Ban on sun control film - Mischief Rule misinterpreted

The Supreme Court in .Avishek Goenka Vs Union of India banned all kinds of black films on car windows. The apex court has stirred up the mischief rule 'Ejusdem Generis'. By construing the doctrine, the Supreme Court observed that the expression maintained has to be construed ejusdem generis to manufacture, and banned use of all kinds of films on car windows. The judgment does not delve into core aspect like for what purpose sun control films even with permissible VLT should not be used . Now let us scan rule 100(2) of Motor vehicles act - The glass of the windscreen and rear window of every motor vehicle shall be such and shall be maintained in such a condition that the visual transmission of light is not less than 70%. The glasses used for side windows are such and shall be maintained in such condition that the visual transmission of light is not less than 50%, and shall conform to Indian Standards. This raises an argument -Did the Supreme Court "err" in interpreting that the law does not permit use of sun films on vehicles windscreens and only vehicle manufacturers can provide tinted glass with users having no right to alter the level of tint by affixing sun control films? Before determining the issue of the applicability of the ejusdem generis rule to the facts of this particular case, we need to know what is meant by ejusdem generis rule. On analyzing ejusdem generis rule and the rule (often known as the Mischief rule in Heydon's case) under which the court has to consider the law before the enactment of the statute, the defect or mischief in the law and the remedy adopted to cure that defect or mischief.

The Latin expression "ejusdem generis" which means "of the same kind or nature" is a principle of construction, meaning thereby when general words in a statutory text are flanked by restricted words, the meaning of the general words are taken to be restricted by implication with the meaning of restricted words. In uncomplicated expression -when particular words are followed by general words, the general words are construed as limited to things of the same kind as specified in the particular words(i.e. general words not to be interpreted widely and general words should highlight the object manifested in the particular words). Thus, in order to strike a balance between general and specific words, this maxim is used. e.g. horse, cow, pig, goat, sheep and other animals would in isolation imply other four legged stock animals as coming within the section but not birds or fish. The doctrine of ejusdem generis, however, is only a rule of construction to be applied as an aid to ascertain the legislative intent. It should be emphasized that whether the statute is remedial or penal has no effect upon the applicability of the doctrine.

The rule of ejusdem generis applies in the following circumstances:

The statute contains an enumeration of specific words;

1) The subjects of enumeration constitute a class or category;

2) That class or category is not exhausted by the enumeration;

3) The general terms follow the enumeration; and

4)There is no indication of a different legislative intent.

Can the the word maintenance appearing in the sub-clause (2) could be read ejusdem generis with the words manufacture?

Ejusdem generis is a critical rule for interpreting technological statutes like Motor vehicles act because technology advances very rapidly and the legislature cannot anticipate those advances Craies on ,Statute Law summarises the principle as follows:-

"The ejusdem generis rule is one to be applied with caution and not pushed too far. To invoke the application of the ejusdem generis rule there must be a distinct genus or category. The specific words must apply not to different objects of a widely differing character In interpreting the expression maintenance the principle of ejusdem generis cannot be applied, because, for the application of that rule, there must be distinct genus or category . It does not speak of a class, category or genus followed by general words. The rule of ejusdem generis has, therefore, no application.

The principle of ejusdem generis does not apply here because the statute's plain meaning is apparent-Manufacturer- means a person who is a designer, formulator, constructor, rebuilder, fabricator, producer, compounder, processor, or assembler of any product or any component part thereof and who places the product or any part thereof in the stream of production rather maintenance takes place outside the premises of the manufacturer of the vehicle . Maintenance is post manufacturing activity. The doctrine of ejusdem generis only applies where an enumeration of specific things is followed by some more general word. When a statute contains this pattern, then the general words must be construed to refer to things of the same kind or species as those specifically enumerated. The word manufacture is not enumerated in the Act The rule of further states that, when general words follow a designation of particular classes or things, the particular designations restrict the meaning of the general terms. As such the statutory interpretation rule of ejusdem generis precludes manufacturers from falling within the statutory definition of maintenance.

Therefore the word maintained can be interpreted that - Alteration of VLT (visual transmission light) can be done by maintaining with requisite VLT percentage by use of sun control films. Since maintenance is subsequent to its manufacturing we can change or modify the glass windows within permissible limits. Hence, the rule gives absolute right to the owner of the vehicle to choose or alter percentage of VLT within the permitted range or limit and not to the manufacturer. Maintenance of vehicle is vested with the owner/purchaser of the vehicle and not manufacturer. The word maintained in the context has a self evident meaning and thus form a complete an independent word. The word maintained is not defined in the Motor vehicles rules therefore it must be given its plain, ordinary, and generally accepted meaning, unless the policy indicates the term was used in a technical or different sense.

The sruti principle of mimansa rules of interpretation spells out if a word is explicit in sense , no attempt should be made to strain or twist its meaning. They cannot be construed contrary to their meaning .When once the intention is plain it is not the province of the court to scan its wisdom or its policy. When one construction would secure convenience and economy and another would impose labour and fruitless trouble ,the former should be followed. Sun control films are technologically superior and hence cheaper than conventional tinted glasses. On Safety: There's nothing more dangerous than flying shards of glass, which often cause the most damage during, riots, collisions etc. Sun control films not only resist breakage, they also hold the pieces together whenever glass panes break, thereby minimizing damage to life and property. The total ban of sun control films has caused inconvenience and hardship to vehicle users. In a conservative society like India one can imagine the plight of nursing mothers who will be exposed to every prying eye including strangers.

Moreover, our beloved sisters and daughters will also be victims of harassment from evil-minded mischievous people. Already there are innumerable reports of such harassment happening. In a more dangerous situation women driving alone or only women occupants will be targeted by eve teasers. Children of the rich and well-to-do will be easy prey for unscrupulous elements Cases of thefts of valuables like laptops, car stereos, wallets, mobiles etc., will be a regular occurrence. Society feels hard to get over this squeamishness. The apex court observed in Pathumma vs state of kerala (A.I.R. 1978 S.C. 771) -Courts is to interpret the provisions so as to show a complete consciousness and deep awareness of the growing requirements of the society, the increasing needs of the nation, the burning problems of the day and the complex issues facing the people. The judicial approach should be dynamic rather than static, pragmatic rather than pedantic and elastic rather than rigid. It must take into consideration the changing trends of economic thought, the temper of the times and the living aspirations and feelings of the people. A word like a man is very often known by the company it keeps and accordingly a word is very often to be understood in the context and collocation it is used.

The rule of ejusdem generis calls for very careful application in case where the context of the enactment and the object and mischief of the enactment do not require any restricted meaning, it is the duty of the court to give the words their plain and ordinary meaning (AIR 1957 SC 521).This has been ingeminated in RAGHUNATH RAI BAREJA AND ANOTHER vs PUNJAB NATIONAL BANK AND OTHERS [(2007) 2 SCC 230.It say-so- Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule - Statute should be as it is, without distorting or twisting its language.

The courts are finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further processing. principle of statutory interpretation has or should have effect only when the legislation under consideration is ambiguous Lord Scarman in Quazi v. Quazi [1979] 3 All ER 897 (HL) at page 916 described the Ejusdem generis rule as 'useful servant but a bad master'. Applying these as best I can conclude in my opinion, it is wrong to use the rule of ejusdem generis construction as a piece of abstract or mechanical reasoning. It is a guide not a rule and can be looked primarily in the construction of a statute only in a limited area. The apex court ought to have held that alteration of VLT (visual transmission light ) can be done by maintaining with requisite VLT percentage by use of sun control films.

By: K.SURESH BABU

ADVOCATE, NEW DOOR NO 9,

RAJA COLONY, SECOND MAIN ROAD,

LAWSONS- COLLECTORS OFFICE ROAD,

CANTONMENT,TRICHY-620001

EMAIL:lawyersureshbabu@gmail.com