Non-Application of Ejusdem Generis to Parts III and IV of the Constitution of India

Dushyant Kishan Kaul examines how the principle of ejusdem generis impacts the scope of protection afforded by provisions of the Constitution of India.

INTRODUCTION

This short article examines how the principle of ejusdem generis impacts the scope of protection afforded by provisions of the Constitution of India [hereinafter, ‘Constitution’]. Analysing its application across a catena of judgement spanning the breadth of Parts III and IV on Fundamental Rights and Directive Principles of State Policy respectively, the common thread that runs through the interpretation of these provisions is that the application of ejusdem generis cannot be used to circumscribe the otherwise broad reach of our Constitution. Confining its analysis to certain judgements, it is argued that while principles of statutory construction also apply to constitutional Articles, the well-established canons of interpretation cannot be applied in a way that results in a narrow reading of the Constitution, particularly the Fundamental Rights chapter. Instead, to protect the broad reach of constitutional provisions, a practical readingof its text is necessary.

It is useful to begin with how courts have interpreted the remit of Article 12. The same is reproduced for the sake of convenience:

12. Definition.—In this Part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

The expression “other authority” has been interpreted in a liberal mannersuch that theSupreme Court of India has notapplied the principle of ejusdem generis to limit the ambit of the Article. For instance, in Rajasthan State Electricity Board, Jaipur v. Mohan Lal And Others¹ 1967, the Supreme Court held:

4. In our opinion, the High Courts fell into an error in applying theprinciple of ejusdem generis when interpreting the expression “otherauthorities” in Article 12 of the Constitution, as theyoverlooked thebasic principle of interpretation that, to invoke the application ofejusdem generis rule, there must be a distinct genus or categoryrunning through the bodies already named. Craies on, Statute Lawsummarises the principle as follows:

Maxwell in his book on ‘Interpretation of Statutes’ explained theprinciple by saying:“But the general word which follows particular andspecific words of the same nature as itself takes its meaning fromthem,and is presumed to be restricted to the same genus as thosewords …. Unless there is a genus or category, there is no room for theapplication of the ejusdem generis doctrine5”. In United Towns ElectricCo., Ltd. v. Attorney-General for Newfoundland, the Privy Council heldthat, in their opinion, there is no room for the application of theprinciple of ejusdem generis in the absence of any mention of a genus,since the mention of a single species — for example, water rates —does not constitute a genus. In Article 12 of the Constitution, thebodies specifically named are the Executive Governments of the Unionand the States, the Legislatures of the Union and the States, and localauthorities. We are unable to find any common genus running throughthese named bodies, nor can these bodies be placed in one singlecategory on any rational basis. The doctrine of ejusdem generis couldnot, therefore, be, applied to the interpretation of the expression “otherauthorities” in this article

5. The meaning of the word “authority” given in Webster's Third NewInternational Dictionary, which can be applicable, is a publicadministrative agency or corporation having quasi-governmentalpowers and authorised to administer a revenue-producing publicenterprise. This dictionary meaning of the word “authority” is clearlywide enough to include all bodies created by a statute on which powersare conferred to carry out governmental or quasi governmentalfunctions. The expression “other authorities” is wide enough to includewithin it every authority created by a statute and functioning within theterritory of India, or under the control of the Government of India; andwe do not see any reason to narrow down this meaning in the contextin which the words “other authorities” are used in Article 12 of theConstitution.

6. …These decisions of the Court support our view thatthe expression “other authorities” in Article 12 will include allconstitutional or statutory authorities on whom powers are conferred bylaw. It is not at all material that some of the powers conferred may befor the purpose of carrying on commercial activities. Under theConstitution, the State is itself envisaged as having the right to carryon trade or business as mentioned in Article 19(1)(g). In Part IV, the State has been given the same meaning as in Article 12 and one of theDirective Principles laid down in Article 46 is that the State shallpromote with special care the educational and economic interests of theweaker sections of the people. The State, as defined in Article 12, isthus comprehended to include bodies created for the purpose ofpromoting the educational and economic interests of the people.

For ejusdem generis to apply, general words must be preceded by specific words. Moreover, the general word/s must form a non-heterogenous genus by itself. For this reason, the term ‘state’ under Article 12 could not confined to the surrounding words because the expression “any other authority” entailed a heterogenous set of authorities.

Thus, insofar as the application of ejusdem generis in Article 12 is concerned, the heterogenous character of the word ‘State’ precluded its scope being limited in nature. The same was affirmed by the Supreme Court in Housing Board of Haryana v. Haryana Housing Board Employees’ Union And Others².

Next, Article 46 protects the rights and entitlements of certain weaker sections of society. It reads as follows:

46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.—The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.

An interesting interpretive conundrum appears here. While the title puts the phrase ‘other weaker sections’ after the specific words, i.e., Scheduled Castes and Scheduled Tribes; the actual contents of the provision place the phrase ‘weaker sections of the people’ before the said specific words. This article, to avoid an absurd conclusion, presumes that the terms ‘other weaker sections’ appearing in the title and ‘weaker sections of the people’ are one and the same.

In this context, the application of ejusdem generis came to be tested in Janhit Abhiyan v. Union of India (EWS Reservation)³. Rejecting the contention that the term ‘weaker sections’ was to be read in light of the terms, Scheduled Castes and Schedules Tribes, the Supreme Court opined that the benefits of economic justice of the provision was intended to be available to all weaker sections. The following observations are worth reproducing:

131.3. Though, the text and the order of the expressions used in the body of Article 46 have been repeatedly recounted on behalf of the petitioners to emphasise on the arguments based on ejusdem generis principle of interpretation but, as aforesaid, that principle does not fit in the interpretation of an organic thing like the Constitution. This apart, when traversing through the principles of interpretation, it could also be noticed that in case of any doubt, the heading or sub-heading of a provision could also be referred to as an internal aid in construing the provision, while not cutting down the wide application of clear words used in the provision. [Vide Frick India Ltd. v. Union of India, (1990) 1 SCC 400 : 1990 SCC (Tax) 185] What is interesting to notice is that in the heading of Article 46, the chronology of the description of target groups for promotion of educational and economic interests is stated in reverse order than the contents of the provision. The heading signifies “Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections” whereas the contents of the main provision are framed with the sentence “interest of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes”. A simple reading of the heading together with the contents would make it clear that the broader expression “other weaker sections” in Article 46 is disjointed from the particular weaker sections (Scheduled Castes and Scheduled Tribe); and is not confined to only those sections who are similarly circumstanced to SCs and STs.

Adopting a liberal reading of an organic document of the Constitution, the Supreme Court noted that the phrase ‘other weaker sections’ appeared after the specific words in the title of Article 46 but preceded the specific words in the text. This, in its view, meant that the term was disjointed and not tied to the specific words. This enabled it to endorse an expansive construction of Article 46, which are rightly meant to protect as many citizens as is possible within permissible interpretive confines. It correctly opined that the if the title was held to be determinative, the application of ejusdem generis would unduly constrict the broad reach of a constitutional provision. Indicating that despite being a useful internal aid in statutory construction, a title could never cut down the wide import of a provision, it relied upon the decision of the Supreme Court in M/s. Frick India Ltd. v. Union of India & Ors.⁴, where it was held as follows:

8. It is well settled that the headings prefixed to sections or entries cannot control the plain words of the provision; they cannot also be referred to for the purpose of construing the provision when the words used in the provision are clear and unambiguous; nor can they be used for cutting down the plain meaning of the words in the provision. Only, in the case of ambiguity or doubt the heading or sub-heading may be referred to as an aid in construing the provision but even in such a case it could not be used for cutting down the wide application of the clear words used in the provision…

Two things become abundantly clear: [i] the application of ejusdem generis is generally not applied in an exercise of constitutional interpretation to prevent a restrictive construction of those provisions; and [ii] in peculiar and highly unusual cases where there is an unintended ambiguity between the title of a constitutional provision and its text, the said ambiguity is to be resolved in favour of a liberal interpretation of the Constitution. This, ipso facto, means that the principle of ejusdem generis is not applied. Fortunately, in the aforesaid case, the text of the provision was held to carry greater weight than its title. This decision is in line with the wealth of judicial decisions that have held that the substance of a provision always override the object and general nomenclature of enactments⁵. In short, when the title of a constitutional provision creates confusion, the content takes precedence, particularly when the same results in ejecting the application of ejusdem generis in exercises of interpretation.

For the sake of completeness, it may be useful to analyse a situation where the text of a constitutional provision results in a more liberal reach when compared to its text, which is narrower. In such a situation, it may be advisable to refrain from applying the principle of ejusdem generis to avoid the risk of under-inclusion of an otherwise broad constitutional provision. While this may upend settled law whereby the substance overrides the title in the case of a conflict, at least the broad application of the constitutional provision would remain protected. In short, preserving the liberal spirit of the Constitution is of paramount important, even if the same, at times, comes at the cost of not applying principles of statutory construction.

The last segment of this article examines the approach adopted by the Supreme Court in interpreting the reach of the prerogative writ jurisdiction of High Courts in Article 226. Initially, the Supreme Court chose to apply the principle of ejusdem generis to restrict the invocation of the provision to instances involving the exercise of fundamental rights. In State of Orissa v. Madan Gopal Rungta & Ors.⁶, the Supreme Court opined:

13. The language of the article shows that the issuing of writs or directions by the Court is founded only on its decision that a right of the aggrieved party under Part III of the Constitution (fundamental rights) has been infringed. It can also issue writs or give similar directions for any other purpose. The concluding words of Article 226 have to be read in the context of what precedes the same. Therefore, the existence of the rights is the foundation of the exercise of jurisdiction of the Court under this article.

However, more recently, the Supreme Court seems to have obliquely dispensed with its application in State of West Bengal And Others v. Committee for Protection of Democratic Rights, West Bengal And Others⁷, where it upheld the wide ambit of the provision and held:

57. As regards the powers of judicial review conferred on the High Court, undoubtedly they are, in a way, wider in scope. The High Courts are authorised under Article 226 of the Constitution, to issue directions, orders or writs to any person or authority, including any Government to enforce fundamental rights and, “for any other purpose”. It is manifest from the difference in the phraseology of Articles 32 and 226 of the Constitution that there is a marked difference in the nature and purpose of the right conferred by these two articles. Whereas the right guaranteed by Article 32 can be exercised only for the enforcement of fundamental rights conferred by Part III of the Constitution, the right conferred by Article 226 can be exercised not only for the enforcement of fundamental rights, but “for any other purpose” as well i.e. for enforcement of any legal right conferred by a statute, etc.

CONCLUSION

In conclusion, usually, the principle of ejusdem generis applies only when general word/s are preceded by specific words, and the general word/s constitutes a homogenous category where there is a common thread running through the categories of that genus. Fairly consistently, the Supreme Court has not applied the principle of ejusdem generis while interpreting constitutional provisions out of its fear to inadvertently impede the enjoyment ofbasic constitutional rights Constitution.

Statutory interpretation and general aids of construction ought not to be applied in a rigid manner. Where the principle of ejusdem generis is implicit in the title of a constitutional provision but not in its text, of course, the latter should be preferred. However, where the principle is implicit in the text and not the title, the conventional rule of giving preference to the substance over the title, ought to give way to protecting an expansive reading of constitutional Articles. Whichever situation it might be, rules of statutory interpretation must be read to protect the liberal form of our Constitution.