How to read Law(Akhil)

How to read Law(Akhil)

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  Presentation SEMINAR Number: -SN/CL/MNRS/002/2014 DATE: - 22nd of Feb, 2014 TOPIC: - How to Read & Interpret Law MNRS & ASSOCIATES Chartered Accountants By : Akhil Agarwal
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  Content  Abbreviation  Glossaryof Legal Terms  Para Starting Words  Rules of Interpretation of Law MNRS&ASSOCIATES CharteredAccountant
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  GOI – Governmentof India CG – Central Government SG – State Government DCA – Department of Company Affairs MCA – Ministry of Companies Affairs CLB – Company Law Board ROC – Registrar of Companies MD – Managing Director WTD – Whole Time Director GM – General Meeting NBFC – Non Banking Financial Companies SEBI – Security Exchange Board of India MNRS&ASSOCIATES CharteredAccountant Some Useful Abbreviation
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  o ab-initio: Fromthe Beginning o ad-hoc: for the particular purpose o generalia specialibus non derogant: General things do not derogate from special o ex-gratia: with out any legal obligation o ad idem: at the same point o in lieu of: instead of o ignorantia juris had excusat: Ignorance of Law is no excuse o ex-lege: according to Law o ad infinitum: without limit o caveat emptor: Let the buyer beware o infra: see below o malafide: in bad faith o mutatis mutandis: with necessary changes MNRS&ASSOCIATES CharteredAccountant Legal Terms
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  o In Personam:Directed toward a particular person o per pro: on behalf of another o Intra vires: within power of o Ultra vires: beyond the power o per se: by itself o prima facia: at First sight o Adjourn: to defer the hearing of a case another date o vice-versa: the order being reversed o pari passu: without preference o Injunctions: a order a court requiring a party not to do something or to do something. o Proviso: a clause started with “provided that” o Writ: a command issued by a court MNRS&ASSOCIATES CharteredAccountant
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  o Bequeath: todispose off personal property by will o De facto: in fact o nemo dat quo non habet: No one can give what does not belogn to him o Onus oprbandi: burden of proof o sans recourse: With out Liability o Qua: in capacity of o Suo motu: on its own motion o Supra: above MNRS&ASSOCIATES CharteredAccountant
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  Para Starting With…. Notwithstanding anything to the contrary a) This type of provision which overrides any other provision is called as non-obstante clause b)If one provision overrides another provision, it shall prevail over the later provision c) A provision may have over riding effect over - one or more provision of the same act - the entire act - any law for time being in force  Subject to: a) A provision made subject to another provision, shall not apply if it is inconsistent with later provision i.e. an over riding effect is MNRS&ASSOCIATES CharteredAccountant
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   Without prejudice a)Theword ‘without prejudice’ means without affecting. i.e. without affecting the thing which is prejudice against the provision. b) It may be used as follow - The word ‘without prejudice to the provision of the section …’ means that the provision specified therein shall also apply along with such provision - The word ‘without prejudice to the power of CLB, any order of CLB may provided for …’ means the power of CLB is not limited to the provided in the provision. MNRS&ASSOCIATES CharteredAccountant
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   Rules ofLiteral Construction Principal to Interpret Statute Applicability: i) First rule of interpretation. ii) Used when statute is clear, plain and unambiguous. iii) It is adopted, whatever is the consequences, where only one meaning is possible for a provision.Application: i) Court can not legislate or no reference can be made to legal decision. ii) No word shall be added, altered or modified. Omission are not to be inferred. Methodology: i) Read every word with its single literal meaning. ii) Gather the meaning of all words. iii) Derive a clear cut meaning of provision. MNRS&ASSOCIATES CharteredAccountant
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  Non applicability orlimitation: i) one word may have different or alternate meanings. ii) The intention of law is ignored. iii) Language of a statute can not be so precise to cover each and every possible situation  Rules of Reasonable construction Applicability: i) when ordinary meaning is absurd. ii) Where literal interpretation fails to achieve the purpose. Application: i) The interpretation must be according to the purpose, policy, object and spirit of the law. ii) Interpretation should give rational, fair and sensible meaning. MNRS&ASSOCIATES CharteredAccountant
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  Non applicability orlimitation: i) If literal interpretation is possible ii) If intention of the law can not be gathered precisely Methodology: i) Whether reasonable construction is required. ii) Discover the meaning of relevant portion. iii) Analyse if the provision can be applied as it is or to be molded to resolve the current issue. iv) If modulation is required, consider the intention of law and modify the meaning of the words. MNRS&ASSOCIATES CharteredAccountant
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  Application: i) Interpret provisionin a statute in accordance with the scheme and object of the act. ii) If action is required, inaction means default.  Rules of Beneficial construction/ Purposive Construction/ Hydeon’s rule/ Mischief Rule Applicability: i) Where words used in law is ambiguous. ii) When literal Interpretation fails to achieve its purpose. iii) When Extended meaning is required. e.g. Where object of a statute is public safety Words in a Penal Statute MNRS&ASSOCIATES CharteredAccountant
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  Non-Application/ Limitation: i) Whereliteral interpretation is possible ii) This rule is not applied in fiscal statute. Methodology: i) Consider the background - What was law before making act - What was mischief for which law did not provide any remedy - What is the remedy that the act has provided - What is the reason for the remedy/ intention of law maker. ii) Adopt the interpretation which will - Suppress the mischief - Advance the remedy MNRS&ASSOCIATES CharteredAccountant
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   Rules ofHarmonious Construction Applicability: This rule is applied if there is a conflict between two or more provision. The conflict may be - Within a section - Between two or more section of a statute - Between two or more section of different statute Application: i) As per this rule, one section shall not be allowed to defeat the other Provision. ii) An interpretation which reduces one of the provision to a dead letter is not harmonious interpretation. iii) Read the statute as whole and find out true meaning of each section, clause and word. MNRS&ASSOCIATES CharteredAccountant
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  Course of actionif not possible to harmonize: i) If one provision override another provision, it shall prevail over the later provision. ii) If a provision is made subject to another provision, the later provision shall prevail iii) If no provision is made subject to another provision, and no provision has an overriding effect then a) The provision enacted or amended later in point of time shall prevail b) The provision appearing later in the act shall prevail, if all Methodology: i) Harmonize the conflicting provision i.e. an attempt must be made to give full effect to all the provision. ii) if not possible, they should be so interpret that effect is given to all of them partially. i.e. one provision shall be so constructed as to exclude the other provision. MNRS&ASSOCIATES CharteredAccountant
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   Rules of‘EJUSDEM GENERIS’ Applicability: a) The specific word must constitute a class or category b) The general word follow the specific word c) there is nothing to show that a wider sense was intended. IF THERE IS A CONFLICTION OF PROVISION OF ANY LAW WITH ANY PROVISION OR INTENTION OF CONTITUTION OF INDIA THEN CONSTITUTION OF INDIA SHALL ALWAYS PREVAIL. e.g. Section 23 of Income tax act, deemed let out. In case of Deed or Agreement, Provision appearing before shall prevail. MNRS&ASSOCIATES CharteredAccountant
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  Non-applicability: a) The courthas discretion to apply or not to apply this rule b) The rule should be avoided where, it is departing from natural meaning of the words. Application: a) The term ‘ejusdem generis’ means ‘of the same class or species’ b) The meaning of general word shall be restricted. The general word shall be constructed with reference to the specific word.  Rules of ‘Expressio unius est exclusio alterius’ a) The term ‘Expressio unius est exclusio alterius’ means ‘Express mention of one thing implies the exclusion of the other’. b) If two or more things belonging to a particular class are mentioned, other members of that class are silently excluded. c) there is nothing to show that a wider sense was MNRS&ASSOCIATES CharteredAccountant
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   Rules of‘Noscitur a sociis’ a) The term ‘noscitur a sociis’ means ‘construction of associated word’ b) If two or more words which are capable of analogous (similar or parallel) meaning are grouped together, they should be understood in cognate sense c) A word shall be given the same meaning throughout the statute., except - where word is used in different sense e.g. use of plant with ‘plant and machinery’ or ‘plant and trees’. - where is would cause injustice or absurdity. MNRS&ASSOCIATES CharteredAccountant
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  MNRS&ASSOCIATES CharteredAccountant