Internal Aids And External Aids 3r1i27

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INTRODUCTION The essence of law lies in the spirit, not its letter, for the letter is significant only as being the external

manifestation of the intention

that underlies it. Salmond A statute is a will of legislature conveyed in the form of text. Interpretation or construction of a statute is an age-old process and as old as language. Elaborate rules of interpretation were evolved even at a very early stage of Hindu civilization and culture. The rules given by ‘Jaimini’, the author of Mimamsat Sutras, originally meant for srutis were employed for the interpretation of Smrities also. 1 It is well settled principle of law that as the statute is an edict of the Legislature, the conventional way of interpreting or construing a statute is to seek the intention of legislature. The intention of legislature assimilates two aspects; one aspect carries the concept of ‘meaning’, i.e., what the word means and another aspect conveys the concept of ‘purpose’ and ‘object’ or the ‘reason’ or ‘spirit’ pervading through the statute. The process of construction, therefore, combines both the literal and purposive approaches. However, necessity of interpretation would arise only where the language of a statutory provision is ambiguous, not clear or where two views are possible or where the provision gives a different meaning defeating the object of the statute.2 The object of all interpretation of a written instrument is to discover the intention of the author as expressed in the instrument. 3 There are many so called rules of construction that courts have resorted to in their interpretation of statutes but the paramount rule remains that 1 Law Commission of India, 60th Report, Chapter 2, para 2.2 2 Law Commission on India, 183rd Report, ‘A continuum on the General Clauses Act, 1897 with special reference to the issibility and codification of external aids to interpretation of statutes’ P.8

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every statute is to be expounded according to its manifest and expressed intention.4 Interpretation of statute being an exercise in the ascertainment of meaning, everything which is logically relevant should be issible.5 The most common rule of interpretation is that every part of the statute must be understood in a harmonious manner by reading and construing every part of it together. The maxim “A Verbis legis non est referendum” means that you must not vary the words of the statute while interpreting it. Interpretation of statute is the process of ascertaining the true meaning of the words used in a statute. It is therefore necessary to interpret the statute to find out the real intention of the statute.6 RESEARCH METHODOLOGY:The research methodology is purely doctrinal in nature. Further, it is basically descriptive, comparative and fundamental, qualitative and appraisal oriented research (at place conceptual) which deploys deductive logical reasoning for elaborating the reasons of the exhaustive interpretation. AIMS & OBJECTIVE:The main objective of this research paper is to do comparative study of the internal & external aids to interpretation. Further it will deal with the situation when there is a conflict between internal and external aid which will prevail. I will try to come out with all the loopholes of internal 3 Halsubury’s Laws Deeds and Other Instruments Vol 13 (2007 Reissue) Para 165 4 A-G for Canada v. Hallet & Carey Ltd. [1952] Ac 427 5 K.P. Varghese v Income Tax Officer Ernakulam, AIR 1981 SC 1922 6 Rajkumar S. Adukia, Interpretation of Statutes,Also See http://www.caaa.in/Image/Interpretation%20of%20Statutes.pdf (last Accessed on 15th March at 6.30 P.M)

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aids to interpretation and bring all check and balances of internal & external aids to interpretation. RESEARCH QUESTION:1. Why internal aids prevail over external aids of interpretation? 2. Why Preamble is an intrinsic aid in the interpretation of an ambiguous Act? SOURCES Primary Sources: Judgements & Law Reports Secondary Sources: Books & Articles

ANALYSIS BY DELHI HIGH COURT Usually the interpretation has to be based on the section itself and even the intention of legislature can be best

found as recorded in

the section itself and only in case the language of section is not clear or ambiguous such internal or

external aids to interpretation of

statutes can be brought into.7 Therefore it is well settles that internal or external aids of interpretation are only necessary when there is an ambiguity, however usually they are not called for. The true end and design of interpretation is to gather the intent of the legislature from the most probable signs. 8I f courts are to allow a purposive interpretation; it follows that it may look for authority outside the specific words of the legislation. Where the authority is in the same statute, this is often referred to as a ‘Intrinsic 7 Honeywell International (India) (P) Ltd. v. Deputy Commissioner of Income Tax, [2008]26SOT503(Delhi)8.PUFENDORF,TR KENNETT, OF THE LAW OF NATURE AND NATIONS (4TH ED. 1729),P.535 9. 0 P.M. BAKSHI, INTERPRETATION OF STATUTES (2010 REPRINT) P.192

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authority’ or ‘Internal Aid’. Everything else will be extrinsic or ‘External Aid’.9 Therefore internal aids mean those materials which are available in the statute itself, though they may not be part of enactment. These internal aids include, long title, preamble, headings, marginal notes, illustrations, punctuation, proviso, schedule, transitory provisions, etc. When internal aids are not adequate, court has to take recourse to External aids. External Aids may be parliamentary material, historical background,

reports

of

a

committee

or

a

commission,

official

statement, dictionary meanings, foreign decisions, etc. 10 Even after the act is ed, the court has to interpret the act on the basis of informed basis by applying external aids if the language is ambiguous.11 It is a cardinal rule of interpretation that internal aids to construction should be given preference while interpreting a statute however where internal aids are not forthcoming, we can always have recourse to external aids to discover the object of the legislation. External aids are not ruled out. This is now a well settled principle of modern statutory construction.12 VARIOUS CASE LAWS WITCH HELPS IN THE DEVELOPMENT OF INTERNAL AIDS TO INTERPRETATION

9 1010. Kehar Singh v. State (Delhi .) AIR 1988 SC 1883 11. Doypack Systems Pvt. Ltd. V. Union of India, AIR 1988 SC 782. 12 . B. Prabhakar Rao and others v State of A.P. and others , AIR 1986 SC 120.

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Recently, again Supreme Court in Grasim Industries Ltd. V Collector of Customs, Bombay,

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has followed the same principle

and observed: Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for court to take upon itself the task of amending or altering the statutory provisions. Recently, in District Mining Officer and others v Tata Iron & Steel Co. and another,14 Supreme Court has observed: “It is also a cardinal principle of construction that external aids are brought in by widening the concept of context as including not only other enacting provisions of the same statute, but its preamble, the existing state of law, other statutes in pari materia and the mischief which the statute was intended to remedy.” In Wilson v. Secretary of state for trade and Industry,15 The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property rights. It was also argued that it was not possible to make a declaration of incompatibility in respect of matters arising from events before the coming into force of the 1998 Act. Held: Parliament cannot have intended that section 3(1) should have the effect of altering the parties’’ existing and obligations under the Consumer Credit Act. In this transition type of case, section 3(1) is 13 (2002)4 SCC 297 14 (2001)7 SCC 358. 15 UKHL 40, [2003] 3 WLR 568,

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inapplicable to the interpretation of the Consumer Credit Act, and the court had no jurisdiction to make a declaration of incompatibility. The court is not required to evaluate the effect of primary legislation in of convention rights and, where appropriate, to make a formal declaration of incompatibility. The court was entitled for the purpose of interpretation to look at ministerial statements but not generally at parliamentary debates to establish the purpose of the Act under consideration, and in doing so it was neither encroaching upon parliamentary privilege nor questioning the proceeding of parliament. HEADING Heading are of two kinds – one prefixed to the section and other prefixes to a group or set of section. Heading is to be regarded as giving the key to the interpretation and the heading may be treated as preambles to the provisions following them. Headings or titles which are prefixed to section can be referred to, in construing an act of the legislature.16 A heading is usually regarded as giving the key tom the interpretation of the clauses arranged under it, unless the wording is inconsistent with such interpretation.17And if there are any doubts in the interpretation of the words in a section, the headings certainly help the court to resolve that doubt. In Krishnaih V. State of A.P.18 PIL was filed by one Sri R. Krishnaiah, President of A.P Backward Classes Welfare Association writ of mandamus declaring the action of the Government of Andhra Pradesh in issuing Ordinance which found to be illegal, unconstitutional and without any legal or constitutional 16 Bhinka v Charan Singh, AIR 1959 SC 960 17 Qualter Hall & Co. Ltd v. Board of Trade, (1962) Ch 273 18 {A.P. AIR 2005 AP 10}

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authority has been sought. He has also sought for an interim direction restraining the government of Andhra Pradesh not to draw or spend any sums of money from the consolidated fund of the State or Contingency Fund of the State of Andhra Pradesh. It was held that heading prefixed to sections cannot control the plain words of the provision, only in the case of ambiguity or doubt, heading or sub-heading may be referred to as an aid in construing provision. MARGINAL NOTES Marginal notes are the notes which are inserted at the side of the sections in an Act and express the effect of the sections stated. Marginal notes appended to the Articles of the constitution have been to constitute part of the constitution as ed by the constituent assembly and therefore they have been made use of in construing the articles. BARBER v. SOMERSET COUNTY COUNCIL,19 A teacher sought damages from his employer after suffering a work related stress breakdown. Held: The definition of the work expected of him did not justify the demand placed upon him. The employer could have checked up on him. The employer could have checked up on him during his sickness absences, and given him . It did not do so. It was liable. It was further said that it is only when the contractual position between the parties is explored fully along with the relevant statutory framework that it would be possible to give appropriate content to the duty of the reasonable care upon which an employee claiming damages for negligent infliction of psychiatric injury at work would seek to rely. In R v. Pace & Rogers,20 19 [2004] 1 WLR 1089

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The Principle issue before the court of Appeal was the mental element required for an attempt to money launder. Thames Valley police sent undercover officers into scrap metal yards to sell power –cable, lead flashing, even a brass war memorial plaque all purportedly stolen. None of the items were in fact stolen. The defendants were convicted of an attempt to convert criminal property – section 327(1)(c). The Crown’s case was that though there could be no knowledge that the goods were stolen – since they were not – they could be a ‘suspicion’ which is the entire Act required. The Court of Appeal thought it odd that a man could not be guilty, under these circumstances, of actually laundering but could be guilty of attempting it (Para 64) and, following the case of R v Montilla,21 found that for an offence of converting criminal property to be made out of property had actually to be ‘criminal’. . In Aisha Potty v Returning Officer, Kollar District Panchayath,22 the High Court of Kerala held that the marginal note of Article 243 O of the constitution, namely, “Bar to interference by courts in electoral matters” can be relied upon for „interpretation of provision only if there is ambiguity, the words of the main provision itself lends key to its interpretation and the marginal note cannot control the same. Since neither this Article nor section 88 of the Kerala Panchayat Raj Act, 1994, there is no intention to oust jurisdiction of civil court from election matter. In K.P. Varghese v Income Tax Officer,23it was stated by the Supreme Court that while it is undoubtedly true that the marginal note 20 [2014] EWCA Crim 186 21 [2005] 1 Cr. App. R 26, 22 AIR 2002 Ker 89 23 AIR 1987 1 SC 1922

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to a section cannot be referred to for the purpose of construing the section, it can certainly be relied upon as indicating the drift of the section or to show what the section is dealing with. It cannot control the interpretation of the words of a section particularly when the language of the section is clear and unambiguous but, being part of the statute, it prima facie furnishes some clue as to the meaning and purpose of the section. Besides this a lot of cases show that in case of constitutional

matter,

the

marginal

note

can

be

taken

into

consideration to resolve the ambiguity in a statute. PROVISO Proviso can be interpreted in so many forms and there is no guideline in any judgement as to when a particular form is the proper form it all depends upon the context and objects. In Maha Prasad Singh v. Ramani Mohan Singh,24the respondent filed the suit in the subordinate judge courts and the appellant contended that the court had no jurisdiction to try the suit , the property subjected to mortgage was situated in Santhal Parganas and act 37 of 1855 provided that the whole istration of civil justice in that area became vested in the officer or officers appointed by the lieutenants governor of Bengal, the proviso of the enactment reads “Provided that all civil suits in which the matter in dispute shall exceed the value of Rs.1000 shall be tried and determine according to the general laws and regulations in the same manner as if this act has not been ed.” It was held that the interpretation of this proviso is a matter of great difficulty; two rival interpretations naturally suggest themselves. The one is that the officer exercising the jurisdiction shall do in accordance with the general law and regulations, so that the right of the parties are 24 AIR 1914 PC 140

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unaffected by the provision although they are to be pronounced upon by a different judicial tribunal. The other is that not only the laws that govern rights but also the procedure to enforce those rights is to remain unchanged, now it must be observed that this is a proviso and not an exception and accordingly taken into connection with the general language of the previous portion of the clause the former of these two interpretation is the one that commends itself to their lordship so that it must be construed as providing that the special officer or officers shall try such suits but in trying an determining them they shall observe the general laws and regulations obtaining in Bengal which but for the act would have applied equally in sonthal paranas. 25 In CIT vs Madurai Mills,26 the respondent held shares in three companies which went into voluntary liquidation and the liquidator made a distribution as a result of which the appellant got assets in lieu of cash , on the question whether the value of the assets was liable as capital gains , holding in favour of the respondent it was held “the appellant has invited our attention to the third proviso to Subsection (1) of Section 12B as originally enacted by the Income-tax and Excess Profit Tax (Amendment) Act wherein it was stated, inter alia, that any distribution of capital assets on the dissolution of a firm or other association of persons or on the liquidation of a company shall not for the purpose of Section 12B be treated as sale, exchange or transfer of capital assets. It is urged that the omission 1973 S.C./86 VII G--6 of such distribution of capital assets in the first proviso to Subsection (1) of Section 12B, as revived by the Finance (No. 3) Act of 1956, would show that the legislature wanted the distribution of capital assets on dissolution of a firm or other association of persons or the 25 VEPA.P.SARATHI, “INTERPRETATION OF STATUE” 5TH EDITION, 2009 26. Commissioner of Income-Tax, Madras V. Madurai Mills Co. Ltd. AIR 1973 SC 1357.

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liquidation of a company to be treated as sale, exchange or transfer. This contention, in an opinion, is not well founded. It appears to us that the cases of the distribution of capital assets on dissolution of a firm or other association of persons or liquidation of a company were mentioned in the third proviso under the earlier Act, as a matter of clarification to allay fears even though the language of Sub-section (1) of Section 12B was not intended to apply to such cases. Provisos, as mentioned on page 221 of Caries on Statute Laws, Sixth Edition, are often inserted to allay fears. A proviso is inserted to guard against the particular case of which a particular person is apprehensive, although the enactment was never intended to apply to his case or to any other similar case at all.” It is well settled that consideration stemming from legislative history must not be allowed to override the plain words of a statue , a proviso cannot be construe as enlarging the scope of an enactment when it can be fairly and properly construe without attributing to it that effect , further if the language of the enacting part of the statue is plain and unambiguous and does not contain the provisions which are said to occur in it , one cannot derive these provisions by implication of proviso. PREAMBLE The Preamble of the statue like the long title is a part of the act and is an issible aid to construction, the preamble express the scope, object and purpose of the act. It may be recite the ground and cause of making the statue, the evil sought to be remedied, or the doubts which may be intended to be settled in words of Sir John Nichol “It is to the preamble more specially we are to look for the reason or the spirit of every statue, rehearsing this as it ordinarily does, the evils sought to be remedied, or the doubts purported to be removed by the statue, and so evidencing, in best and most satisfactory manner, the

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object or intention of legislature in making or ing the statue itself.”27 -THE PREAMBLE OF THE CONSTITUTIONPreamble has the function to express certain facts. Seeing the preamble of Indian Constitution it is easily accessible the motive and object of the founding fathers that they wanted to make India into „Sovereign Socialist Secular, Democratic Republic. They wanted to secure justice, liberty, equality, fraternity to every citizen. The drafting committee of constituent assembly formulated the preamble in the light of objective resolution but restricted it to defining the essential feature of a new state and its basic socio political objectives. The preamble of constitution like any preamble of any statue furnishes the key to open the mind of the maker of the constitution more so because the constitution assembly took great pain in formulating it so that it may reflect the essential feature and basic objectives of the constitution. The constitution including preamble must be read as a whole and in case of doubt interpreted consistent with its basic structure to promote the great objectives stated in the preamble.28 The preamble as a whole can never be regarded as a source of substantive power or as a source of any prohibition or limitation. 29The preamble of the constitution amendment act can be used to understand the object of the amendment. 30 The majority judgement in 27 Brett v Brett, (1826) 162 ER 456, p. 458- 459 28 Keshavanada Bharti v State of Karnataka AIR 1973 SC 1461, Minerva Mills v Union of India AIR 1980 SC 1789 29 Indira Nehru Gandhi v. RajNarain AIR 1975 SC 2299, this has also been reiterated in Raghu nath Rao GanpathRao v. Union Of India AIR 1993 SC 1267 30 Raghu nath Rao GanpathRao v. Union Of India AIR 1993 SC 1267

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Keshavananda bharti31 and Minerava Mills32 strongly relied upon the preamble in reaching the conclusion that the power of amendment confer by article 368 was limited and did not enable parliament to alter the basic structure or framework of the constitution.33 By Sec. 2 of the constitution amendment act 1976 two amendments were made by the parliaments in the preamble wherein the words ‘sovereign,

democratic,

republic’

were

replaced

by

the

words

‘sovereign socialist secular democratic’ were substituted and secondly for the words unity of India the words unity and integrity of nations were substituted. These amendments were to be held valid in Minerva Mills’s case. The addition of the word socialist enables the court to lean more in favour of nationalisation and economic equality. 34 Lord Somervell has stated “The

principle

that

the

preamble

differs

in

their

scope

and

consequently in the weight, if any, which they may have on one side or the other of the dispute. There can be no rule. If in an act the preamble is general or brief statement of the main purpose, it, may well be of little, if any, value. The act may say to go beyond or in some respect fall short of the purpose so briefly stated.” EXTERNAL AIDS External aids to interpretation of statutes include Parliamentary History, Historical Facts and Surrounding Circumstances, Later

31 Supra Note 21 32 Ibid 33 Ibid 34 JUSTICE G.P. SINGH, “THE PRINCIPLE OF INTERPRETATION OF STATUE”11th Ed., (2008)

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Scientific

Inventions,

Reference

to

Other

Statutes

(pari

materia) & Use of Foreign Decisions. PARLIAMENTARY HISTORY The ingredients of Parliamentary History are the bill in its original form or the amendments considered during its progress in the Legislature, Speech of the minister who introduced the bill in the Parliament which is also referred to as Statements of Objects and Reasons, Reports of Parliamentary debates and resolutions ed by either House of the Parliament

and

the

Reports

submitted

different

Parliamentary

Committees. According to the traditional English view the Parliamentary History of a statute was not considered as an aid to construction. The Supreme Court of India in the beginning enunciated the rule of exclusion of Parliamentary History in the way it was traditionally enunciated by the English Courts but on many an occasion, the court used this aid in resolving questions of construction.35 SCIENTIFIC INVENTIONS The laws made in the past are applied in the present contemporary society in the light of changed social, political, legal and economic circumstances taking into consideration the advancement in science and technology. Statutes must be interpreted in accordance with the spirit of the Constitution of India even though the statutes were ed before independence of India or before the commencement of our Constitution. REFERENCE TO OTHER STATUTES Statutes must be read as a whole in order to understand the words in their context. Problem arises when a statute is not complete in itself 35 Refer Generally, Singh G.P., Principles of Statutory Interpretation, 221 (Wadhwa and Company, Nagpur, Tenth Edition, 2006)

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i.e. the words used in the statute are not explained clearly. Extension of this rule of context permits reference to other statutes in pari materia i.e. statutes dealing with the same subject matter or forming part of the same system. The meaning of the phrase pari materia was explained in an American Case, United Society v. Eagle Bank (1829) in the following words: “Statutes are in pari materia which relate to the same person or thing, or to the same class of persons or things. The word par must not be confounded with the word similes. It is used in opposition to it- intimating not likeness merely but identity. It is a phrase applicable to public statutes or general laws made at different times and in reference to the same subject”.36 USE OF FOREIGN DECISIONS Reference to decisions of the English Courts was a common practice in the istration of justice in pre independent India. The reason behind this was that the Modern Indian Legal System owes its origin to the English Common Law System. But after the commencement of the Constitution of India as a result of the incorporation of the Fundamental Rights, the Supreme Court of India gave more access to American precedents. It cannot, however, be doubted that knowledge of English law and precedents when the language of an Indian Act was not clear or express, has often been of valuable assistance. Speaking about Indian Codes Shri M.C.Setalvad has stated: “Where the language of the code was clear and applicable, no question of relying on English Authority would arise. But very often the general rule in the Indian Code was based on an English Principle and in such cases the Indian Courts frequently sought the assistance of English Decisions to the conclusions they reached. They could not otherwise for not only the 36 See., Sigh G.P., Principles of Statutory Interpretation, 275(Wadhwa and Company, Nagpur, Tenth Edition, 2006)

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general rules contained in the codes but some of the illustrations given to clarify the general rules were based on English decisions.” 37 Most acts contain exceptions to their main purpose on the meaning, on which such preamble would presumably, throw no light. On the other hand some general and most local acts have their limits set out in some details there may be cases in which a section read with a preamble may have different meaning from that which it would have if there were no preamble.38

CONCLUSION The Internal Aids to construction evolved over time as a very important and bankable source while interpreting any statute. The view earlier was to give it a very narrow scope however over time the jurisprudence of interpretation has developed so has the value of internal Aids, Even today Internal Aids to construction are given preference over external aids to construction. Of course it is true that when the meaning of a section is clear internal aids have no relevance and also there is no way that the meaning of a section could be changed due to the internal aids i.e., even if the headings (Internal Aid) of a section is contrary to the subject matter or content of a section and if the section is sufficiently clear, the heading cannot be used to nullify the meaning of 37 See., Setalvad M.C., The Common Law in India , 61 as cited in Singh G.P., Principles of Statutory Interpretations, 327(Wadhwa and Company, Nagpur, Tenth Edition, 2006). 38 (1957) 1 ALL ER 49 : 1957 AC 436 (HL)

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the section, still headings (internal aids) play a very important role. It is given a high preference over External aids. Also the 63rd Law commission and the 183rd Law Commission of India reports signify the importance attached to internal aids of construction. By virtue of the case laws, Law Commission reports (referred above) and the opinion of various authors it is now clear that internal aids to construction could be construed very important sources to know the intention of the legislature. The intention of the legislature could be ascertained through Headings, preamble, proviso, marginal notes, etc…Therefore our initial question as to whether internal aids to construction can be construed to represent/signify the intention of the legislature is answered in the positive.

BIBLIOGRAPHY

BOOKS REFERRED G.P.SINGH, “THE PRINCIPLE OF STATUTORY INTERPRETATION” 11TH ED. (2008)

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HALSUBURY’S LAWS DEEDS AND OTHER INSTRUMENTS VOL 13 (2007 REISSUE) MAXWELL, INTERPRETATION OF STATUTES, (ED.10,) P.M. BAKSHI, INTERPRETATION OF STATUTES (2010 REPRINT) PUFENDORF, TR KENNETT, OF THE LAW OF NATURE AND NATIONS (4TH ED. 1729) VEPA.P.SARATHI, “INTERPRETATION OF STATUE” 5TH EDITION, 2009 ARTICLES REFERRED Rajkumar S. Adukia, Interpretation of Statutes OTHER AUTHORITIES Law Commission of India, 183rd Report, ‘A continuum on the General Clauses Act, 1897 with special reference to the issibility and codification of external aids to interpretation of statutes’, Law Commission of India, 60th Report, Chapter 2, Para 2.2