by its contemporaries because such meaning is more likely to reveal the true meaning than the meaning given to it by men of a different age or generation. although non controlling (non-binding) is never the less entitled to considerable weight. Ramkumar Saha AIR 1916 Cal. Desh Bandhu Gupta and Co.7 5 See K. execute and apply” It is generally accepted under this maxim that the court can reply upon for construction of a statute. There is a probability that at least some of these persons would have insisted on the correct interpretation of the statute and if a certain interpretation has been adopted and acquiesced in for a long period of time this affords a huge probability of its correctness. Lord Ellenborough said: is evidence of what the law is”. and in that case evidence of usage is admissible will show what the meaning attached to the document was after its execution by those interested in its interpretation.10 “There would be no safety for property or liberty if it could be successfully contended that all 8 Morgan v.8 In case of ancient or contemporary statutes there may be great difficulty in the interpretation or construing the meaning of said document or statute. Commr. Laxminarayan Chopra AIR 1962 SC 159.9 A uniform notorious practice continued under an old statute and inaction of the legislature to amend the same are important factors to show that the practice so followed was based on correct understanding of the law . Crawshay (1871) LR 5 HL 304: 40 LMJC 202: 24 LT 889:20 WR 554. “ Communis opinion”. and the ancient Act and graunts must be construed and taken as the law was holden at that time when they were made”.Bastin v. p. Governors of Campbell College v. 1098 . Of Valuation 1964 1 WLR 912: (1964) 2 ALL ER 705 (HL) 9 Senior Electric Inspector v. p 196. Lord Coke Said “ This and the like were the forms of an ancient acts and Graunts. Referring to the Magna Carta. Oldknow (1815) 3 M & S 382. Davies (1950) 1 ALL ER 1095 p. 162 :1962 (3) SCR 146 10 Isherwood v. and the meanings of the words employed.CHAPTER II RATIONALE OF CONTEMPORANEA EXPOSITIO One of the strongest arguments in the favour of Contemporanea Expositio is that the Judges who lived at or about that time when the statutes were made were best able to judge the intentions of the makers at that time. 74 117 ALL ER 377 p. is adopted in the framing of a later statute it is a sound rule of construction to hold that the words so adopted were intended by the legislature to bear the meaning which had been so put upon them.”18 11 12 Gorham v. As stated by Martin B “ In construing old statutes it has been usual to pay great attention to the construction out upon them by the judges who lived at or soon after the time they were made because they were best able to judge of the intention of the makers at the time.”14 In Craies on “Statute Law”15 it is stated that : “ when a particular form of legislative enactment which has received authoritative interpretation. Gen for Ireland (1849) 2 HLC 837 .11 When the practice receives judicial or legislative approval it gains additional weight and is to be more respected. 386 Supra at 8 13 Ram Adhar Singh vs. Conversely if we find that the language employed by the legislature intended he earlier statutes on a particular subject has been departed from in subsequent statute relating to the same subject.”12 The doctrine of stare decisis may also be applied when the law is settled in a State for over 100 years by considered view of the High Court of that State.Lord Campbell.13 As to legislative approval to a departmental practice LORD MACHNAGHTEN said. “When you find legislation following a continuous practice repeating the very words on which that practice was founded. And perhaps it might be argued that the inference grows stronger with each successive re-enactment. Pemsel. 15 th 6 ed. pp. Gen.. 2003 .”. (1891) AC 531. Att. Bansi. (1987) 2 SCC 482. Ghewarchand AIR 1979 Raj 148 at pp.485. 591 (HL). 1963. 141 Referred to in Basti Ram v. Third Indian Reprint. 14 Commissioner for Special Purposes of Income-tax vs. whether but Judicial Decision or by a long course of practice. p. pp 139. p. but not always a fair presumption that the alteration in the language used in the subsequent statute was intentional” In Odgers‟ construction of deeds and statutes 16 it has been further stated “ in the construction of ancient grants and deeds there is no better way of construing them than by usage: Contemporanea Expositiois is the best way to go by”17 “In construing such an instrument you may look to the usage to see in what sense the words were used at that time. Exeter (BP) (1850) 15 QB 52 p. Parker (1747) 3 ATK 576 18 Drummond v.lawyers and statesmen have been mistaken for centuries as to the true meaning of an old act of the Parliament. it may perhaps fairly be inferred that the Legislature in re-enacting the statute intended those words to be understood in their received meaning. 590. 155-156 16 See 1967 ed. 122 17 Att. v. it is generally. Where this has been given by enactment of judicial decision it is of course to be accepted as conclusive” The rationale behind the rule of Contemporanea Expositio has been well explained in the case of Desh Bandhu Gupta and Co. is nevertheless entitled to considerable weight.”19 According to Maxwell20. at the time of its enactment and since.. P.e. and in a clear case of error.“Contemporaneous usage is indeed a strong ground for the interpretation of doubtful words and expressions. 264 21 AIR 1979 SC 1049. (1979) 4 SCC 565. although not controlling. V. have to be disregarded for cogent and persuasive reasons. 21 It is said in this case „The principle of contemporanea expositio (interpreting a statute or any other document by reference to the exposition it has received from contemporary authority) can be invoked though the same will not always be decisive of the question of construction. execute and apply it-I do not suggest for a moment that such interpretation has by any means a controlling effect upon the Courts. 12 ed. Ram Kumar Saha23 as : „It is well-settled principle of interpretation that Courts in construing a statute will give much weight to the interpretation put upon it. The Rationale behind the rule has also been explained very well in an English case of R. “ It is said that the best exposition of a statute or any other document is that which it has received form contemporary authority.. if occasion arises.‟ This case further took the help of the cases of Baleshwar Bagarti v. Casement24where it was said amongst other things that the meaning publicly given by 19 20 Ibid. th Interpretation of Statutes. Air 2006 SC 3127 at p. such a construction. Delhi Stock Exchange Association Ltd. in Mathura Mohan Saha v. contemporaneous construction placed by administrative or executive officers charged with executing a statute) generally should be clearly wrong before it is overturned. 3160 22 ILR 35 Cal 701 at p. a Court would without hesitation refuse to follow such construction'. Bhagirathi Dass 22 which reiterated a principle stated by Mookerjee J. such interpretation may. by those whose duty it has been to construe. reffered in Kuldip Nayar v. commonly referred to as practical construction. 713 23 AIR 1916 Cal 136 : ILR 43 Cal 790 . it is highly persuasive. Union of India.4 it has been stated that administrative construction (i. vs.3 In Crawford on Statutory Construction. perhaps be regarded as some sanction and approval of it 24 (1917) I. and those who lived at or near that time when it was passed may reasonably be supposed to be better acquainted than their descendants with the circumstances to which it had relation. as well as with the sense then attached to legislative expressions.contemporary or long professional usage is presumed to be true one.B. even where the language has etymologically or popularly a different meaning. It is obvious that the language of a statute must be understood in the sense in which it was understood when it was passed.K. the long acquiescence of the legislature in the interpretation put upon its enactment by notorious practice may.98 . Moreover. Wyatt (1907) 1 KB 95. Subject to the use made of contemporary official statements and statutory instruments the principle of Contemporanea Expositio is inapplicable to modern statutes. Union of India AIR 1988 SC 782 27 Supra at 26 . Senior Electric Inspector v.K. but its application per-se is not immune to Judicial Review. Union of India AIR 1988SC 191’ Doypack Systems Pvt. no doubt is entitled to respect in terms of persuasive and sometimes binding value. Ltd.Cotton Spinning and Weaving Mills Ltd. Where the statute in question is an old statute and not a modern statute26 2. Bombay Environmental Action Group. Laxminarayan Chopra AIR 1962 SC 159. Where the terms of said statute are not clear and are unambiguous It is also of importance to note that the Rationale behind the application of the rule as has been elucidated in the previous chapter is also based on the fulfilment and the strict limited application of the rule only in the cases described above. Assheton Smith v. J. AIR 2006 SC 1289 at p. v. Each case must be considered on its own facts.27 Even of the people who made the statute interpreted it in a certain way the court cannot be stopped form giving a different interpretation which might actually be the true interpretation of the 25 Bombay Dyeing and Mfg.. v. 1534 26 Clyde Navigation Trustees v. Raja Ram Jaiswal v. Owen (1906) 1 Ch 179. but does not have universal application. Ltd.CHAPTER III SCOPE OF THE MAXIM Scope of the Maxim Even though the principle of Contemporanea Expositio has a very wide application in the field of interpretation of statutes. v. Goldsmiths’ Co. State of Bihar AIR 1964 SC 828. Co.25 In fact the application of the rule of Contemporanea Expositio as has been mentioned earlier is limited only to cases: 1. Bombay v. A construction practice having force of law and being followed for a number of years. Laird(1883) 8 AC 658. 29 In a modern progressive society it would be unreasonable to confine the intention of the legislature to the meaning attributable to the word used at the time the law was made and unless contrary intention appears.L. v.R.28 The doctrine according to Lord Upjohn “ is confined to the construction of ambiguous language used in very old statutes where indeed the language itself have had a different meaning in those days. 36 R. State of Bihar AIR 1964 SC 828 35 (National & Grindlays Bank vs. this doctrine was applied in construing the Bombay Municipal Corporation Act.32 The doctrine Contemporanea expositio is confined to the construction of ambiguous language used in very old statutes where in fact the language itself had a rather different meaning in those days. an interpretation should be given to the words used to take in new facts and situations if the words are capable of comprehending them. v. 35 The principle was also referred to in construing section 21 of the Indian Penal Code 1860 and in holding that an M. However.Aunteley (1984) 2SCC 183 . Goldsmiths’ Co.”31 It is respectfully submitted that even if the persons who dealt with the Act understood it in a particular manner.K. Union of India AIR 1988SC 191 . and the Evidence Act. v. Municipal Corporation of Gr.Cotton Spinning and Weaving Mills Ltd. 1880. Senior Electric Inspector v. Laird(1883) 8 AC 658.statute. But i bound to construe a recent statute according to its own terms. A. When there are ambiguous statements in an act passed one or two centuries ago it may be legitimate to refer to the construction put upon their expression throughout a long course of years by the unanimous consent of all parties interested as exercising what must presumably have been the intention of the legislature at the remote period.30 Lord Watson stated the rule in the following words : “ In my opinion such usage has been termed Contemporanea Expositio is of no value in construing a British statute of the year 1858. Wyatt (1907) 1 KB 95. that does not prevent the Court in giving to the Act its true construction. Commr. The Supreme Court has refused to apply the principle of Contemporanea expositio to the Telegraph Act. State of Punjab AIR 1990 SC 2300 at page 2304 33 Senior Electric Inspector v.A us not a public servant as defined therein. Doypack Systems Pvt. Laxmi Narayan Chaopra AIR 1962 SC 159 31 Clyde Navigation Trustees v. State of Punjab AIR 1990 SC 2300 Governors of Campbell College v. Bombay AIR 1969 SC 1048). Laxminarayan Chopra AIR 1962 SC 159 34 Raja Ram Jaiswal v.S. 187234.36 The supreme court also referred to the actual practice in the matter of appointment of judges of Supreme court and High Courts in 28 29 Punjab Traders v. Of Valuation (1964) 1 ALL ER 705 30 J. Union of India AIR 1988 SC 782 32 Punjab Traders vs. Ltd. 188533.Nayak v. 727 . Union Of India AIR 1994 SC 269 (1964) 2 ALL ER 705 p.the context of Interpreting Articles 74 and 124 of the Constitution and observed that the practice being in conformity with constitutional scheme should be accorded legal sanction by permissible constitutional interpretation. Charitable purposes. It was accepted that if the test in Pemsels‟ case39 applied the school would be entitled to the exemption. 37 A question as to the application of the rule of Contemporanea Expositio arose before the House of Lords in the recent case of Governors of Campbell College v. Commr of Valuation38. 727 39 (1891) AC 531 (HL) 40 (1914) 2 Ir R 447 41 (1964) 2 ALL ER 705 p.41Lord Upton in the same case said “ For my part I am quite unable to apply that principle to a statute although it was passed a Hundred years ago whose language is plain and unambiguous and was not misconstrued until the decision in Alexandra College‟s Case sixty years later. So the house of lords in 1969 overruled a century old practice of assessing compensation by reference to values prevailing at the date of notice to quit and held that the same should be assessed with reference to the values prevailing when possession is taken or when assessment 37 38 SC Advocates on Record Assn. and the law may be overruled even if such practice had consequently achieved the backing of judicial decisions and especially so in case. The house of Lords held that the decision of the case of Alexandra College‟s Case was unsupportable and the schiil was entitled to the exemption. in the changed circumstances its continuance let to great hardship. Viscound Radcliffe pointed out that the decision rendered in 1914 relating to the act of 1854 was not Contemporanea Expositio. The governors of a feel paying public school claimed that the school was exempted from rates being used for charitable purposes within section 2 of the of the Valuation (Ireland) Amendment Act 1854. v. The application and scope of the rule of Contemporanea Expositio is extremely limited especially in cases where the application had no legal basis. It was however contended from the opposite side that under a long standing practice supported bu Alexandra College‟s Case40 the exemption had been confined to those educational institutions whose charitable purposes were concerned with the education of the poor. for educational purposes were in law. In the instant case a service rule enabled section officers possessing a recognized degree in civil Engineering or an equivalent to claim promotion if they had put in „ three years service in the grade‟ where as six years were required for a diploma holder. Uinion of India(1985) 2 SCC 197 45 AIR 1967 SC 212 . the question before the court now became whether the time period of three years was to be counted from the date the officer obtained the degree or from the original date of joining service. if injustice resulting from the departure and the approval that it has been received in judicial decisions or in legislation. This principle was applied in construction of the expression „ capital employed „ in section 80 J of the Indian Income Tax Act 1962 and in upholding the validity of rule 19A of the Income tax rules which requires the exclusion of borrowed moneys from computation of „capital employed‟. Ratan Singh 45 the question before the supreme court was with regards to the Scheduled Districts Act 1874 which authorized the local government ro appoint officers t administer civil and criminal justice and to regulate the procedure of officers so appointed.is made.42 And similarly the House of Lords overruled a long standing judicial acceptance of the meaning of the word wilfully as that had operated to the prejudice of the accused. According to the long continuing practice the period of three years was counted from he date the degree was obtained and this practice was duly followed in this case in construing the rule in light of the principle of contemporanea exposition.44 In the case of State of Nagaland v. the nature of rights and property affected by it.43 But a uniform and consistent departmental practice arising out of construction placed upon an ambiguous statute by the highest executive officers at or near the time of its enactment and continuing for a long period of time is an admissible aid to the proper construction of the statute by the court and would not be disregarded except for cogent reasons. In negating the contention that the authority conferred was merely to 42 43 Birmingham City Corporation v. In case the officer obtained the degree during service. The court in this regards said “ if the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. The controlling effect if tgus aid which is known as „ executive construction would depend upon various factors such as the length of time for which it is followed. West Midland Baptist (1969) 3 ALL ER 172 (HL) R. v. Shephard (1980) 3 ALL ER 899 44 Lohia Machines Ltd. namely. Income Tax Officer.P. Courts have treated contemporary exposition and used them as aids to interpret even recent statutes.make administrative rules and not subordinate legislation pertaining to the procedure to be followed in deciding cases the SC referred to the rules of 1872.1906 and 1937 containing comprehensive rules of procedure and said “ it is clear that a succession of officers saw the necessity if rules controlling not only the administrative side but also the judicial side of administration of justice. execute and apply the same enactment. Ernakulam47 It is a well settled principle of interpretation that Courts in construing a statute will give much weight to the interpretation put upon it at the time 9f its enactment and since. 1874 . It is perhaps difficult to attribute to a legislative body functioning in a static society that its intention was couched in terms of considerable breadth so as to take within its sweep the future developments comprehended by the phraseology used. The fundamental rule of construction is the same whether the Court is asked to construe a provision of an ancient statute or that of a modern one. Varghese v. what is the expressed intention of the Legislature. But in a modern progressive 46 47 AIR 1989 SC 626 AIR 1981 SC 1922 . A Circular can be read as a contemporaneous understanding and exposition of the intention and purport of the Notification." The maxim contemporanea expositio as laid down by Coke was applied to construing ancient statutes.46 the Supreme Court observed: "It is well settled that the meaning ascribed by the authority issuing the Notification is a good guide of a contemporaneous exposition of the position of law. Thus in Collector v. There is a good reason for this change in the mode of interpretation.” In construing the word „houses‟ in the Section 89 of the Bombay Village Panchayats Act 1933 the SC relied upon the rules made in 1934 which used the word „building‟ in place of „houses‟ as one of the aids for holding that the word „houses‟ also includes all buildings whether used for residential or commercial purposes and not just for dwelling purposes. by those whose duty has been to construe. Andhra Sugar. Reference may be made to the observations of this Court in K. but not to interpreting Acts which are comparatively modern. It is more reasonable to confine its intention only to the circumstances obtaining at the time the law was made. 162 :1962 (3) SCR 146 Municipal Corporation for the city of Pune v. Ltd. economic. 1995 (2) Scale 245 . Bharat forge Col.49 48 49 Senior Electric Inspector v.48 It should also be noted that the principles of Contemporanea Expositio and executive construction though relevant for solving a case of an ambiguity cannot be used for bringing about an implied repeal or quasi repeal. if the words are capable of comprehending them.society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made. unless a contrary intention appears. an interpretation should be given to the words used to take in new facts and situations. political and scientific and other fields of human activity. p. for a modern Legislature making laws to govern a society which is fast moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social. Laxminarayan Chopra AIR 1962 SC 159. 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