Contemporanea Expositio

CHAPTER I

INTRODUCTION AND BASIC MEANING

Contemporanea Expositio

The doctrine/rule/maxim of Contemporanea Expositio holds that a construction which has

been long adopted and publically acted upon, will not be lightly disturbed by the courts.1

Contemporanea expositio est optima et fortissinia in lege: meaning Contemporaneous

exposition is the best and strongest in law.2 Contemporaneous Construction is the

construction placed upon the statute by its contemporaries at the time of its enactment

and soon thereafter.

The rule of construction by reference to Contemporanea Expositio is a well established rule

for interpreting a statute by reference to the exposition it has received in the past from

contemporary authority, though it is considered inapplicable, even in case of contemporary

statutes when the language of such statute is plain and unambiguous.3

The rule is described well in Crawford on Statutory Construction4 where it is stated in para

219 that “ administrative construction (i.e. contemporaneous construction placed by

administrative executive officers charged with executing a statute) generally should be

clearly wrong before it is overturned. Such a construction commonly referred to as practical

construction, although non controlling (non-binding) is never the less entitled to considerable

weight; it is highly persuasive”.5

1 R. c. Cutbush (1867) LR 2 QB 379 ; 36 LJMC 70; Migneault v. Malo (1872) LR 4 PC 123; Gorham v. Bishop of Exter (1850) 15 QB 52: 19 LJQB 279: 117 ER 3772 Black’s Law Dictionary3 Municipal Corporation Chandigarh v. M/S Shantikunj Investment Pvt. Ltd. AIR 2006 SC 1270: 2006 AIR SCW 1169 at p. 1183; J.K. Cotton Spinning and Weaving Mills Ltd. V. Union of India AIR 1988 SC 191 4 G.P.Singh (1904 Edn.)5 See K.p Verghese v ITO, Erunakulam, AIR 1981 SC 1922 at p. 1932. Baleshwar Bagarti v. Bhagirathi Das (1908) ILR 35 Cal 701; Desh Bandhu Gupta and Co. v. Delhi Stock Exchange Ltd. AIR 1979 SC 1049; Mathura Mohan Saha v. Ramkumar Saha AIR 1916 Cal. 136

The Validity of this rule was also recognized domestically in Baleshwar Bagarti v. Bhagirathi

Das6, where Mukherjee J. Stated the rule in the following terms:

“ It is well settled principle of interpretation that courts in construing a statute will give mich

weight to the interpretation put upon it at the time of its enactment and since by those whose

duty it has been to construe, execute and apply”

It is generally accepted under this maxim that the court can reply upon for construction of a

statute, whenever the terms of such statute are vague and ambiguous, upon the meaning that

was given to said statute by its contemporaries because such meaning is more likely to reveal

the true meaning than the meaning given to it by men of a different age or generation. And

the meaning given by contemporaries can be revealed with high certainty by resort to

common usage and practice under the statute, which has crystallized over a considerable

period. Hence resort may also be made to the usage or course of conduct based upon a certain

construction of the statute, soon after its enactment and acquiesced in byt he courts and the

legislature for a long period of time.

Upon the enactment of the statute the history of how it has been enacted forms a part of

Contemporanea Expositio and may also be used to throw light upon legislative intention.

Also under the doctrine, as a result of obvious implication the later history may be used to

assert how the enactment has been regarded in the light of development from time to time.7

6 1908 ILR 35 Cal 7017 B. Prabhakar Raov. State of Andhra Pradesh AIR 1986 SC 210; (1985) Supp 2 SCR 573, Referred in Sub- Committee of Judicial Accountability v. Union of India AIR 1992 SC 320.

CHAPTER II

RATIONALE OF CONTEMPORANEA EXPOSITIO

One of the strongest arguments in the favour of Contemporanea Expositio is that the Judges

who lived at or about that time when the statutes were made were best able to judge the

intentions of the makers at that time.8

In case of ancient or contemporary statutes there may be great difficulty in the interpretation

or construing the meaning of said document or statute, and the meanings of the words

employed, and in that case evidence of usage is admissible will show what the meaning

attached to the document was after its execution by those interested in its interpretation.

There is a probability that at least some of these persons would have insisted on the correct

interpretation of the statute and if a certain interpretation has been adopted and acquiesced in

for a long period of time this affords a huge probability of its correctness.

Referring to the Magna Carta, Lord Coke Said “ This and the like were the forms of an

ancient acts and Graunts, and the ancient Act and graunts must be construed and taken as the

law was holden at that time when they were made”.9 A uniform notorious practice continued

under an old statute and inaction of the legislature to amend the same are important factors to

show that the practice so followed was based on correct understanding of the law . “

Communis opinion”, Lord Ellenborough said: is evidence of what the law is”.10 “There would

be no safety for property or liberty if it could be successfully contended that all lawyers and

statesmen have been mistaken for centuries as to the true meaning of an old act of the

Parliament.”- Lord Campbell.11

When the practice receives judicial or legislative approval it gains additional weight and is to

be more respected. As stated by Martin B “ In construing old statutes it has been usual to pay

8 Morgan v. Crawshay (1871) LR 5 HL 304: 40 LMJC 202: 24 LT 889:20 WR 554, Governors of Campbell College v. Commr. Of Valuation 1964 1 WLR 912: (1964) 2 ALL ER 705 (HL) 9 Senior Electric Inspector v. Laxminarayan Chopra AIR 1962 SC 159, p. 162 :1962 (3) SCR 14610 Isherwood v. Oldknow (1815) 3 M & S 382, p 196;Bastin v. Davies (1950) 1 ALL ER 1095 p. 109811 Gorham v. Exeter (BP) (1850) 15 QB 52 p. 74 117 ALL ER 377 p. 386

great attention to the construction out upon them by the judges who lived at or soon after the

time they were made because they were best able to judge of the intention of the makers at

the time.”12

The doctrine of stare decisis may also be applied when the law is settled in a State for over

100 years by considered view of the High Court of that State.13 As to legislative approval to a

departmental practice LORD MACHNAGHTEN said,  “When you find legislation following

a continuous practice repeating the very words on which that practice was founded, it may

perhaps fairly be inferred that the Legislature in re-enacting the statute intended those words

to be understood in their received meaning. And perhaps it might be argued that the inference

grows stronger with each successive re-enactment.”14

In Craies on “Statute Law”15 it is stated that : “ when a particular form of legislative

enactment which has received authoritative interpretation, whether but Judicial Decision or

by a long course of practice, is adopted in the framing of a later statute it is a sound rule of

construction to hold that the words so adopted were intended by the legislature to bear the

meaning which had been so put upon them. Conversely if we find that the language employed

by the legislature intended he earlier statutes on a particular subject has been departed from in

subsequent statute relating to the same subject, it is generally, but not always a fair

presumption that the alteration in the language used in the subsequent statute was intentional”

In Odgers’ construction of deeds and statutes 16 it has been further stated “ in the construction

of ancient grants and deeds there is no better way of construing them than by usage:

Contemporanea Expositiois is the best way to go by”17 “In construing such an instrument you

may look to the usage to see in what sense the words were used at that time.” 18

“Contemporaneous usage is indeed a strong ground for the interpretation of doubtful words

and expressions.”19

12 Supra at 8 13 Ram Adhar Singh vs. Bansi, (1987) 2 SCC 482, p.485.14 Commissioner for Special Purposes of Income-tax vs. Pemsel, (1891) AC 531, pp. 590, 591 (HL).15 6th ed. 1963, pp 139, 141 Referred to in Basti Ram v. Ghewarchand AIR 1979 Raj 148 at pp. 155-15616 See 1967 ed., Third Indian Reprint, 2003 , p. 12217 Att. Gen. v. Parker (1747) 3 ATK 57618 Drummond v. Att. Gen for Ireland (1849) 2 HLC 837 19 Ibid.

According to Maxwell20, “ It is said that the best exposition of a statute or any other

document is that which it has received form contemporary authority. Where this has been

given by enactment of judicial decision it is of course to be accepted as conclusive”

The rationale behind the rule of Contemporanea Expositio has been well explained in the

case of Desh Bandhu Gupta and Co. V. Delhi Stock Exchange Association Ltd.21 It is said in

this case ‘The principle of contemporanea expositio (interpreting a statute or any other

document by reference to the exposition it has received from contemporary authority) can be

invoked though the same will not always be decisive of the question of construction.3 In

Crawford on Statutory Construction,4 it has been stated that administrative construction (i.e.,

contemporaneous construction placed by administrative or executive officers charged with

executing a statute) generally should be clearly wrong before it is overturned; such a

construction, commonly referred to as practical construction, although not controlling, is

nevertheless entitled to considerable weight; it is highly persuasive.’

This case further took the help of the cases of Baleshwar Bagarti v. Bhagirathi Dass22 which

reiterated a principle stated by Mookerjee J., in Mathura Mohan Saha v. Ram Kumar Saha23

as :

‘It is well-settled principle of interpretation that Courts in construing a statute will give much

weight to the interpretation put upon it, at the time of its enactment and since, by those whose

duty it has been to construe, execute and apply it-I do not suggest for a moment that such

interpretation has by any means a controlling effect upon the Courts; such interpretation may,

if occasion arises, have to be disregarded for cogent and persuasive reasons, and in a clear

case of error, a Court would

without hesitation refuse to follow such construction'.

The Rationale behind the rule has also been explained very well in an English case of R. vs.

Casement24where it was said amongst other things that the meaning publicly given by

contemporary or long professional usage is presumed to be true one, even where the language

has etymologically or popularly a different meaning. It is obvious that the language of a

statute must be understood in the sense in which it was understood when it was passed, and

20 Interpretation of Statutes, 12th ed. P. 26421 AIR 1979 SC 1049; (1979) 4 SCC 565, reffered in Kuldip Nayar v. Union of India, Air 2006 SC 3127 at p. 316022 ILR 35 Cal 701 at p. 71323 AIR 1916 Cal 136 : ILR 43 Cal 79024 (1917) I.K.B.98

those who lived at or near that time when it was passed may reasonably be supposed to be

better acquainted than their descendants with the circumstances to which it had relation, as

well as with the sense then attached to legislative expressions. Moreover, the long

acquiescence of the legislature in the interpretation put upon its enactment by notorious

practice may, perhaps be regarded as some sanction and approval of it

CHAPTER III

SCOPE OF THE MAXIM

Scope of the Maxim

Even though the principle of Contemporanea Expositio has a very wide application in the

field of interpretation of statutes, but does not have universal application. Each case must be

considered on its own facts. A construction practice having force of law and being followed

for a number of years, no doubt is entitled to respect in terms of persuasive and sometimes

binding value, but its application per-se is not immune to Judicial Review.25 In fact the

application of the rule of Contemporanea Expositio as has been mentioned earlier is limited

only to cases:

1. Where the statute in question is an old statute and not a modern statute26

2. Where the terms of said statute are not clear and are unambiguous

It is also of importance to note that the Rationale behind the application of the rule as has

been elucidated in the previous chapter is also based on the fulfilment and the strict limited

application of the rule only in the cases described above.

Subject to the use made of contemporary official statements and statutory instruments the

principle of Contemporanea Expositio is inapplicable to modern statutes.27 Even of the people

who made the statute interpreted it in a certain way the court cannot be stopped form giving a

different interpretation which might actually be the true interpretation of the statute.28 The

doctrine according to Lord Upjohn “ is confined to the construction of ambiguous language

used in very old statutes where indeed the language itself have had a different meaning in

those days.29

25 Bombay Dyeing and Mfg. Co. Ltd., Bombay v. Bombay Environmental Action Group, AIR 2006 SC 1289 at p. 153426 Clyde Navigation Trustees v. Laird(1883) 8 AC 658, Assheton Smith v. Owen (1906) 1 Ch 179; Goldsmiths’ Co. v. Wyatt (1907) 1 KB 95, Senior Electric Inspector v. Laxminarayan Chopra AIR 1962 SC 159, Raja Ram Jaiswal v. State of Bihar AIR 1964 SC 828; J.K.Cotton Spinning and Weaving Mills Ltd. v. Union of India AIR 1988SC 191’ Doypack Systems Pvt. Ltd. v. Union of India AIR 1988 SC 78227 Supra at 2628 Punjab Traders v. State of Punjab AIR 1990 SC 230029 Governors of Campbell College v. Commr. Of Valuation (1964) 1 ALL ER 705

In a modern progressive society it would be unreasonable to confine the intention of the

legislature to the meaning attributable to the word used at the time the law was made

and unless contrary intention appears, an interpretation should be given to the words

used to take in new facts and situations if the words are capable of comprehending

them.30

Lord Watson stated the rule in the following words : “ In my opinion such usage has been

termed Contemporanea Expositio is of no value in construing a British statute of the year

1858. When there are ambiguous statements in an act passed one or two centuries ago it may

be legitimate to refer to the construction put upon their expression throughout a long course

of years by the unanimous consent of all parties interested as exercising what must

presumably have been the intention of the legislature at the remote period. But i bound to

construe a recent statute according to its own terms.”31

It is respectfully submitted that even if the persons who dealt with the Act understood it in a

particular manner, that does not prevent the Court in giving to the Act its true construction.32

The doctrine Contemporanea expositio is confined to the construction of ambiguous language

used in very old statutes where in fact the language itself had a rather different meaning in

those days. The Supreme Court has refused to apply the principle of Contemporanea

expositio to the Telegraph Act, 188533, and the Evidence Act, 187234. However, this doctrine

was applied in construing the Bombay Municipal Corporation Act, 1880.35 The principle was

also referred to in construing section 21 of the Indian Penal Code 1860 and in holding that an

M.L.A us not a public servant as defined therein.36 The supreme court also referred to the

actual practice in the matter of appointment of judges of Supreme court and High Courts in

the context of Interpreting Articles 74 and 124 of the Constitution and observed that the

practice being in conformity with constitutional scheme should be accorded legal sanction by

permissible constitutional interpretation. 37

30 J.K.Cotton Spinning and Weaving Mills Ltd. v. Union of India AIR 1988SC 191 ; Senior Electric Inspector v. Laxmi Narayan Chaopra AIR 1962 SC 159 31 Clyde Navigation Trustees v. Laird(1883) 8 AC 658; Goldsmiths’ Co. v. Wyatt (1907) 1 KB 95; Doypack Systems Pvt. Ltd. v. Union of India AIR 1988 SC 78232 Punjab Traders vs. State of Punjab AIR 1990 SC 2300 at page 230433 Senior Electric Inspector v. Laxminarayan Chopra AIR 1962 SC 15934 Raja Ram Jaiswal v. State of Bihar AIR 1964 SC 82835 (National & Grindlays Bank vs. Municipal Corporation of Gr. Bombay AIR 1969 SC 1048).36 R.S.Nayak v. A.R.Aunteley (1984) 2SCC 18337 SC Advocates on Record Assn. v. Union Of India AIR 1994 SC 269

A question as to the application of the rule of Contemporanea Expositio arose before the

House of Lords in the recent case of Governors of Campbell College v. Commr of

Valuation38. The governors of a feel paying public school claimed that the school was

exempted from rates being used for charitable purposes within section 2 of the of the

Valuation (Ireland) Amendment Act 1854.

It was accepted that if the test in Pemsels’ case39 applied the school would be entitled to the

exemption, for educational purposes were in law, Charitable purposes. It was however

contended from the opposite side that under a long standing practice supported bu Alexandra

College’s Case40 the exemption had been confined to those educational institutions whose

charitable purposes were concerned with the education of the poor. The house of Lords held

that the decision of the case of Alexandra College’s Case was unsupportable and the schiil

was entitled to the exemption. Viscound Radcliffe pointed out that the decision rendered in

1914 relating to the act of 1854 was not Contemporanea Expositio.41Lord Upton in the same

case said “ For my part I am quite unable to apply that principle to a statute although it was

passed a Hundred years ago whose language is plain and unambiguous and was not

misconstrued until the decision in Alexandra College’s Case sixty years later.

The application and scope of the rule of Contemporanea Expositio is extremely limited

especially in cases where the application had no legal basis, and the law may be overruled

even if such practice had consequently achieved the backing of judicial decisions and

especially so in case, in the changed circumstances its continuance let to great hardship. So

the house of lords in 1969 overruled a century old practice of assessing compensation by

reference to values prevailing at the date of notice to quit and held that the same should be

assessed with reference to the values prevailing when possession is taken or when assessment

is made.42 And similarly the House of Lords overruled a long standing judicial acceptance of

the meaning of the word wilfully as that had operated to the prejudice of the accused.43

But a uniform and consistent departmental practice arising out of construction placed upon an

ambiguous statute by the highest executive officers at or near the time of its enactment and

continuing for a long period of time is an admissible aid to the proper construction of the

38 (1964) 2 ALL ER 705 p. 72739 (1891) AC 531 (HL)40 (1914) 2 Ir R 44741 (1964) 2 ALL ER 705 p. 72742 Birmingham City Corporation v. West Midland Baptist (1969) 3 ALL ER 172 (HL)43 R. Shephard (1980) 3 ALL ER 899

statute by the court and would not be disregarded except for cogent reasons. The controlling

effect if tgus aid which is known as ‘ executive construction would depend upon various

factors such as the length of time for which it is followed, the nature of rights and property

affected by it, if injustice resulting from the departure and the approval that it has been

received in judicial decisions or in legislation.

In the instant case a service rule enabled section officers possessing a recognized degree in

civil Engineering or an equivalent to claim promotion if they had put in ‘ three years service

in the grade’ where as six years were required for a diploma holder. In case the officer

obtained the degree during service, the question before the court now became whether the

time period of three years was to be counted from the date the officer obtained the degree or

from the original date of joining service. According to the long continuing practice the period

of three years was counted from he date the degree was obtained and this practice was duly

followed in this case in construing the rule in light of the principle of contemporanea

exposition. The court in this regards said “ if the past practice is based on one of the possible

constructions which can be made of the rules then upsetting the same now would not be

appropriate.

This principle was applied in construction of the expression ‘ capital employed ‘ in section 80

J of the Indian Income Tax Act 1962 and in upholding the validity of rule 19A of the Income

tax rules which requires the exclusion of borrowed moneys from computation of ‘capital

employed’.44

In the case of State of Nagaland v. Ratan Singh45 the question before the supreme court was

with regards to the Scheduled Districts Act 1874 which authorized the local government ro

appoint officers t administer civil and criminal justice and to regulate the procedure of

officers so appointed. In negating the contention that the authority conferred was merely to

make administrative rules and not subordinate legislation pertaining to the procedure to be

followed in deciding cases the SC referred to the rules of 1872, 1874 ,1906 and 1937

containing comprehensive rules of procedure and said “ it is clear that a succession of

officers saw the necessity if rules controlling not only the administrative side but also the

judicial side of administration of justice.”

44 Lohia Machines Ltd. v. Uinion of India(1985) 2 SCC 19745 AIR 1967 SC 212

In construing the word ‘houses’ in the Section 89 of the Bombay Village Panchayats Act

1933 the SC relied upon the rules made in 1934 which used the word ‘building’ in place of

‘houses’ as one of the aids for holding that the word ‘houses’ also includes all buildings

whether used for residential or commercial purposes and not just for dwelling purposes.

A Circular can be read as a contemporaneous understanding and exposition of the intention

and purport of the Notification. Courts have treated contemporary exposition and used them

as aids to interpret even recent statutes. Thus in Collector v. Andhra Sugar,46 the Supreme

Court observed:

"It is well settled that the meaning ascribed by the authority issuing the Notification is a good

guide of a contemporaneous exposition of the position of law. Reference may be made to the

observations of this Court in K.P. Varghese v. Income Tax Officer, Ernakulam47 It is a well

settled principle of interpretation that Courts in construing a statute will give much weight to

the interpretation put upon it at the time 9f its enactment and since, by those whose duty has

been to construe, execute and apply the same enactment."

The maxim contemporanea expositio as laid down by Coke was applied to construing ancient

statutes, but not to interpreting Acts which are comparatively modern. There is a good reason

for this change in the mode of interpretation. The fundamental rule of construction is the

same whether the Court is asked to construe a provision of an ancient statute or that of a

modern one, namely, what is the expressed intention of the Legislature. It is perhaps difficult

to attribute to a legislative body functioning in a static society that its intention was couched

in terms of considerable breadth so as to take within its sweep the future developments

comprehended by the phraseology used, It is more reasonable to confine its intention only to

the circumstances obtaining at the time the law was made. But in a modern progressive

society it would be unreasonable to confine the intention of a Legislature to the meaning

attributable to the word used at the time the law was made, for a

modern Legislature making laws to govern a society which is fast moving must be presumed

to be aware of an enlarged meaning the same concept might attract with the march of time

and with the revolutionary changes brought about in social, economic, political and scientific

and other fields of

46 AIR 1989 SC 62647 AIR 1981 SC 1922

human activity. Indeed, unless a contrary intention appears, an interpretation should be given

to the words used to take in new facts and situations, if the words are capable of

comprehending them.48

It should also be noted that the principles of Contemporanea Expositio and executive

construction though relevant for solving a case of an ambiguity cannot be used for

bringing about an implied repeal or quasi repeal.49

48 Senior Electric Inspector v. Laxminarayan Chopra AIR 1962 SC 159, p. 162 :1962 (3) SCR 14649 Municipal Corporation for the city of Pune v. Bharat forge Col. Ltd. 1995 (2) Scale 245