By N. C. Jain, Advocate
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The Word
Literal interpretation is normally the rule, unless such an
interpretation leads to injustice, absurdity, extreme hardship or fails to avoid
the mischief sought to be avoided when different rules of interpretation are
applied to arrive at the most probable legislative intent conforming to the
objectives of the legislation. An interpretation is sometimes assailed on ground
of inconvenience likely to be faced if a particular view is taken. Such
challenges based on argumentum ‘ab inconvenienti’, though relevant in
judicial decisions, have a limited force and is generally applied with great
care.
2. “Every Legislation” as observed by Krishna Iyer, J in
Swantraj & Others v. State of Maharashtra, 1974 AIR 517 “is a social
document and judicial construction seeks to decipher the statutory mission,
language permitting, taking the cue from the rule in Heydon’s case of
suppressing the evil and advancing the remedy”. Laws enacted for general
advantage do sometimes result in individual hardship, notably in laws relating
to limitation, registration, attestation and the like. Such individual hardships
or injustice are not taken as having bearing on the legality and do not become
the basis for rejecting a natural construction. Arguments based on inconvenience
assume significance only when the resulting hardship is likely to be faced by
the community at large or affects the general good of the society.
3. The aforesaid view finds expression in Mohinder Singh
Gill and Anr. v. The Chief Election Commissioner, [1978 AIR 851 (SC)] where
an order of the Election Commission directing repoll in the entire constituency,
on destruction of papers and ballot boxes of some segments in a mob violence,
was challenged as arbitrary and violative of any vestige of fairness. The
failure of the Commission to provide opportunity before directing a repoll was
an argument taken by the appellant against which the plea ‘ab inconvenienti’
was advanced on behalf of the Commission, considering the supposedly large
number of persons affected. Reliance was placed on the earlier decision of the
Supreme Court in Subhash Chander Sinha’s case (1970) 3 SCR 963, where
re-examination was ordered by the Board after the examination was vitiated by
adoption of unfair means on a mass scale. In that case Hidayatullah, J repelled the plea of violation of natural
justice in not affording opportunity of hearing to affected persons. The Court
upheld the action taken without prior opportunity, considering that students
generally had outside assistance in answering question which results in
impossible plurality, frustrating the feasibility of notice and hearing.
4. While agreeing with the ratio of Subhash Chander (supra)
based on argument ‘ab inconvenienti’ dispensing with natural justice of
providing hearing in that case, the Supreme Court in Mohinder Singh Gill (supra)
distinguished that case from the case directing repoll. The Court observed
“attractively ingenious and seemingly precedented, argumentum ‘ab
inconvenienti’ has its limitation and cannot override established
procedures”. Whereas vitiated examination was not a case of any particular
individual who was charged and rested on conduct of a vast majority of examinees
at a particular centre, there is no such plurality in vitiated election as the
candidates concerned stand on a different footing from the electorate in
general. The plea of ‘ab inconvenienti’ was, therefore, held
inapplicable, and not giving the notice was taken an infirmity. As observed by
the Court, there may be a parallel in electoral situation if the Election
Commission cancels a poll because it is satisfied that the procedure adopted has
gone away on a wholesale basis.
5. Even in cases of hardship or inconvenience to persons in
general, Courts are generally reluctant to go by such considerations if the
interpretation/action otherwise conforms to the purpose and objective of the
legislation and such difficulties are possible to be taken care of by other
measures. A few decided cases will bring out the judicial approach in the
matter. In Smt. Ujjain Bai v. State of Uttar Pradesh, 1962 AIR 1621 (SC)
the issue was the entertainability of a writ petition challenging the order of
the sales tax officer, which was filed when the appellate proceedings before the
sales-tax authorities were in the midstream. The Court disapproved the argument
‘ab inconvenienti’ of the State. As it is the duty of the Court to
enforce a fundamental right of a party, if any authority has infringed his
rights, considerations based upon inconvenience are, of no relevance”. In a
situation like this, the Court indicated measures to avoid alleged inconvenience
including allowing the petitioner to withdraw the petition with liberty to file
it at a later stage, or, if the party does not agree to withdraw, may adjourn it
sine die till after the remedies are exhausted.
6. Swantraj and Ors v. State of Maharashtra, (supra),
was a case where the issue involved was whether the licence under the Drugs and
Cosmetics Act, 1940 which permitted stocking and selling drugs in a specified
vehicle, covered the brief interval of storage in the godown before loading the
drugs on to the appellant’s van. An argument ‘ab inconvenienti’ was
advanced from the side of the appellant and it was contended that it would be
impossible to furnish the details of very many possible places where for short
intervals drugs may have to be stored awaiting the arrival of the van. Krishna
Iyer, J speaking for the Court, referred to the paramount purpose of the
regulations through licensing as setting in motion vigilant medical watch over
the proper protection of drugs and medicines and held that the objective will be
frustrated if godowns, temporary stores, etc. can be unlicensed. The argument
‘ab inconvenienti’ was held to be affording no answer.
7. In Bengal Immunity Company Ltd. v. The State of Bihar and Ors., (1954) INSC 120, the Court was to decide the constitutionality of inter-state sales tax levied by the State of Bihar in respect of sales made in some other State but delivered in Bihar for consumption purpose. Delivering the dissenting judgment holding it constitutional, J. Das, Venkatararna Ayyer and B. P. Sinha JJ considered, among other, the argument ‘ab inconvenienti’ and disapproved its application. They observed that “even with reference to the inconvenience that might result from the multiplicity of assessment proceedings, it is one which is capable of being removed without disturbing the existing scheme of the Constitution, by Parliament enacting a law constituting an Authority under Article 367 and conferring on it power to receive from the sellers one consolidated statement of all their sales outside their State and determining the precise extent thereof effected in the several States and making that determination final for purposes of assessment by the States. That would, on the one hand, secure to the States the finance legitimately due to them and at the same time, save the sellers from the harassment of multiplicity of proceedings.
8. The question as to whether a voluntary income-tax return showing income less than the taxable limit filed on the last day would be a valid return so as to deprive the Department of the power to initiate reassessment proceedings u/s.34(1) of the Income-tax Act, 1922, was decided in assessee’s favour rejecting the Department’s argument ‘ab inconvenienti’. Countering the argument that if the return is held valid, the Department will be drivert to complete the assessment proceedings within a few hours or lose the right to send a notice u/s.34(l), the Court observed that the Income-tax Officer could have avoided the result by issuing a notice u/ s.23(2) and not remaining inactive until the period was about to expire. All laws of limitation lead to some inconvenience and hard cases. The remedy is for the Legislature to amend the law suitably [The Commissioner of Income-tax, Bombay v. V Ranchhoddas Karsondas, 1959 AIR 1154 (SC)].
