CODIFYING OF STATUTE UNDER INTERPRETATION OF

STATUTE

Introduction

India was once under the rule of the British and there was colonial rule prevailing here. In
modern India also we have inherited the touch of the colonial legal system. There are many
statues which were brought into force during British raj but still are in enforcement. It is not that
the laws which were introduced by them have become obsolete or are not applicable to the
present day situation.

The law is not only be devilled with uncertainty, at the best the archaic and arbitrary character of
the law is offensive to modern thought. At worst it is a dangerous trap to the public outside
Parliament we think the best solution of this problem will be to codify the law and practice
relating to Parliament by statute or falling this by resolutions of the House of Commons.

Though the demand for codification of privileges is not new and since early 1950s concerns
have been raised especially by the press to remove the alleged arbitrariness prevailing in the
exercise of privileges by the legislative bodies. Even the judiciary while deciding controversial
matters relating to privileges, in its obiter dicta has suggested such codification

The term codification denotes the creation of codes, which are compilations of written statutes,
rules, and regulations that inform the public of acceptable and unacceptable behaviour.
Codification rearranges and displaces prior statutes and case decisions. Codification of an area of
law generally constitutes the whole source that is relied upon for a legal question in that area. In
law codification is the process of collecting and restating the law of a jurisdiction in certain areas
usually by subject forming a legal code i.e. a codex (book) of law. Codification is the defining
feature of civil law jurisdictions. Thus when a state codifies its criminal laws the statutes
contained within the new code supersede the laws that had been in place prior to the codification.
There are exceptions to this general rule.
Historical Background

The first permanent system of codified laws could be found in China with the compilation of the
Tang Code in AD 624. This formed the basis of the Chinese criminal code, which was then
replaced by the Great Qing Legal Code, which was in turn abolished in 1912 following the
Xinhai Revolution and the establishment of the Republic of China.

Another early system of laws is Hindu law framed by Manu and called as Manu Smriti dating
back to the 2nd century BC. The use of civil codes in Islamic Sharia law began with the Ottoman
Empire in the 16th century AD.

Besides religious laws such as the Torah important codifications were developed in the ancient
Roman Empire with the compilations of the Lex DuodecimTabularum and much later the Corpus
IurisCivilis. These codified laws were the exceptions rather than the rule however as during
much of ancient times Roman laws were left mostly un codified.

Ancient India represented a distinct tradition of law, and had a historically independent school of
legal theory and practice. The Arthashastra, dating from 400 BC and the Manusmriti, from 100
AD were influential treatises in India, texts that were considered authoritative legal guidance.
Manu's central philosophy was tolerance and pluralism, and was cited across Southeast Asia.

Early in this period, which culminated in the creation of the Gupta Empire, relations with ancient
Greece and Rome were not infrequent. The appearance of similar fundamental institutions of
international law in various parts of the world show that they are inherent in international society,
irrespective of culture and tradition. Inter-State relations in the pre-Islamic period resulted in
clear-cut rules of warfare of a high humanitarian standard in rules of neutrality of treaty law of
customary law embodied in religious charters in exchange of embassies of a temporary or semi-
permanent character.

Codified Statute and Consolidated Statute: Analysing difference

Codifying statutes are statutes passed to codify the existing law. Codifying statute is a statute
which presents an orderly and authoritative statement of the leading rules of law on a given
subject. This kind of statute exhaustively states the entire law on a particular subject.
Codification contemplates implies and produces continuity of existing law in clarified form
rather than its interpretation.

Features are as follow: -

a. A codifying statute may be a code only with respect to a particular branch of a subject.
b. When a code covers a situation it is not permissible to apply general principles.
c. In contrast to an ordinary enactment a code is self-contained and complete.

Construction of Codifying Statute:

Lord Herschell observed that the principles applicable for construction of codifying statutes are
two:

a. Firstly the language of the statute should be examined; and

b. Secondly natural meaning of the statute should be looked for without getting influenced
by any considerations as to previous state of law.

Codification systematizes case law as well as statutes. Rearrangement of statutory provisions in

the process of codification leaves their meaning unaffected.

Consolidated Statute

Consolidation is the combination in a single measure of all the statutes relating to a given subject
matter and is distinct from codification in that the later systematizes case laws as well as statutes.
Consolidating statutes are statutes to comprehend in one statute the provisions contained in a
number of statutes.

3 Major Differences between Codifying Statutes and Consolidating Statutes are listed below:

The difference between these two is very pointed. ledgers in his The Construction of Deeds and
Statutes treats both of them on the same level. He says that there is no difference in between
them. For him the language used in the statute is very much important rather than classifying into
codifying statutes and consolidating statutes. However there are certain differences in between
them as follow:

Codifying Statute

1. Codifying statutes systematizes case-law as well as statutes.

2. A codifying statute should be interpreted according to the normal canons of constructions
and recourse to repealed enactments can be taken generally to solve any ambiguity.
3. While constructing the codifying statute the language used in the statute is examined in
the context but at the same time the repealed statutes may also be referred.

Consolidating Statutes:

1. Consolidating statutes is the combination of the statutes relating to a given subject-

matter. It does not contain the case-law.
2. A consolidating statute should be interpreted according to the normal canons of
constructions and recourse to repealed enactments can be taken only to solve any
ambiguity.
3. The primary rule of construction of a consolidating statute is to examine the language
used in the statute itself without any reference to the repealed statutes.

Codification in common law and civil law jurisdictions

Civil law jurisdictions rely by definition on codification. A notable early example were the
Statutes of the Grand Duchy of Lithuania, in the 16th century. The movement towards
codification gained momentum during the Enlightenment, and was implemented in several
European countries during the late 18th century (see civil code). However it only became
widespread after the enactment of the French Napoleonic Code (1804) which has heavily
influenced the legal systems of many other countries.

Scope in international Law

Following the First World War and the establishment of the League of Nations, the need for
codification of international law arose. In September 1924, the General Assembly of the League
established a committee of experts for the purpose of codification of international law, which
was defined by the Assembly as consisting of two aspects:

Putting existing customs into written international agreements

Developing further rules

In 1930 the League of Nations held at the Hague a conference for the purpose of codification of
rules on general matters but very little progress was made.

Following the Second World War the International Law Commission was established within the
United Nations as a permanent body for the formulation of principles in international law.

Re codification

Re codification refers to a process where existing codified statutes are reformatted and rewritten
into a new codified structure. This is often necessary as over time the legislative process of
amending statutes and the legal process of construing statutes by nature over time results in a
code that contains archaic terms, superseded text, and redundant or conflicting statutes. Due to
the size of a typical government code, the legislative process of re codification of a code can
often take a decade or longer.

Advantage of Codification
Codification of laws would bring forth an element of certainty. Every new case that would arise
would seem less uncertain and equivocal.

Codification of laws would also improve the state of affairs by bringing out simplicity in the
operations. It would be clearer to the people by its codification. It would become simple and
accessible to all. If the laws are codified, besides bringing about more clarity it would be in a
position where greater awareness can be created about the rights of the asylum-seekers.

This will also reflect the uniformity in the operation of the law. When the law would be in a
proper form of statutes, body of laws in a systematic and coherent way, the end result would be a
well compiled promulgated set of rules on the subject concerned which would ultimately help in
the betterment of the legal framework. If the legal transactions with regards to the laws could be
dispensed with ease, they would not only ameliorate the conditions of the destitute asylum
seekers but also pave a better way to the countrys development.

An incidental product of codification would be the logical arrangement of all the case laws and
statutes. This would help in reducing any sort of conflict and inconsistency that may arise out of
the legal system or various laws in the country.

Codification of the laws would also foster the planned development of our country. When the
State and other competent authorities would collect, arrange and systematize all the laws
regarding the asylum-seekers, it would not only reduce the disarray in this scenario but also
nurture the procedure of solving the problems faced by the refugees.

Need for codification of refugee laws

India, due to its diverse, stable, established culture, has been a major destination of people who
have been fleeing from their home land, subjected to the terror of being persecuted and
subjugated to erratic, unstable, distressed and often deplorable circumstances. The word
refugee was derived from the French word rfugi that was used to describe early French
Protestants seeking refuge. Refugees all-over the world is forced to flee on account of various
issues arising out of religion, caste, creed, political views or even for being a member of or
supporting a particular group or society.

Laws are said to have been codified from the ancient ages. Hammurabi, the king of Babylonia is
said to have codified the laws of Sumer and Mesopotamia which are the oldest and the earliest
known civil codes to have survived even till the 21st century. The reason why sets of rules were
codified or made into codes from as old as 2100-2500 B.C. is simply because a fundamental
need of doing so was felt by the jurists all over the world.

The codification of the rules is those rules exist even today. Codification refers to the collection
and systematic arrangement, usually by subject, of the laws of a state or country, or the statutory
provisions, rules, and regulations that govern a specific area or subject of law or practice. By
codification, the body of laws is compiled, collected and arranged in a coherent form. This is
useful as it helps to avoid overlapping and inconsistency. According to Salmond, codification
means reduction of the whole corpus Juris so far as practicable, in the form of enacted law.

Thus, the absence of codification of refugee laws does not completely overrun the possibility of
the slow degradation and obliviousness of the refugee laws. Codification of refugee law is an
essential tool in order to ensure its endurance.

The need for the codification of the refugee laws has been felt indispensably over the years.
Moreover India has not even signed the Refugee Convention so far. Refugees in our country
have to undergo substantial discrimination for reasons related to their nationality, religion and
such other issues which makes their survival highly difficult in our country. The maximum
empowerment of the refugees in our country has been to a limit of their getting work as a
domestic help in households or a construction labourer at industrial sites. The refugees are forced
to take up accommodation in camps, as was the case with the Chakmas. This could be observed
in 1995-1997, when the Chin refugees of Burma were heartlessly pushed back the borders of
India. The refugees do not get an access to proper education as the Indian educational institutions
do not admit the children of the asylum seekers into their schools or colleges.

A few administrative measures do not solve the problem of social discrimination faced by all
those who have sought refuge. There has been considerable dispute about the legal status of
refugees because in India the asylum-seekers have so far been treated as foreigners with no
legal rights

Many activists such as Meenakshi Ganguly agree that the basic reason for the sad treatment of
refugees in India is the absence of a national legislation pertaining to this issue. With the
codification of the rules, the condition of the asylum-seekers could be improved manifold. Under
the Registration Act of 1939, the asylum seekers are registered once they enter our country but
this Act is applicable to any and all the foreigners who enter our country and is not specifically
meant for the refugees. The Passport Act of 1967 also regulates the entry of all the non-citizens
or migrants who cross the borders of India. As per the Passport Act 1967, all those people who
enter our country without a legally valid visa or passport can be detained.

The Government, in certain cases, grants an exemption to certain migrants who are not supported
by a valid visa or passport as per its own prerogative. The refugees qualify for this exemption.
Though this relief is of a valuable help to the distressed refugees but at the same time, the
demerits of this system cannot be ignored at all.

Further, the entry, presence, stay and the departure of the aliens is regulated by the Government
of India under the Foreigners Act of 1946. It is to be noted here that nowhere in the Act has the
term alien been explained or even defined.

Judicial Pronouncements

Aarti Sabharwal vs Jitender Singh Chopra

Facts

Defendant No.1who was a British passport holder had moved to the United Kingdom (U.K) to
file a divorce petition against the Plaintiff there. On receipt of summons she sent a letter to the
said court pointing out inter alia that the allegations made by Defendant No.1 are false and that
she has no resources to defend herself in the courts in UK. In the meanwhile the Plaintiff who
had returned to Delhi from Dubai, where the parties were last residing together, tried to enter her
matrimonial home at 32, Sultanpur Farms, Mehrauli, New Delhi where Defendants 2 and 3 were
also residing. She was however threatened with dire consequences and her life was threatened as
well.

Question arises

1. whether the Plaintiff is entitled to seek maintenance at all under Section 18 HAMA
(Hindu adoption and maintenance act) against her father-in-law or mother-in-law was not
decided in the said case?
2. No defence based on any right in respect of any property held benami, whether against
the person in whose name the property is held or against any other person, shall be
allowed in any suit, claim or action by or on behalf of a person claiming to be the real
owner of such property.

Reasoning involved

1. Essentially on the same averments under Order VII Rule 11 CPC, the specific ground on
which rejection of the plaint is sought is that the suit as presently formed does not
disclose any cause of actio. It is submitted no claim for maintenance can be made against
either of them under Section 18 HAMA.
2. It is plain from Section 4(1) that no suit shall lie to enforce any right in respect of any
property held benami against the person in whose name the property is held. Even if one
were to stretch the argument, as is sought to be done by the Defendants, the plaintiff
cannot claim ownership to the suit properties but only lay claim for recovering
maintenance from Defendant No.1, who according to her is the real owner of such
property.

Conclusion

Interim order dated 12th March 2007 restraining Defendant from pursuing the proceedings in the
UK courts does not survive on account of the fact that a decree of divorce has in fact been
granted by that court in favour of Defendant No. 1. In that view of the matter, the said interim
order also stands vacated as having become infructuous.There is merit in the contention of
Defendant that the suit should also fail for not seeking any relief of cancellation of the title deeds
under which the properties are held at present by Respondent. For all of the above reasons, this
Court is of the view that prayer of Defendants 2 and 3 in the application under Order VII Rule 11
CPC should succeed.

Dr.BibhasDebnath vs The State Of West Bengal

Facts

The petitioner in this case is the husband of the Opposite Party. An application underSection 125
of the Cr.P.C. was filed against him in the Court of the Learned Additional Chief Judicial
Magistrate, Bidhannagar, North 24-Parganas. During the course of those proceedings the
Opposite Party wife filed an application for amendment of her original maintenance petition,
which was allowed by the Learned Trial Court. The petitioner preferred revision against such
order. But his Revisional Application was dismissed by the Learned Additional Sessions Judge,
6th Court at Barasat, and the order of the Learned ACJM was upheld. He has now approached
this Court to challenge the same.

Question arises

1. Provision under the Code of Criminal Procedure for permitting amendments in the
pleadings in the form of applications or replies before the concerned Court?
2. Can Parliament really have intended that the acts that were done in this particular case
should have the benefit of the immunity?

Reasoning Involved

1. The petitioner that in the absence of an appropriate provision within the codified law, it is
not open for the Courts to transgress beyond the Statute for granting any such relief to a
party, which is not covered within the Statute as, in such event, the Court would
essentially be intruding into the Legislative domain.
2. It is risk straying beyond his constitutional role as interpreter of the enacted law and
assume a power to decide at his own discretion whether or not to apply the general law to
a particular case, The legitimate questions for a judge in his role as interpreter of the
 enacted law are, 'How has Parliament, by the words that it has used in the statute to
express its intentions, defined the category of acts that are entitled to the immunity.

Conclusion

Decision of a co-ordinate bench of this High Court is well- reasoned and it was authoritatively
held that in a proceeding under section 125CrPC amendment is permissible. I therefore, find no
merit in this criminal revision and same is dismissed.

Niranjan Lal Todi vs NandalalTodi

Facts

The appellant and the respondents entered into an agreement whereby and whereunder they
agreed to nominate Mr. R.K. Chowdhury, Advocate and Senior Partner of Khaitan and Co., as
arbitrator to adjudicate the disputes amongst themselves.

The appellants contend that although the time to make and publish the award in terms of the
arbitration agreement had expired on 8th August, 2004, the learned arbitrator neither passed any
award, nor extended the time to make and publish the award.

Question arises

1. Whether an appeal lies to a Division Bench, against an order of the Single Bench,
refusing to terminate the mandate of the arbitrator named in the arbitration agreement,
and refusing to appoint another arbitrator in place of the named arbitrator?

Reasoning Involved

1. The nature of the order would have to be examined, in order to ascertain whether there
has been a determination of any right or liability. Even an interlocutory order might be a
judgment, if it contains the traits and trappings of finality, either when the order decides
the questions in controversy in an ancillary proceeding or in the suit itself or in a part of
the proceeding. In the case before the Supreme Court, the order of the Trial Judge
 refusing appointment of a receiver and injunction was held to be judgment within the
meaning of Letters Patent.

Conclusion

The Supreme Court, as well as the Special Bench of this Court have, on considering the words
"an appeal shall lie from the following orders (and from no others) to the Court authorized by
law to hear appeals from original decrees of the Court passing the order" in Section 39(1) of the
Arbitration Act, 1940, held that no appeal would lie under the Letters Patent, against an order
from which no appeal lay under Section 39 of the said Act.It is, thus, to be seen that Arbitration
Act, 1940, from its inception and right through to 2004 (in P.S. Sathappan) was held to be a self-
contained code. Now, if theArbitration Act, 1940 was held to be a self-contained code, on
matters pertaining to arbitration, the Arbitration and Conciliation Act, 1996, which consolidates,
amends and designs the law relating to arbitration to bring it, as much as possible, in harmony
with the UNCITRAL MODEL must be held only to be more so.

Rites Limited vs Jmc Projects (India) Ltd

Facts

The parties entered into an agreement which contained an arbitration clause for settlement of
disputes through arbitration. The respondent initially also invoked the arbitration agreement. An
Arbitral Tribunal was also constituted. Before the Arbitral Tribunal, the case of the respondent
was that its claims were not referable to arbitration, being "excepted matters". Correspondence
took place between the parties and the Arbitral Tribunal. Thereafter, the Respondent preferred the
Civil Suit aforesaid in which the appellant preferred the application under section 8 of the Act.

The learned Single Judge rejected the appellants said application after examination of the
correspondence undertaken by the parties with the Arbitral Tribunal and upon arriving at the
conclusion that the present was a case where the parties have mutually terminated the mandate of
the Arbitral Tribunal under Section 15 of the Act.
Question arises

1. Scope of section of 37 in this type of situation?

Reasoning Involved

1. The embargo on appeals in Section 37 is an absolute and categorical one. Moreover, in

the instant case, the Arbitration and Conciliation Act, 1996 which is a special act dealing
with the arbitrations, specially limits the extent of judicial intervention inasmuch as it
provides that no judicial authority shall intervene except where so provided. Section 5 of
the Arbitration and Conciliation Act, 1996 is reproduced hereinbelow for ready reference:

Extent of judicial intervention notwithstanding anything contained in any other

law for the time being in force, in matters governed by this Part, no judicial authority
shall intervene except where so provided in this Part.

Conclusion

The court find no merit in the appellant's submission that the impugned order having been passed
in a civil suit, Section 37 of the Act cannot be invoked to bar the appeal. The order has been
passed by the learned Single Judge on an application preferred by the appellant by
invokingSection 8 of the Act. Obviously, it is an order passed under the Act. This submission of
the appellant is, therefore, rejected.

Conclusion

Code-makers watchfulness was the prime concern and the negotiations made during the course
of the enactment reflect this time and again. From collating information on customs and
practices, to simplifying the language in a discernible manner, to translating sections in Indian
languages to repeatedly circulating the code far and wide for feedback, the government was
leaving no stone unturned to put forth its cautious face. So we can say from above subject matter
and different case law I would like to conclude it like codifying statute is backbone and
necessary part of Interpretation of statute.