By N. C. Jain, Advocate
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The Word
A Latin expression, literally meaning ‘as abundant
caution’ is a legislative practice followed to obviate any possibility of a
view different from what is intended by the Legislature. By its nature,
therefore, a provision ‘ex abundanti cautela’ explains the provision
contained in a statute to put certain areas beyond controversy and clarify the
legislative intent in situations where a reasonable apprehension can exist of a
different interpretation being taken by the courts.
2. Strangely, a provision to provide certainty and clarity is
often itself a matter of controversy as to its nature. Whether a particular
provision is ‘ex abundanti cautela’ or an independent provision is quite
often a subject of debate. This issue becomes significant because the provision
not considered ‘ex abundanti cautela’ results in a restricted meaning
eliminating, by implication, all that is not said therein. On the other hand a
provision held ‘ex abundant cautela’ does not restrict the provision in
any way and allows it to have the meaning which it would have, even if the
cautioning provision had not existed. It merely dispels apprehension about a
possible view in respect of certain items/areas in relation to the provision to
which it is ‘ex abundanti cautela’.
3. A few examples will make the import of the expression
clear. Under the Central Excise tariff, item 17(2) is ‘paper subject to
coating’. The nature of item 17(3) inserted for the category ‘carbon paper’ was
subject matter of dispute in a case where demand was raised in respect of
‘carbon paper’, for the period prior to introduction of item 17(3). The
Department took the plea that the amendment was merely ‘ex abundanti cautela’,
as carbon paper was always covered under item 17(2). The Supreme Court after
considering the case from different angles, upheld the Department’s view that
carbon paper was covered by item 17(2) (Collector of Central Excise Kanpur v.
Krishna Carbon Paper Co., 1988 AIR 2223).
4. In Central Provinces Transport Services Ltd. v.
Raghunath Gopal Patwardhan, (1957 AIR 104) — a case under the Industrial
Disputes Act — an employee was prosecuted for a charge of theft in 1950, but was
acquitted in 1952, after which he claimed reinstatement and compensation. The
employer refused to entertain the application, inter alia, on the ground
that the applicant was not an employee, as dismissed employees are not employees
under the Act. The Act in S. 2(10) defines an employee ‘to mean any person
employed by an employer to do any skilled or unskilled, manual or clerical work
for contract or hire or reward in any industry and includes an employee
discharged on account of any dispute relating to a charge, in respect of which a
notice is given u/s.31 or 32 whether before or after the discharge”.
(emphasis supplied). It was argued on behalf of the employer that the inclusive
part of the definition reflects the legislative intention to include only those
who are proceeded against u/s.31 and u/s.32 and not all the discharged employees
in general, as otherwise there was no need for the further provision in S. 2(10)
that discharged employees would in certain cases be employees. Disagreeing, the
Supreme Court observed :
“In our opinion, the clause was inserted ‘ex abundanti
cautela’ to repel a possible contention that employees discharged u/s.31
and u/s.32 of the Act would not fall within S. 2(10) and cannot be read as
importing an intention generally to exclude dismissed employees from that
definition.”
5. The provision ‘ex abundanti cautela’ is generally
in the form of a sub-section or an inclusive expression or explanations
expressly stated as ‘for benefit of doubt’ and also sometimes as non-obstante
clause. The examples of inclusive expression in tax laws can be multiplied.
Wherever the Legislature finds it difficult to express a term of wide import in
language, it leaves it open to the judiciary to provide meaning to it, taking
care to include or exclude specific areas where there can be possibility of
different interpretations, as a measure of precaution. The very definition of
‘income’ is of the nature. The same is the case with ‘transfer’ u/s.2(47),
‘salary’ u/s.17(1), ‘perquisite’ u/s.17(2) and host of other provisions where
specific areas are specified as included within these terms instead of a general
broad-based definition.
6. Examples of provisions expressly stated as for removal of
doubt can also be multiplied. One such example is explanation inserted in S.
10A, S. 10AA and S. 10B to repel the possibility of profits derived from the
site development of computer software not being treated as profit derived from
export of computer software. Another explanation in S. 10B dispels the possible
impression that cutting and polishing of precious and semi-precious stones do
not fall within ‘manufacture or produce’ in that Section. S. 263 which gives
power to the Commissioner of Income-tax to revise the order of the Assessing
Officer has provision ‘ex abundanti cautela’ by way of explanation to say
that orders passed by the Assessing Officer in pursuance of the directions
u/s.144A and orders passed by Joint Commissioners in exercise of power of
Assessing Officer conferred on them will be orders of the Assessing Officer,
subject to the revisional power of the Commissioner of Income-tax. More and more
explanations are being inserted, as a measure of precaution, to clarify the
legislative intention whenever there is any indication arising from the Court’s
decision that a view different from what is intended can possibly be taken.
7. Even non-obstante clauses are sometimes taken as ‘ex abundanti cautela’. In a case relating to Administration Evacuation of Property Act, 1950 where the nature of a non-obstante provision contained in S. 12(1) came for consideration, the provisions “not-withstanding anything contained in any other law for the time being in force, the custodian may cancel any allotment or terminate any lease or agreement ….. ” was argued as being a provision which overrides a bar imposed by any law, but not the bar imposed by a contract under which the lease was held. The Supreme, Court, after considering various aspects of the case, came to the conclusion that the operative portion of the Section which confers powers on the custodians to cancel the lease or vary the terms thereof is unqualified and absolute and that power cannot be abridged by reference to the provision that it could be exercised “notwithstanding anything contained in any other law”. The non-obstante provision is obviously intended to repel a possible contention that S. 12 does not, by implication, repeal statutes conferring rights on lessees and cannot prevail as against them and has been inserted ‘ex abundanti cautela’. (Raibahadur Kanwar Rajnath & Others v. Pramod C. Bhatt, Custodian of Evacuee Property, 1956 AIR 105).
8. In deciding as to whether the expression is ‘exabundanti cautela’ or not, the courts are generally guided by the object of the legislation and the purpose it is intended to serve. The following ex-tract from the decision rendered by Justice Krishna Iyer in R. S. Joshi STO, Guj. v. Ajit Mills Ltd., Ahd., & Another, 1977 AIR 2279 succinctly brings out the approach.
“A law has to be adjudged for its constitutionality by the generality of cases it covers, not by the freaks and exceptions it martyrs. The professed object of the law being clear, the motive of the Legislature is irrelevant to castigate an Act as a colour able device. The interdict on public mischief and the insurance of consumer interests against likely, albeit unwitting or ‘ex abundanti cautela’, excesses in the working of a statute are not merely an ancillary power, but surely a necessary obligation of a social welfare State.”
