Meaning

Oxford Definition : Something that is thought to be true or probable

Concise Law Dictionary Definition : A legal or factual assumption drawn from from the existence of certain facts.

A presumption is a conclusion drawn from the proof of facts or circumstances and stands as establishing facts until overcome by contrary proof.

(Section 79 of Indian Evidence Act is related to presumption.)

M. Narsinga Rao v. State of AP : ‘Presumption’ in law of evidence is a rule indicating the stage of shifting of the burden of proof from a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled.

Legal Presumption : It is a conclusion based upon a particular set of facts, combined with established laws, logic or reasoning.

It is a rule of law which allowing a court to assume a fact is true untill it is rebutted by the greater preponderance (prevalence) of the evidence against it.

Example : Presumption of death : If a person is continually absent and is not heard of being alive for a period of seven years, he or she may be presumed to be dead.

Presumption of innocence : Every accused is to be presumed innocent until proved to be guilty.

Presumption of legitimacy : A child born during lawful wedlock is presumed to be legitimate.

Presumption of facts and Presumption of law

Presumption of fact is based on logic, in connection with other facts. Whereas, Presumption of law is based on provisions of law. The position of Presumption of fact is uncertain, so we can say that, the court can ignore presumption of fact  The position of Presumption of law is certain, so we can say that, the court cannot ignore presumption law.

The Court can exercise its discretion while drawing presumptions of fact i.e. presumption of facts is discretionary presumption. Presumption of law is mandatory i.e. Court is bound to draw presumption of law.

Presumptions are sometimes categorized into two types: presumptions without basic facts, and presumptions with basic facts. An example of presumption without basic fact is presumption of innocence. An example of presumption with basic facts is the law says if a person has been missing for seven years or more (basic fact), that person is presumed dead.

Presumption that statutes are valid ( Presumption of constitutionality of a statute)

• It is well established that there is a presumption in favour of the constitutionality of every statute. i.e. there is a presumption that all the statutes are valid.
• It is equally well established that, a legislature does not intend to exceed its jurisdiction and general words in a statute are to be construed with reference to powers of the legislature which creates it. In other words, the legislature does not intended to enact a law which is ultra-vires the constitution.
• The presumption is always in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there is a clear transgression of the constitutional principle. (Chiranjit Lal Chaudhari v. UOI)
• There is a presumption in favour of the legality of a statute and the Courts will not declare an Act unconstitutional or ultra vires unless the repugnancy to the Constitution is clear and beyond doubt. If the language of the enactment is ambiguous.
• The Acts, whether passed by parliament or state legislature, should be within the constitutional boundaries and should not be enacted against the provisions and spirit of the Constitution
• If there are two interpretations, one that saves the Act from becoming unconstitutional and the other that makes the statute void, then in such case, the interpretation that renders the Act constitutional should be followed.
• This presumption is related to an application of the maxim.

‘ut res magis valeat quam preat.

• There is a presumption in favour of the constitutionality of an Act. One who alleges against the constitutionality of an enactment, must show that, there is a transgression of the constitutional boundaries.
• When the validity of the statute made by the competent legislature is challenged, the Court must presume that the statute is valid.
• If there is any doubt about the constitutional validity of any law, the benefit of doubt should be in favour of the constitutional validity of the Act.
• It is presumed that the legislature has expressed its intention in appropriate words. Every word used by the legislature, must be given its due importance.
• This rule is also applicable to bye-laws and constitutional amendments Acts
• When any enactment cannot be saved by construing it to be consistent with its constitutionality, then it is to be seen whether it can be saved partly. When a part of the Act is inconsistent with the higher law in the Constitution, then it can be saved partly, if the test of severability is satisfied.

State of Bihar v. Smt. Charusila Dasi :

It is now well settled that there is a general presumption that the legislature does not intend to exceed its jurisdiction, and it is a sound principle of construction that the Act of a sovereign Legislature should, if possible, receive such an interpretation as will make it operative and not inoperative.

Kheyerbari Tea company v. State of Assam :

It has been held that, if a law is shown to invade the freedom of trade under Article 301, the onus shifts to the State to satisfy that restrictions imposed are reasonable and in public interest within the meaning of Article 304(b).

Sunil Batra v. Delhi Administration :

Section 30(2) and section 56 of ‘The Prisons Act 1894 were challenged on the ground that they are violative of Article 14, 19 and 21 of the Constitution of India. Section 30(2) provides for the solitary confinement of a prisoner under the death sentence in a cell. Section 56 of the Act provides for the confinement of the prisoner in irons for safe custody. The Supreme Court upheld the validity of both these sections by construing them narrowly and held that both these sections are constitutionaly valid.

In 1992, SC case ‘ML Kamra v New India Assurance’, Justice K Ramaswamy said: “The court ought not to interpret the statutory provisions, unless compelled by their language, in such a manner as would involve its unconstitutionality, since the legislature of the rule making authority is presumed to enact a law which does not contravene or violate the constitutional provisions. Therefore, there is a presumption in favour of constitutionality of a legislation or statutory rule unless ex facie ( on the face ) it violates the fundamental rights guaranteed under

Part III of the Constitution. If the provisions of a law or the rule is construed in such a way as would make it consistent with the Constitution and another interpretation would render the provision or the rule unconstitutional, the Court would lean in favour of the former construction. ”

Presumption that Statutes are territorial (Presumption against extra-territorial operation of Statute)

The general rule for an Act of Parliament is that, it is applicable only within the territories of the country in which it is enacted, unless otherwise provided.

But, according to Article 245(2) of the Constitution of India,

No law made by Parliament shall be deemed to be invalid on the ground that it would have extra territorial operation.

Section 3 in The Indian Penal Code : Punishment of offences committed beyond, but which by law may be tried within, India.—Any person liable, by any  Indian law to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India.

Section 4 IPC states the extended operation of the Code on the acts committed outside the territorial boundaries of India.

Section 4: the Extension of Code to extraterritorial offences. The provisions of this act apply to any offence committed by-

*Any citizen of India in any place without and beyond India

*Any person on any ship or aircraft registered in India wherever it may be.

*Any person in any place without and beyond India committing offence targeting a computer resource located in India.

Further, Sec 4 of IPC also provides an explanation for this section as, -The word “offence” includes every act committed outside India which, if committed in India, would be punishable under this code;

The expression “computer resources” shall have the meaning assigned to in clause (k) of subsection (1) of the Information and Technology Act, 2000.

Various State Legislatures are empowered to enact a law for the whole of the State or any part of the State. The laws passed by the State Legislatures, are for the purpose of that State only. Such laws, in the absence of any territorial connection, cannot have any extra-territorial operation. But if there is any territorial nexus, then it will be having extra-territorial operation.

State of Bombay v. R.M.D. Chamarbangwala :

In order that, there is a territorial connection, two elements are to be considered 1. The nexus should be real and factual. 2. The liability under the Act sought to be enforced, must be related to that territorial connection.

Ajay Agarwala v. UOI : The SC held that, criminal conspiracy is an offence of a continuing nature and so acts of criminal conspiracy are committed at Dubai or Chandigarh are immaterial and thus the offence can be tried in India without obtaining permission of the Central Government as is required under section 188 of Code of Criminal Peocedure, 1973 for offences committed outside India but triable in India under section 4 of the IPC.

Jagir Kaur v. Jaswant Singh : Interpretation of the words ‘last resided’ in section 488(8) of the Code of Criminal Procedure, 1898 was involved. The SC held that these words mean last resided in the territory of India because the Code extends to the Whole of India.

K.K. Kochuni v. State of Madras : It was held by the SC that, a State Legislation can be successfully challenged on the ground of its extra-territorial operation because the power to make law having extra-territorial operation is conferred only on the Union Parliament by Article 245(2) of the Constitution. The laws made by the State Legislature generally have a limited extent within the boundries of the concerned State.

Commissioner of Income-tax, Kerala v. Malayalam Plantation :

The SC held that, sec.77 of the Estate Duty Act, 1953 did not operate extra-territorially. Under this provision a person who is required to pay the estate duty in respect of property of another person is authorised to sell that property of the other person to raise the amount of the estate duty. The SC held that this provision does not authorise the sale of the property of another person who is not domiciled in India.

Presumption against intending injustice

Whenever the language of the statute is capable of two constructions in which one would lead to injustice, then the Courts are of the view that such an interpretation could not have been intended by the legislature, unless such an intention is clearly expressed in the plain language.

The possibility of intending injustice in a construction should be real one and not hypothetical. If the possible injustice is purely hypothetical, then the Courts should not give that construction.

Presumption as to what is inconvenient or absurd: While determining the general object of the legislature, or the meaning of the language in any of the paragraphs of the Act, the construction which appears to be most in accord with the convenience, justice, and reason, shall be presumed to be the true intention.

The cardinal(chief/important) rule of interpretation of statutes is to construe its provisions literally and grammatically giving the words their ordinary and natural meaning. It is only when such construction leads to an obvious absurdity which the legislature cannot be supposed to have intended, that the Court may introduce words to give effect to the true intention of the legislature.

According to Maxwell “Where the language of the statute, in its ordinary meaning and grammatical construction, leads to manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence”.

Ishwar Singh Bindra v. State of UP : While it is not competent to a Judge to modify the language of an Act of Parliament in order to bring it in accordance with his own views as to what is right or reasonable, he can modify the language in order that the section to be interpreted makes good sense and does not lead to absurdity or manifest injustice.

Nanalal Zaver v. The Bombay Life Insurance Co. Ltd. :

It is only when the literal and grammatical construction of a statute leads to an obvious absurdity which the legislature cannot be supposed to have intended that, the Courts may introduce words to give effect to true intention of legislature. It is not any and every inconvenience that justifies the adoption of this rule of construction.

Presumption as to Jurisdiction

(Presumption against ouster of established Jurisdiction)

Jurisdiction : Oxford : The official power to make legal decisions.

Concise Law Dictionary : Jurisdiction is an authority or power which a man has to do justice in causes of complaint brought before him. The power to hear and determine the particular case involved. The right to adjudicate on a given point.

Jurisdiction may be local, pecuniary or with reference to the subject-matter of the suit.

Before a court can be held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass the orders sought for. It is not sufficient that, it has some jurisdiction in relation to the subject-matter of the suit. Its jurisdiction must include the power to hear and decide the questions at issue.

Examples : Criminal Jurisdiction is that, which exist for the punishments of offences.

Civil Jurisdiction is that which is possessed when the subject-matter is not of criminal nature.

Exclusive Jurisdiction is that which gives to one tribunal sole power to try a case.

Pecuniary Jurisdiction it is limited by the amount of value of the subject-matter of the suit.

Territorial jurisdiction: Under this type of jurisdiction, geographical limits of a court’s authority are clearly delineated and specified. It cannot exercise authority beyond that territorial/geographical limit.

Original and Appellate Jurisdiction : Original jurisdiction is jurisdiction conferred upon, or inherent in, a court in the first instance. Appellate jurisdiction is the power and authority conferred upon a superior court to re-hear and determine causes which have been tried in inferior courts.

The Supreme Court in India has three types of jurisdictions – original, appellate and advisory as provided in Articles 131, 133 – 136 and 143 respectively of the Indian Constitution.

Articles 225 and 226 of the Constitution of India are related to the Jurisdiction of High Courts.

• There is a strong presumption that a statute should not be given such an interpretation as takes away the jurisdiction of the Courts unless the language of the statute unambiguously states that.

• The basis of this presumption is that, the Courts should be accessible to all those who want justice and the status quo(वर्तमान-स्तिथि) about the state of law should be maintain.
• The provisions excluding jurisdiction of civil courts and provisions conferring jurisdiction on authorities other than civil courts are strictly construed.
• There is a strong presumption that civil courts have jurisdiction to decide all questions of civil nature. Therefore the exclusion of jurisdiction of civil courts should not be readily inferred and such exclusion must either be ‘explicitly expressed or clearly implied’. For a court which would otherwise have jurisdiction in respect of the subject-matter concerned, ouster cannot be implied. Ouster must be express. (Bhatia International v. Bulk Trading S.A. & Anr.)
• The existence of jurisdiction in civil courts to decide questions of civil nature is the general rule and exclusion is an exception to this rule. Therefore the burden of proof to show that jurisdiction is excluded in any particular case is on the party who raises such a contention. (Ramayya v. Laxminarayan).
• The civil courts are also courts of general jurisdiction and people have a right, unless expressly or impliedly barred, to insist for free access to the courts of general jurisdiction of the State. On this basis only the rule is made that exclusion of jurisdiction of civil courts is not to be readily inferred.
• Criminal courts are also courts of general jurisdiction and exclusion of ordinary criminal courts can be brought about by setting up courts of limited jurisdiction in respect of limited field, but only if the vesting and the exercise of that limited jurisdiction is clear and operative and there is an adequate machinery for the exercise of limited jurisdiction

( Bhimsen v. State of UP)

• It has been held that like other rules of construction, the rule against exclusion of jurisdiction of courts is attracted only where two are more reasonably possible constructions are open in the language of the statute and not where the legislative intent is plain and manifest to oust the jurisdiction

(Kihota Hollohan v. Zachilhu)

• Since jurisdiction is bestowed in a court by a legislation, legislation alone can take away the same. The parties to a dispute can neither create by mutual consent if in fact a court is vested with jurisdiction in the matter.

Mutual consent of the parties, however, can create an arbitrator and the arbitrator may be a judge also.

• In India, the jurisdiction to the Supreme Court and the High Courts have been conferred by the Constitution. Therefore, curtailment of the same is not possible except by an amendment to the relevant provisions of the Constitution. If such an exercise though unlikely, ia at all taken up, question of judicial review of such an amending power may crop up.
• Suits may be barred impliedly when they are barred by general principles of law as when they are barred being against the Public Policy or State Policy. For example, suit by a witness to recover money agreed to be paid to him for giving evidence in a Court of Law and suits based on illegal or immoral contracts. Kapur,J. has observed in Union of India v. Ram Chand – “The principle underlying is that a court ought not to give permissions in matters which are injurious to and against the public policy.”
• A decree passed by a court without jurisdiction is a nullity and the validity thereof can be challenged at any stage of the proceedings, in execution proceedings or even in collateral proceedings.
• Even where jurisdiction of a civil court is barred, it can still decide whether the provisions of an Act have been complied with or whether an order was passed de hors (without) the provisions of law.

In Abdul Waheed Khan v. Bhawani, the apex court has observed that every presumption should be made in favour of the jurisdiction of a civil court and the provision of exclusion of jurisdiction, if any, shall be strictly construed. If there is any doubt regarding ousting of jurisdiction of a civil court, the court shall lean to an interpretation which would maintain the jurisdiction. The burden of proof is on the party who seek to oust the jurisdiction of a civil court.

In the case of Dhulabhai v. State of Madhya pradesh , Justice Hidayatullah summarised the following principles relating to exclusion of jurisdiction of civil courts :
(1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts’ jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. But where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment(intention of law) becomes necessary and the result of the inquiry may be decisive.

(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.

(4) When a provision is already declared unconstitutional. Or the constitutionality of any provision is to be challenged, a suit is open.
(5) Where the particular Act contains no machinery for refund’ of tax collected in excess of constitutional limits or illegally collected a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions mentioned above apply.

Bhimji v. Dundappa : The SC held that, where exclusive jurisdiction to try certain matters are given to the revenue court excluding totally the jurisdiction of the civil court, the civil court has no option but to transfer such matters for adjudication to the revenue court.

Retrospective Operation of Statute ( Prospective operation of Statute )

• It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation.
• The well known rule against retrospective operation of statutes is based upopn the presumption that, “the legislature does not intend what is unjust.”
• The maxim of law is ‘Nova constitution futuris forman imponere debet non praeteritis’ which means that, ‘a new law ought to regulate what is to follow, not the past.’
• Retrospective means looking backward. The best example of retrospective law are those in which the date of commencement is earlier than enactment.
• In words of Cooley, a retrospective law is one which reaches back to, and gives to a prior transaction some different legal effect from, that which is had under the law when it took place.
• Restrospective operation is generally not given to such statutes as would lay new duties or attach new disabilities in respect of transaction already past or would interfere with obligation under a contract or would interfere with vested rights or in which legality or past transaction would be involved.

In contrast to this, statutes dealing with merely matters of procedure are presumed to be retrospective, unless such a construction is textually inadmissible

(Gurbachan Singh v. Satpal Singh)

The basis of this principle is that, the rights will not change by changing the procedure and accordingly, retrospective operation is permissible in matters of procedures

• In words of Lord Denning : The Rule that an Act of Parliament is not to be given retrospective effect applies only to statutes which affects vested rights. It does not apply to statutes which only alter the form of procedure or the admissibility of evidence, or the effect which the court give to evidence.
• The Parliament or State Legislature, subject to certain constitutional restrictions, can legislate prospectively or retrospectively. It is, however, a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective effect.
• Those statutes which regulate the succession are not applicable to already opened successions because the effect of its application will be to divest(remove) the estate from persons in whom it had become vested prior to coming into force of the new statute.

In Kotturuswami v. veerava : Section 14 of the Hindu Succession Act, 1956 was considered which enacts that, ‘any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner’. On these terms the section is retrospective, but the Hindu female should be possessed of the estate at the time the Act came into force.

• Statutes of limitation do not create any right but prescribes the time period within which the suit can be brought. When this time period gets over, right of suit comes to an end.

Therefore if a right of action had become barred under an earlier Limitation Act, it cannot be revived by a later Limitation Act even if it provides a larger period of limitation then that provided by the earlier Act.

T. Kaliamurthi & Anr. V. Five Gori Thikkal Wakf :

No statute should be construed to be retrospective unless the language requires so, procedural enactments are exception to this general rule and exception to this exception is the case where the right of suit is already time-barred.

• Fiscal legislation imposing liability is generally governed by the normal presumption that it is not retrospective.

In Banarsidas v ITO, Distt IV, Calcutta it was held that a provision which in terms is retrospective and has the effect of opening up liability which had become barred by lapse of time, will be subject to the rule of strict construction.

• Penal statutes are generally considered prospective.

W Ramnad Electric Distribution Co. Ltd v. State of Madras :

Those penal statutes which create offences or which have the effect of increasing penalties for existing offences will only be prospective by reason of the Constitutional restriction imposed by Article 20 of the Constitution.

Cases :

ESIC v. Dwarka Nath Bhargava : Section 45B was added in 1968 in ESI Act, 1948. By this provision the ESIC could recover arrears or contribution from the employers as arrears of land revenue. The SC held that, the provision is procedural in nature and as such is applicable to arrears which fell due before the amendment came into force in 1968.

In Brij Mohan Das Laxman Das v. Commissioner of Income Tax, the SC observed that, explanation 2 to section 40 of the Income-Tax Act, 1961 was added in 1982 with a view to clarify the law as the courts were giving different interpretations to section 40 and as such it is a declaratory provision deserving retrospective effect.

Sudhir G Angur v. M. Sanjeev : The SC held that, it is well settled that, all procedural laws are retrospective unless the legislature states to the contrary. Procedural laws in force must be applied at the date when the suit or proceeding comes on for trial or disposal. A Court is bound to take notice of the change in the law and is bound to administer the law as it was when the suit came up for hearing. If a Court has jurisdiction to try a suit, when it comes for disposal, it then cannot refuse to assume jurisdiction by reason of the fact that it had no jurisdiction to entertain it at the date when it was instituted.

Punjab Traders v. State of Punjab : The SC observed that, the meaning of an existing provision in an Act is already implicit (inherent) but the same is subsequently clarified by an amending statute, the subsequent amending statute would be seen as a law already in existence.

More Law Notes on Interpretation of Statutes –

• Interpretation of Statutes Notes – Strict Construction of Penal & Taxing Statutes
• Interpretation of Statutes Notes – Mandatory and Directory Enactments
• Interpretation of Statutes Notes – Constitutional Doctrines
• Interpretation of Statutes Notes – Repeal of Statutes