LACUNAS AND LOOPHOLES IN STATUTES

Laws are known to be replete with loopholes. The Exploitation of loopholes is something everyone likes to profess outrage about, and yet I would maintain that is central to legal practice. Practical constraints supposedly make laws avoidably over or underinclusive. This article offers a different perspective to a constitution. An aspect of the battle over Deconstruction is whether resort to legislative intent might help to determine the content of a statutory text that otherwise, in splendid isolation, could be deconstructed by simply positioning different interpretive contexts.

DEFINITION AND CONCEPT OF STATUTES

Law are created by parliament; Judges interpret the laws using statutory interpretation. Statutes are certainly the dominant form of law. Draftsmen, when drawing up statutes endeavor to ensure they are clear and unambiguous. However, statutes can contain wording with uncertain meanings and with society’s progress, old statutes, though still applicable, may contain wording unused in present day. There may be other errors unnoticed by parliament and statutes cannot cover every eventuality therefore; judges are required to interpret the meanings to statutes using the rules of interpretation.

According to the Black Law Dictionary, ‘A Statute is a formal written enactment of a legislative authority that governs a country, state or city. Typically, statutes command or prohibit something or declare Policy.

PROBLEMS OF LEGAL LANGUAGE IN STATUTES


As it is stated in latin by Publius Tacitus, ‘Corruptissma re publica plurimae leges that is , The more numerous the laws, the more difficulties with drafting and interpreting statutes.`

Difficulties in drafting of statutes such as- Clarity of thoughts, Problems of legal language in drafting of definition, Problem of legal language due to inherent ambiguities in the words, such as shall, may, must, and, or etc., Problem in legal language due to style, or hasty legislation, or due to inapt drafting making reconciliation between the old and new law,

There are also problems in interpreting statutes, such as ,language not precise, ambiguities may arise , meaning change over time, judges and parties involved may interpret statutes in different ways, or legislation applied in situations not envisaged by legislators etc. For better conceptual clarity I would like to give some case laws

Shreya Singhal v. Union Of India –Section 66A Writ petition Criminal no-167 of 2012

In this case Police arrested two women for posting allegedly offensive and objectionable comments on Facebook about the propriety of shutting down the city of Mumbai after the death of a Political leader of Shiv sena, Bala Saheb Thackeray. The police made the arrest under Section 66A of the Information Technology Act, 2000 which punishes any person who sends through a computer resource or communication device any information that is grossly offensive, or with the knowledge of its falsity, the information is transmitted for the purpose of causing annoyance, inconvenience, danger, insult, injury, hatred or ill will.

Although, the police released the women and dismissed the prosecution. The women filed a petition challenging the constitutional validity of Section 66A on the ground that it violates the right to freedom of expression guaranteed under article 19(1)(a) of the constitutional Of India.

Later the bench Justice Chelameswar & justice Nariman due to above volation declared section 66A unconstitutional.

It also found that Section 118(d) of the Kerala Police Law, that is about annoyance caused to any person in a decent manner is said to be unconstitutional as applied to section 66A.

Hindu Succession act, 2005

The bench justice Arun Mishra, Justice S.Abdul Nazeer and justice MR Shah declared that ‘Daughter will have a share after Hindu Succession (Amendment) act, 2005, irrespective of whether her father was live or not at the time of the amendment. As the act meant for removing gender discriminatory provisions regarding property rights.’ But there was no mention of cause about “where a Hindu dies prior the commencement of Hindu Succession Act, 2005 .in this way the Supreme Court bench dislodged Loopholes and lacunas hidden in it,

Joseph shine v. Union Of India, 2018 Section – 497 Online SC 1676

In Oct, 2017, Joseph Shine, a non-resident Keralite filed public interest litigation under Article 32 of the Constitution of India.

The petition Challenged the Constitutionality of the offence of Adultery under section 497 of the IPC read with Section 198(2) of the CrPC section 497 IPC criminalized adultery by imposing culpability on a man who engaged in sexual intercourse with another person’s wife with imprisonment of five years. Women including consenting parties were exempted from prosecution. Further, married women could not bring forth a complaint under Section4 497 of IPC.

Critics – When the sexual intercourse takes place with the consent of both the parties, then there is no good reason for excluding one party from the liability.

The said provision is also hit by the ratio laid down in –Justice K.S.Puttaswamy v. Union Of India. Since, sexual privacy is an integral part of ‘Right to privacy’. Section 198(2) of CrPC is also violative to Article 14 (Right to equality) and Article 21 (right of life and personal liberty) of the constitution of India. And it also excludes women from prosecuting anyone engaging in adultery. Supreme Court declare Section 497 of IPC that makes Adultery a punishable offence as unconstitutional.

‘Ibis jus ibi remedium’ which says, where there is a right, there is remedy. There are solutions such as statutes should provide legal obligations, they should be simplicity and order. It also requires a style of good composition.

I would like to conclude that statutes are to be interpreted to enforce the law and also to avoid miscarriage of justice. But if any interpretation results in injustice, hardship, inconvenience it should be avoided and the one, which support the justice, should be adopted. There is a lack of aequitas legem sequitur the maxim means equity follows the law. Different rules have been developed to provide the framework for the interpretation and it is the discretion of the judges to apply the best fitting case.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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