Gauhati High Court
Registrar General Of Gauhati High Court vs The Union Of India & Ors on 16 September, 2013
Author: A.K.Goel
Bench: A.K. Goel, A.K. Goswami
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REGISTRAR GENERAL OF
GAUHATI HIGH COURT
REP. BY THE REGISTRAR
GENERAL, GUWAHATI, ASSAM.
THE UNION OF INDIA & ORS
::
REP. BY THE SECY, MINISTRY OF LAW, JUSTICE & COMPANY AFFAIRS,
DEPARTMENT OF JUSTICE, JAISALMER HOUSE, 26, MANSINGH ROAD,
NEW DELHI- 110 011.
BEFORE
HON'BLE MR. JUSTICE A.K. GOEL, THE CHIEF JUSTICE
THE HON'BLE MR. JUSTICE A.K. GOSWAMI
Case No : WP(C) 5873/2006
16/09/2013
(A.K.Goel. CJ)
(1) This order is in continuation of order dated 20.08.2013 on the issue of separation of Judiciary
from the Executive wherever such separation has still not been achieved, in the jurisdiction of this Court,
as per the mandate of Article 50 of the Constitution of India, as interpreted by full Bench of this Court in
SubhasisChakraborty vs. State of Meghalaya, 2002 (1) GLT 227. In the said judgment this Court noted
that in certain areas in the jurisdiction of this Court administration of justice was entrusted to Deputy
Commissioners, their Assistants and other village functionaries under Rules applicable for administration
of justice. Whatever be the historical reasons for judicial function not being entrusted to the Courts, it
was a mandate of the Constitution that "administration of justice be entrusted to judicial officers under
the control of the High Court in accordance with the provisions of Criminal Procedure Code and Civil
Procedure Code". It was observed that doing so was necessary to preserve the rule of law and for
protection of liberty of citizens. The rule of law and independence of judiciary are the basic features of
the Constitution.
(2) The districts of DimaHasao (earlier North Cachar Hills) and KarbiAnglong (earlier Mikir Hills) in
the State of Assam are tribal areas governed by Sixth Schedule to the Constitution and are not having
separation of judiciary from the executive. Administration of Justice Rules contain provisions for
administration of justice by executive officers. After the judgment in Subhasis Chakraborty (supra),
certain steps have been taken in the said two districts for separation of judiciary but courts have still not
been set up for want of infrastructure. Steps have also been taken in the States of Nagaland, Arunachal
Pradesh and Mizoram towards this end. Courts have been set up but certain legal issues have cropped
up which need to be addressed.
(3) In the order passed on the last date i.e. 20.8.2013, the issue taken up for consideration was
whether after enactment of the "Assam Administration of Justice in the KarbiAnglong District Act, 2009"
and the "Assam Administration of Justice in North-Cachar Hills District Act, 2009", Courts can start
functioning without any further legislation. In Para 9, it was observed :
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"Question which arises for consideration is whether after the above enactments, a Court can start
functioning in the tribal areas without the requirement of any further legislation, without affecting the
jurisdiction of autonomous council to set up courts for trial of matters arising out of laws framed under
Para 3 and where both the parties are concerned tribes.".
(4) The difficulty expressed by learned Advocate General was that in view of Para 4 of the Sixth
Schedule to the Constitution and inapplicability of the Bengal, Agra and Assam Civil Court Act, 1887 (Civil
Courts Act), setting up of Courts may not be permissible. On the other hand, learned Amicus Curiae had
submitted that no constitutional amendment was required as Para 4 of the Sixth Schedule envisaged
village councils/ courts in respect of laws enacted under Para 3 and when both the parties were
Scheduled Tribes in the said area. Setting up of Courts for all other matters was not inconsistent with
Para 4 of the Sixth Schedule. Reference in this connection was also made to the Constituent Assembly
Debates. It was further pointed out that after the judgment in SubhasisChakraborty (supra), even village
councils/ courts were subject to superintendence and control of this Court under Article 235 of the
Constitution. It was submitted that after the said judgment applicability of the Civil Courts Act was not
excluded. Since the Civil Courts Act, in terms, extended to the territories then administered by the
Lieutenant-Governor of the North-Western Provinces and the Chief Commissioner of Assam, bar against
applicability of the Federal legislation to the "excluded area" under Section 92 of the Govt. of India Act,
1935 was not applicable. Section 1(2) of the Civil Courts Act reads as follows:
"(2) It extends to the territories (which were on the 11th March, 1887) respectively administered by the
Lieutenant-Governor of the North-Western Provinces and the Chief Commissioner of Assam except such
portions of those territories as for the time being are not subject to the ordinary civil jurisdiction of the
High Court.".
(Emphasis added)
(5) It is clear that the Civil Courts Act, though a pre-constitution federal law, itself provided that the
same will apply to the area in question except the area which was not subject to jurisdiction of this
Court. Since admittedly this Court has jurisdiction even over territories where regular Courts had not
been set up, there is no area covered by the exception where Civil Courts Act may not apply once
regular courts are set up. In this view of the matter, rule that only post-constitution central laws applied
to the Sixth Schedule area laid down in State of Meghalaya vs. KaBrhyienKurkalang, (1972) 1 SCC 148was
not applicable. On consideration of the above, we concluded:-
"(14) We are prima facie of the view that there is no hurdle in setting up of Courts in the two districts.
The fact that District Council has jurisdiction under Para 4 of Sixth Schedule to set up Village Council/
Court for administering laws framed by it under Para 3 in respect of cases where both parties are
Scheduled Tribes does not in any manner affect setting up of Courts not falling within the purview of
Para 4. In view of Bengal, Agra and Assam Civil Courts Act, 1887 enabling setting up of Courts (which are
not within the purview of Para 4), no further legislation is necessary, nor amendment to the Constitution
is required for this purpose. If it is to be held that in respect of administration of justice not covered by
Paras 3 and 4 of the Schedule, Courts cannot be set up, the situation will become unworkable. Rules of
Administration of Justice stand repealed by the above two Acts. CPC and CrPC stand extended to the
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area. However, as suggested, we give time to learned Advocate General and learned Amicus Curiae to
consider further course of action."
(6) We have heard Sri D K Mishra, learned Senior Advocate as Amicus, Sri B. J. Talukdar, learned
Govt. Advocate, Assam, Sri A. K. Sarma, learned Addl. Advocate General, Mizoram, Sri A. M.
Buzarbaruah, learned Govt. Advocate, Arunachal Pradesh and Sri T. Ao, learned Govt. Advocate,
Nagaland.
(7) Learned Amicus has reiterated the submissions made earlier. Learned Addl. Advocate General,
Mizoram and learned Govt. Advocates for the States of Assam, Arunachal Pradesh and Nagland have
also not disputed the legal position as noted in the earlier order of this Court, quoted hereinabove.
Accordingly, the prima facie conclusion which was reached in the earlier order of this Court has to be
made absolute. While doing so, we may also proceed to discuss the issue in the context of States of
Arunachal Pradesh and Nagaland. As regards the State of Mizoram, a separate Civil Courts Act has
already been enacted. CPC and CrPC have also been made applicable. In respect of the said State, no
further discussion is necessary at this stage.
(8) We have already noted the enactments of the Assam Administration of Justice in the
KarbiAnglong District Act, 2009 and the Assam Administration of Justice in North-Cachar Hills District
Act, 2009 in the State of Assam. The Preamble to the Assam Administration of Justice in the
KarbiAnglong District Act, 2009 reads as follows:
"Whereas it is expedient to provide for the administration of justice both - Civil and Criminal in the
Karbi-Anglong District in the State of Assam to facilitate the trials of suits and cases by regular civil and
Criminal Courts in order to effect the Constitutional mandate of separation of Judiciary from Executive
pursuant to the directive of the Apex Court subject to provisions of the Sixth Schedule to the
Constitution of India and the matters connected therewith or incidental thereto.
Whereas it is expedient for bringing the Judiciary separated from the Executive to take away the existing
system of Administration of Justice by the Deputy Commissioner or his assistants within the scope and
ambit of the Sixth Schedule to the Constitution of India and to set up regular Civil and Criminal Courts
for discharge of Judicial functions. The Karbi-Anglong Areas being the Tribal areas contemplated under
Article-244 of the Constitution is covered by the Sixth Schedule to the Constitution. Therefore, the
regular Civil and Criminal Courts shall be made functional subject to provisions of Para-4 and 5 of the
Sixth Schedule to the Constitution.".
(9) Section 2 of the Act expressly extends the provisions of CPC and CrPC and Section 3 repeals the
Administration of Justice Rules to that extent. The said provisions are as follows:
"2. (1) On and from such date as the State Government may notify in this behalf in the Official Gazette
under the proviso to sub-section (3) of section 1 of the Code of Civil Procedure, 1908 and under the
proviso to sub-section (2) of section 1 of the Code of Criminal Procedure, 1973 respectively, the
provisions of the Code of Civil Procedure, 1908 and the Criminal Procedure Code, 1973 shall apply in the
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whole of the KarbiAnglong District for Administration of Justice-both Civil and Criminal subject to
provisions of the Sixth Schedule to the Constitution of India.
(2) The provisions of the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973 shall
apply mutatis mutandis to all proceedings, enquiry, investigation, trial and other incidental matters
connected with the conduct of Civil and Criminal cases subject to provisions of the Sixth Schedule.
(3) The powers and functions of the police under the existing system which have been prevailing in the
Karbi- Anglong District so far the suits and cases covered by this Act shall be exercised by the State
Police authorities in exercise of the powers conferred and functions assigned to them under the relevant
provisions of the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973.
3.(1) The provisions of the Rules for the Administration of Justice and police in the Sibsagar, Nowgaong
and Mikir Hills Tracts framed by the Governor under the powers vested in him by section 6 of the
Scheduled District Act, 1874 (ACT XIV of 1874), hereinafter called as the Rules, insofar they are
inconsistent with the provisions of this Act, shall stand repealed.
(2) Notwithstanding such repeal, - (i) anything done or any action taken or any case already disposed of
under the Rules shall be deemed to have been done or disposed of as of this Court has not come into
force.
(ii) suits, cases, appeal, application, proceedings or other business relating to both Civil and Criminal
Justice pending before the Court of Deputy Commissioner or the Assistants to Deputy Commissioner
shall stand transferred to the Competent Civil and Criminal Courts of the appropriate jurisdiction to be
established under the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973, as the
case may be, with effect from such date as may be notified by the State Government.
(iii) (a) In the trial of suites and cases arising out of any law in force in the Karbi-Anglong District, the
Civil Courts of competent jurisdiction shall be governed by the provisions of the Code of Civil Procedure,
1908 as amended.
(b) In the trial of Criminal cases in respect of offences punishable with death, transportation for life, or
imprisonment for a term of not less than 5 years under the Indian Penal Code or under any other laws
for the time being in force, the Courts of competent jurisdiction shall be governed by the Code of
Criminal Procedure, 1973 as amended.".
(10) We may note that the State of Assam has also issued a Notification dated 21.9.2012 to the
following effect:
"N.JDJ.(E)260/2010/24 : On the recommendation of the Hon'ble Gauhati High Court, Guwahati, the
Governor of Assam is pleased to establish the following Courts in the KarbiAnglong district of Assam, for
trial of Civil and Criminal cases within their respective local limits with effect from the date of taking
over charge by the Presiding Officers of these Courts.
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1.Court of District & Sessions Judge
2. Court of Civil Judge (Senior Division).
3. Court of Munsiff.
4. Court of Chief Judicial Magistrate,
5. Court of Additional Chief Judicial Magistrate.
6. Court of Sub-Divisional Judicial Magistrate.
7. Court of Judicial Magistrate First Class.
8. Court of Judicial Magistrate Second Class.".
(11) Further notifications have been issued sanctioning the supporting staff.
(12) In view of above, we do not see any difficulty in setting up of the Courts in the districts of Dima Hasao and Karbi Anglong without any further enactment or Civil Courts Act or amendment of the Constitution.
(13) We now take up the issue in relation to the State of Arunachal Pradesh.
The Arunachal Pradesh Judicial Service Rules, 2006 have been promulgated by the State of Arunachal Pradesh constituting judicial service. Selection, appointment and posting of officers has taken place against almost all the sanctioned posts. Courts have been duly constituted and are functioning. Vide Central Laws (Extension to Arunachal Pradesh) Act, 2007, CPC has been made applicable to the State of Arunachal Pradesh. Vide notification dated 24.10.2011, CrPC has been made applicable to the State of Arunachal Pradesh.
(14) Question for consideration is whether Civil Courts Act or the North East Frontier (Administration and Justice) Regulations, 1945 (the Regulations) would apply in relation to matters dealt with by the regular Courts manned by the members of Arunachal Pradesh Judicial Service or such courts have to be taken to have been constituted under the Civil Courts Act.
Admittedly, the State of Arunachal Pradesh is in no manner different from the districts of DimaHasao and KarbiAnglong in the State of Assam except that Administration of Justice Act on the pattern of 2009 Acts mentioned in Para 3 above have not been enacted. Nonetheless, after setting up of courts, it is not possible to hold that the regulations still hold the field even to the extent of conferment of jurisdiction on courts merely because the Regulations to that extent have not been expressly repealed. Once Civil Courts Act is held applicable, as we have held in respect of tribal districts of Assam, the Regulations will cease to operate to that extent.
(15) Thus, administration of justice by regularly constituted Courts manned by judicial officers of the cadre will function as per the Civil Courts Act and to that extent the North East Frontier (Administration and Justice) Regulations, 1945 conferring judicial powers on the executive will cease to operate. The doctrine of implied repeal will apply.
Page 6 of 13(16) In State of Orissa -vs- M.A. Tulloch & Co., AIR 1964 SC 1284, the Hon'ble Supreme Court, in Para 37, observed:
"A repeal may be brought about by repugnant legislation, without even any reference to the Act intended to be repealed, for once legislative competence to effect a repeal is posited, it matters little whether this is done expressly or inferentially or by the enactment of repugnant legislation.".
(17) We now take up the case of Nagaland. The Nagaland Judicial Service Rules, 2006 have been promulgated almost simultaneously with the Arunachal Pradesh Judicial Service Rules and judicial officers have since been appointed to man the courts. The Civil Courts Act has to be held applicable to the State of Nagaland also on the same analogy.
(18) Only further question which survives for consideration is whether in trial of cases by the Courts manned by the members of Nagaland Judicial Service, CrPC and CPC will apply though the said Codes have not been expressly extended as has been done under the 2009 Acts in the State of Assam and under notification dated 24.10.2011 in the State of Arunachal Pradesh and by a separate enactment in the State of Mizoram. Proviso to Section 1(2) of the CrPC reads as follows:-
"Provided that the provisions of this Code, other than those relating to Chapters VIII, X and XI thereof, shall not apply ---
(a) to the State of Nagaland, (b) to the tribal areas.
but the concerned State Government may, by notification, apply such provisions or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incidental or consequential modifications, as may be specified in the notification."
Proviso to Section 1(3) of the CPC reads as follows:
"Provided that the State Government concerned may, by notification in the Official Gazette, extend the provisions of this Code or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be with such supplemental, incidental or consequential modifications as may be specified in the notification."
(19) Learned Amicus submitted that exclusion of CrPC from the State of Nagaland and other tribal areas under proviso to Section 1(2) and of CPC under proviso to Section 1(3) thereof is only applicable to village councils/ courts or the customary courts or authorities exercising judicial powers under the administration of justice rules and not regular courts manned by members of Nagaland Judicial Service taken to have been constituted under the Civil Courts Act. The 2009 Acts expressly clarify what is otherwise implicit. He submitted that the above provisos have to be given purposive interpretation and not literal interpretation, to avoid absurdity. Since two interpretations are possible-one to read the proviso as applicable only to customary courts or courts presided over by executive officers under the administration of justice rules as well as to regular courts manned by judicial officers and the other as applicable only to the customary courts and courts presided by executive officers. Interpretation which promotes the intention of the legislature and policy of law has to be preferred. The purpose of the proviso has to be ascertained in the historical background of the laws applicable to the State of Nagaland and other tribal areas. In Stateof Nagaland vs. Ratan Singh, AIR 1967 SC 212, the history of Page 7 of 13 administration of justice in the State of Nagaland has been noticed. It was observed that the courts set up under the Administration of Justice Rules were manned by executive officers and such courts constituted a separate class not being at par with regular courts. Therefore, there was no violation of Articles 14 and 21 in CrPC not being applicable to the courts manned by executive officers. The legal position has undergone sea change after the said judgment. Separation of judiciary which is a directive principle under Article 50 of the Constitution has acquired the force of a mandate after the decision in KesavanandaBharati -vs-State of Kerala, AIR 1973 SC 1461, as held by the Full Bench of this Court in Subhasis Chakraborty (supra). Accordingly, judicial services have been created and regular courts have been set up. It will be absurd to attribute intention of excluding CrPC and CPC from proceedings before regular courts in these circumstances. By such interpretation, the purpose of law will be defeated and administration of justice by regular courts will be hampered. There will be no uniformity in the procedure followed in regular courts in the State of Nagaland and other States without there being any difference in the circumstances of functioning of these courts and other courts. Purpose of law will, thus, be advanced if the bar is taken to operate only to customary or village courts other than regular courts.
(20) Learned Govt. Advocate for the of Nagaland is unable to show any difficulty in the interpretation suggested by learned Amicus. He, however, reserves leave to approach this Court for any further clarification before the next date, if so advised. The State of Nagaland is at liberty to issue formal notification on the pattern of State of Arunachal Pradesh and other tribal states/ areas noted above or enactment on the pattern of the 2009 Act in tribal districts of Assam though legal position remains the same on due interpretation of provisos referred to above.
(21) We are conscious that under Article 371 A of the Constitution, no Act of the Parliament is to apply to (i) religious or social practices of the Nagas, (ii) Naga customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Naga customary law, (iv) ownership and transfer of land and its resources. However, we do not see any conflict in applicability of CPC and CrPC to proceedings in respect of matters to be tried by regular courts manned by members of judicial service.
(22) In Ratan Singh (supra), even after holding that the spirit and not letter of CrPC was applicable to the proceedings under Administration of Justice Rules by executive officers, it was observed:
"(36) We may, however, say that it would be better if, as soon as it is found to be expedient, all Rules are cancelled and one uniform set of Rules is made for the whole of this area.........".
(23) The above observation supports the submission of learned Amicus in the changed scenario when regular courts manned by judicial officers have taken over. Unless departure becomes necessary, it is desirable that a uniform set of procedure is applicable in all the courts in similar adjoining areas, manned by trained judicial officers. This principle will also be consistent with Articles 14 and 21 of the Constitution.
Page 8 of 13(24) We may now refer to some decisions which support the proposition that on courts being set up and being governed by Civil Courts Act the bar against applicability of CPC, CrPC in tribal areas cannot be read to refer to regular courts but only to other customary courts.
(25) In Hameedia Hardware Stores v. B. Mohan LalSowcar, (1988) 2 SCC 513, it was observed:
"........... It is no doubt true that the court while construing a provision should not easilyread into it words which have not been expressly enacted but having regard to the context in which a provision appears and the object of the statute in which the said provision is enacted the court should construe it in a harmonious way to make it meaningful.
11. In Seaford Court Estates Ltd. v. Asher, (1949) 2 All ER 155, 164, Lord Denning, L.J. said:
"[W]hen a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament ... and then he must supplement the written word so as to give 'force and life' to the intention of the legislature.... A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they should have straightened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
(26) InU.P. BhoodanYagnaSamiti, U.P. -vs- Braj Kishore &Ors., (1988) 4 SCC 274, the Hon'ble Supreme Court had observed :
"15. When we are dealing with the phrase "landless persons" these words are from English language and therefore I am reminded of whatLord Denning said about it. Lord Denning in "The Discipline of Law"
at p. 12 observed as under:
"Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this, or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament ..."
16. And it is clear that when one has to look to the intention of the legislature, one has to look to the circumstances under which the law was enacted. The preamble of the law, the mischief which was intended to be remedied by the enactment of the statute and in this context, Lord Denning, in the same book at p. 10, observed as under:
"At one time the Judges used to limit themselves to the bare reading of the statute itself - to go simply by the words, giving them their grammatical meaning, and that was all. That view was prevalent in the Page 9 of 13 19th century and still has some supporters today. But it is wrong in principle. The meaning for which we should seek is the meaning of the statute as it appears to those who have to obey it - and to those who have to advise them what to do about it; in short, to lawyers like yourselves. Now the statute does not come to such folk as if they were eccentrics cut off from all that is happening around them. The statute comes to them as men of affairs - who have their own feeling for the meaning of the words and know the reason why the Act was passed - just as if it had been fully set out in a preamble. So it has been held very rightly that you can inquire into the mischief which gave rise to the statute - to see what was the evil which it was sought to remedy."
(27) In Goodyear India Ltd. v. State of Haryana, (1990) 2 SCC 71, it was observed:
"11. In my opinion, the High Court correctly noted in the said decision that the provisions of constitutional change have to be construed, and such problems should not be viewed in narrow isolationism but on a much wider spectrum and the principles laid down in Heydon case, (1584) 3 Co Rep 7a are instructive. Hence, in a situation of this nature, it was just and proper to see what was the position before the Forty-sixth Amendment of the Constitution, and find out what was the mischief that was sought to be remedied and then discover the true rationale for such a remedy. In Black-Clawson International Ltd. v. PapierwerkeWaldhof-Aschaffenburg Ag., (1975) 1 All ER 810, Lord Reid observed as follows: (All ER p. 814) "One must first read the words in the context of the Act as a whole, but one is entitled to go beyond that. The general rule in construing any document is that one should put oneself 'in the shoes' of the maker or makers and take into account relevant facts known to them when the document was made. The same must apply to Acts of Parliament subject to one qualification. An Act is addressed to all the lieges and it would seem wrong to take into account anything that was not public knowledge at the time. That may be common knowledge at the time or it may be some published information which Parliament can be presumed to have had in mind.
It has always been said to be important to consider the 'mischief' which the Act was apparently intended to remedy. The word 'mischief' is traditional. I would expand it in this way. Inaddition to reading the Act you look at the facts presumed to be known to Parliament when the Bill which became the Act in question was before it, and you consider whether there is disclosed some unsatisfactory state of affairs which Parliament can properly be supposed to have intended to remedy by the Act."
(28) In Surjit Singh Kalra v. Union of India, (1991) 2 SCC 87, it was observed :
"19. True it is not permissible to read words in a statute which are not there, but "where the alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construction which deprives certain existing words of all meaning, it is permissible to supply the words" (CraiesStatute Law, 7th edn., p. 109). Similar are the observations in Hameedia Hardware Stores v. B. Mohan LalSowcar, (1988) 2 SCC 513 where it was observed that the court construing a provision should not easily read into it words which have not been expressly enacted but having regard to the context in which a provision appears and the object of the statute in which the said provision is enacted the court should construe it in a harmonious way to make it meaningful. An attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute. (See: SirajulHaq Khan v. Sunni Central Board of Waqf, AIR 1959 SC 198)"Page 10 of 13
(29) InUnion of India v. Hansoli Devi, (2002) 7 SCC 273, it was held :
"9............ The rule stated by Tindal, C.J. in Sussex Peerage case, (1844) 11 Cl& Fin 85still holds the field. The aforesaid rule is to the effect: (ER p. 1057) "If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver."
It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In Kirkness v. John Hudson & Co. Ltd., (1955) 2 All ER 345, Lord Reid pointed out as to what is the meaning of "ambiguous" and held that: (All ER p. 366 C-D) "A provision is not ambiguous merely because it contains a word which in different contexts is capable of different meanings. It would be hard to find anywhere a sentence of any length which does not contain such a word. A provision is, in my judgment, ambiguous only if it contains a word or phrase which in that particular context is capable of having more than one meaning."
It is no doubt true that if on going through the plain meaning of the language of statutes, it leads to anomalies, injustices and absurdities, then the court may look into the purpose for which the statute has been brought and would try to give a meaning, which would adhere to the purpose of the statute. PatanjaliSastri, C.J. in the case of Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC 369 had held that it is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute. In Quebec Railway, Light Heat & Power Co. Ltd. v. Vandry, AIR 1920 PC 181 it had been observed that the legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. Similarly, it is not permissible to add words to a statute which are not there unless on a literal construction being given a part of the statute becomes meaningless. But before any words are read to repair an omission in the Act, it should be possible to state with certainty that these words would have been inserted by the draftsman and approved by the legislature had their attention been drawn to the omission before the Bill had passed into a law. At times, the intention of the legislature is found to be clear but the unskilfulness of the draftsman in introducing certain words in the statute results in apparent ineffectiveness of the language and in such a situation, it may be permissible for the court to reject the surplus words, so as to make the statute effective."
(30) InChief Justice of A.P. v. L.V.A. Dixitulu, (1979) 2 SCC 34, the Hon'ble Supreme Court held :
"66. The primary principle of interpretation is that a Constitutional or statutory provision should be construed "according to the intent of they that made it" (Coke). Normally, such intent is gathered from the language of the provision. If the language or the phraseology employed by the legislation is precise Page 11 of 13 and plain and thus by itself proclaims the legislative intent in unequivocal terms, the same must be given effect to, regardless of the consequences that may follow. But if the words used in the provision are imprecise, protean or evocative or can reasonably bear meanings more than one, the Rule of strict grammatical construction ceases to be a sure guide to reach at the real legislative intent. In such a case, in order to ascertain the true meaning of the terms and phrases employed, it is legitimate for the Court to go beyond the and literal confines of the provision and to call in aid other well recognised rules of construction, such as its legislative/history, the basic scheme and framework of the statute as a whole, each portion throwing light on the rest, the purpose of the legislation, the object sought to be achieved, and the consequences that may flow from the adoption of one in preference to the other possible interpretation.
67. Where two alternative constructions are possible, the court must choose the one which will be in accord with the other parts of the statute and ensure its smooth, harmonious working, and eschew the other which leads to absurdity, confusion, or friction, contradiction and conflict between its various provisions, or undermines, or tends to defeat or destroy the basic scheme and purpose of the enactment. These canons of construction apply to the interpretation of our Constitution with greater force, because the Constitution is a living, integrated organism having a soul and consciousness of its own. The pulse beats emanating from the spinal cord of its basic framework can be felt all over its body, even in the extremities of its limbs. Constitutional exposition is not mere literary garniture, nor a mere exercise in grammar. As one of us (Chandrachud, J. as he then was) put it in KesavanandaBharati case:
[(1973) 4 SCC 225, 969 (para 2017)] "While interpreting words in a solemn document like the Constitution, one must look at them not in a school-masterly fashion, not with the cold eye of a lexicographer, but with the realization that they occur in 'a single complex instrument in which one part may throw light on the other' so that the construction must hold a balance between all its parts."
(31) In RakeshWadhawan v. Jagdamba Industrial Corpn., (2002) 5 SCC 440,it was held :
"24. It is a settled rule of construction that in case of ambiguity, the provision should be so read as would avoid hardship, inconvenience, injustice, absurdity and anomaly. Justice G.P. Singh in his Statutory Interpretation (2001 Edn.) states (at p. 113):
"In selecting out of different interpretations 'the court will adopt that which is just, reasonable and sensible rather than that which is none of those things' as it may be presumed 'that the legislature should have used the word in that interpretation which least offends our sense of justice'. If the grammatical construction leads to some absurdity or some repugnance or inconsistency with the rest of the instrument, it may be departed from so as to avoid that absurdity, and inconsistency. Similarly, a construction giving rise to anomalies should be avoided."
26. ..................... Salmond states in Jurisprudence (12th Edn., pp. 5-6):
"Suppose the legislator could draft rules that were absolutely clear in application: even so, he could not foresee every possible situation that might arise, and so, he could not anticipate how he, or society, would wish to react to it when it did arise. Too certain a rule would preclude the courts from dealing Page 12 of 13 with an unforeseen situation in the way they themselves, or society, might think best. As it is, legal uncertainty is counterbalanced by judicial flexibility."
27. We may with advantage quote a passage from Law in the Making by Sir Allen (7th Edn., 1964, at p.
308):
"'This Court', said Scrutton, L.J., 'sits to administer the law; not to make new law if there are cases not provided for.' 'It may be', said Lord Denning, M.R. in Attorney-General v. Butterworth15, QB at p. 719, 'that there is no authority to be found in the books, but if this be so all I can say is that the sooner we make one the better.' But how did the Master of the Rolls 'make' this authority? By reference to 'many pointers to be found in the books in favour of the view which I have expressed'."
Again at p. 521, the eminent jurist states:
"There is no doubt that some Judges will 'read into' a statute, under the guise of the 'implied intention' of the legislator, what justice and convenience require."
(32) It is, thus, clear that if legislative intent is to bar applicability of CPC and CrPC to customary courts or courts manned by executive officers, the said bar cannot be held to be applicable to regular courts. This interpretation will be harmonious with the functioning of regular courts under the Civil Courts Act and also customary or executive courts under the Administration of Justice Rules. Accordingly, we hold that the Bengal, Agra and Assam Civil Courts Act, 1887 is applicable to the districts of DimaHasao and KarbiAnglong in the State of Assam and the States of Arunachal Pradesh and Nagaland. The Administration of Justice Rules applicable in the State of Nagaland and the North East Frontier (Administration and Justice) Regulations, 1945 applicable in the State of Arunachal Pradesh will give way to the provisions of the Civil Courts Act to the extent of inconsistency in relation to functioning of Courts manned by members of cadre of judicial service.
(33) We further hold that CPC and CrPC are applicable to the regularly constituted civil and criminal Courts without in any manner affecting operation of Article 371A or the functioning of village, customary or any other courts other than the regularly constituted civil and criminal courts in the State of Nagaland manned by members of judicial service.
(34) We make it clear that this order will not affect validity of any orders already passed without following the provisions of CPC or CrPC on an understanding that CPC and CrPC were not applicable to the State of Nagaland.
(35) We also make it clear that the State of Nagaland will be at liberty to approach this Court for any clarification, before the next date. This will also not affect the power of the said State under proviso to Section 1(2) of the CrPC and 1(3)of CPC to issue an appropriate clarificatory notification or enacting its own Civil Courts Act (36) For any other issues arising in these matters, list again on 12.11.2013, as prayed.
Page 13 of 13(37) A report on the steps taken for improvement of infrastructure in terms of order of this Court dated 27.09.2012 may be submitted by the State of Assam before the next date.
(38) Copies of this order be given to learned counsel for the States of Assam, Nagaland and Arunachal Pradesh.