Illustrations to Statutory Provisions and their Treatment by the Courts in India

Introduction

In several statutes such as the Contract Act, 1872¹, the Evidence Act, 1872², the Penal Code, 1860³, the Transfer of Property Act, 1882⁴, the Easements Act, 1882⁵, etc., the legislature of the day often incorporated illustrations to several sections within a statute to elucidate the true purport of a section. This legislative trend was particularly prevalent in pre-constitutional statutes and is conspicuously absent in statutes that were enacted after 1950. Perhaps one of the reasons for incorporating illustrations within an enactment can be found in a judgment of the Allahabad High Court in Nanak Ram v. Mehin Lal⁶ in which Stuart, C.J. while speaking for the Court opined,

495. … I allude to those “illustrations” which the Government of India in its legislative capacity have thought fit of late years, and no doubt with the best and most considerate motives, to add to its legislative enactments. These illustrations, although attached to do not in legal strictness form part of, the Acts, and are not absolutely binding on the courts. They merely go to show the intention of the framers of the Acts, and in that and in other respects they may be useful, provided they are correct. In this country, where 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 officers appliances such as the illustrations in question for their guidance and direction in the performance of their duties. But, for myself, I can truly say I have never experienced their utility and it fear they sometimes mislead and I observe they are more regarded in the subordinate courts in these provinces, and even by the pleaders of this High Court, than is the paramount language of the Act itself, of which, however, as I have remarked, they, strictly speaking, form no part.⁷ ( emphasis supplied)

Though the aforesaid observations bring out the false sense of superiority and highhandedness prevalent in the colonial era, it would appear that the reasons for incorporating illustrations within a statute would simply be to familiarise Indian legal practitioners and judicial officers particularly in mofussil areas with certain legal concepts and principles prevalent in the common law system. According to Stuart, C.J. illustrations were not in that sense required or relied upon by Judges and practitioners practising in the High Court. He goes onto observe,

496. … To be of real service to those for whose assistance these illustrations are intended, they ought to be pellucidly clear in their phraseology and, if possible, I had almost said infallibly sound in their law. But for the purposes of the High Courts of this country these illustrations are not only not required in any sense, but they are frequently the cause of embarrassment, and I would infinitely prefer to have the bare and simple language of the Act itself, without any appendages of the kind. I am afraid too, that they are open to the objection of being opposed to the canons of construction which prevail in the English Court for the interpretation of statutes.⁸

( emphasis supplied)

An illustration to a statutory provision “merely illustrates a principle and what the court should try and do is to deduce the principle which underlines the illustrations”.⁹ They are parts of a section that help to elucidate the principle of the section.¹⁰ They provide a “better clue to the meaning sought to be conveyed by the language of the section than the setting in which the section appears in the Act or the headings that the sections, parts or chapters carry”.¹¹ Illustrations are only aids to understanding the real scope of an enactment, beyond which they cannot extent or limit the scope of the text.¹²

The purpose of this article therefore is to ascertain how the courts in India, namely, the High Courts and the Supreme Court have looked upon illustrations to sections. However, prior to referring to the decisions of the High Courts and the Supreme Court, it would be necessary to refer to certain decisions of the Judicial Committee of the Privy Council on the issue at hand since most of the pre-constitutional statutes containing these illustrations have at some stage or the other been interpreted by the Privy Council.

Decisions of the Privy Council

In Mohd. Syedol Ariffin v. Yeoh Ooi Gark¹³, while interpreting the Straits Settlements Evidence Ordinance¹⁴, the Privy Council gave significant weightage to the illustrations within the statute and noted,

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 the sections deal. And it would require a very special case to warrant their rejection on the ground of their assumed repugnancy to the sections themselves. It would be the very last resort of construction to make any such assumption. The great usefulness of the illustrations, which have, although not part of the sections, been expressly furnished by the legislature as helpful in the working and application of the statute, should not be thus impaired.¹⁵ ( emphasis supplied)

However, subsequently in Bengal Nagpur Railway Co. Ltd. v. Ruttanji Ramji¹⁶, the Privy Council cautioned that an illustration cannot have “the effect of modifying the language of the section which alone forms the enactment”.

In Anirudha Mitra v. Administrator General of Bengal¹⁷ the Privy Council held,

It is well settled that just as illustrations should not be read as extending the meaning of a section, they should also not be read as restricting its operation, especially so, when the effect would be to curtail a right which the plain words of the section would confer.

Thus, a collective reading of the aforesaid decisions of the Privy Council would show that though significant importance and judicial notice should be given to illustrations to a section, an illustration cannot expand or restrict the meaning of a provision.

Decisions of certain High Courts and the Supreme Court

In an old pre-constitutional decision delivered in 1924, the Allahabad High Court in Sajid-un-nissa Bibi v. Sayed Hidayat Hussain¹⁸ while examining one of the illustrations to Section 13 of the Easements Act, 1882¹⁹ held,

6. … If the meaning of the enactment itself were doubtful, a reference to the illustration in order to clear the meaning would have been justified. But, if there be any conflict between the illustration and the main enactment, the illustration must give way to the latter.²⁰ ( emphasis supplied)

The importance of illustrations to a section was also emphasised by the Madras High Court in Ramalinga Mudaliar v. S.R. Muthuswami Ayyar & Sons²¹ in which Beasley, J. after quoting from the decision of the Privy Council in Yeoh Ooi Gark²² opined that “a court should not lightly disregard the illustrations merely because they do not seem to be in accord with generally accepted ideas as to the law in other places”. The decision of the Privy Council in Yeoh Ooi Gark²³ was also relied on by the Supreme Court in Jumma Masjid v. Kodimaniandra Deviah²⁴.

However, one of the earliest decisions of the Supreme Court on the issue was delivered by a Division Bench in Shambu Nath Mehra v. State of Ajmer.²⁵ The illustration that the Court was dealing with was Illustration (b) to Section 106²⁶ of the Evidence Act, 1872. The Court opined that it recognised “11. … that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit”.²⁷ The Supreme Court followed the same principle laid down by the Privy Council in Anirudha Mitra v. Administrator General of Bengal.²⁸

The decision of the Supreme Court in Shambu Nath Mehra v. State of Ajmer²⁹ was also followed by a three Judge-Bench of the Supreme Court in Lalit Mohan Pandey v. Pooran Singh³⁰. In the instant case, the Court was interpreting the illustrations in Schedule II to Rule 26 of the Uttar Pradesh Zila Panchayats (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Disputes) Rules, 1994³¹. The Court held that though illustrations are of relevance and “some value in the construction of the text of the sections ”, they cannot modify the language of the statute or curtail or expand the same.³²

In Sharad Kumar v. State of M.P.³³, a Division Bench of the Madhya Pradesh High Court, in a reference made to it³⁴, had the occasion to interpret an illustration to Section 116 of the Penal Code, 1860³⁵. The Madhya Pradesh High Court referred to in Yeoh Ooi Gark³⁶, Bengal Nagpur Railway Co. Ltd. v. Ruttanji Ramji³⁷, Jumma Masjid v. Kodimaniandra Deviah³⁸ and Shambu Nath Mehra v. State of Ajmer³⁹ and went onto the opine?? that an illustration to a section unlike a marginal note “is to be considered as part of the section itself and is to be accepted as being both relevant and valuable for the construction of the section”.⁴⁰

Concluding comments

A collectively reading of the authorities set out above would show that though the courts have recognised illustrations as a useful aid in interpretation of a statutory provision and have even considered illustrations as a part of a statute (unlike a marginal note), the courts have held that an illustration cannot go beyond a statutory provision or for that matter expand or restrict the scope of a section. In case of a conflict between a statutory provision and an illustration, the provision would give way to the illustration. The plain language or bare text of a section would be a paramount consideration on how a provision of law must be interpreted or read.