APRIL 22, 2020

By Vijay Kumar

Why do we use brackets (parenthesis) and what is the legal validity?

The parenthesis, is "a note made of two great semi-circles, or half Moons ( )". These do, and always must include, or inclose one, or more words of a perfect sense in a sentence, which may be used, or omitted, and yet the sense remain intire. - from a 1680 book

Black's Law Dictionary defines parenthesis as:

Part of a sentence occurring in the middle thereof, and inclosed between marks like ( ), the omission of which part would not injure the grammatical construction of the rest of the sentence. Wharton; In re Schilling.

A word, phrase, or sentence, by way of comment or explanation, inserted in, or attached to, a sentence which would be grammatically complete without it. State v. Morgan, 133.

Sixty years ago, Justice Hidayatullah {who acted as president of India (note, in brackets)} in his judgement in Elphinston Spinning case - 2002-TIOL-431-SC-IT-LB - quoted Lord (Justice) Reid in Special Commissioners of Income-tax v. Linsleys Ltd :

"The difficulty does not arise from the enacting words but from the words in brackets which purport to describe the proviso to section 262(2) of the Income Tax Act, 1952. Those words could well be held to support the view of the Court of Appeal, but they seem to me to be a misdescription of the proviso to section 262(2). This is one of the places where I think that obscurity has resulted from a failure of the draftsman to anticipate a case like the present - as I have said, a very natural failure. In fact the proviso merely deals with the deductions to be allowed in computing actual income. But the words in brackets in section 68(2) refer to deductions in computing actual income of a company 'in relation to which a direction is in force' under section 262(1). It would seem that these words have crept in because the draftsman assumed that a direction would always be given automatically in the case of an investment company and did not realise that a computation must first be made to determine whether the company has in fact any actual income. Whether that be the true explanation or not, I cannot regard the presence of these words in brackets, which are mere description, as of much weight in comparison with the other considerations to which I have referred."

In a (recent) judgement in Zamil Steel Buildings - 2017-TIOL-31-HC-MUM-VAT, the Bombay High Court observed,

24. What can be discerned from the aforesaid decision is that words, clauses or a sentence appearing in parenthesis / brackets are inserted in a passage as an explanation or an afterthought, which is otherwise also, grammatically complete without it. To put it simply, the purpose of a parenthesis is ordinarily to insert an illustration, explanation, definition or additional piece of information of any sort into a sentence that is logically and grammatically complete without it.

27. Looking to these authoritative pronouncements, it is clear that the utility of a bracket is only as an illustration, explanation or extra information. It is thus clarificatory. It is not always exhaustive of the terms outside the bracket. It cannot curtail or limit the scope of the terms employed outside the bracket. Eventually, no general rule can be laid down. As held by the Supreme Court, ordinarily, words appearing in brackets are illustrative and not exhaustive. Therefore, everything would depend upon the context and purpose with which in an individual statute the words in the bracket are inserted by the Competent Legislature.

But can't we write the laws without those bawdy brackets?

I have picked up a few bracketed sentences from the GST Act.

1. provision by a club, association, society, or any such body (for a subscription or any other consideration) of the facilities or benefits to its members.

2. "fixed establishment" means a place (other than the registered place of business) which is characterised by a sufficient degree of permanence and suitable structure in terms of human and technical resources to supply services, or to receive and use services for its own needs.

3. "works contract" means a contract for building, construction, fabrication, completion, erection, installation, fitting out, improvement, modification, repair, maintenance, renovation, alteration or commissioning of any immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of such contract.

4. Provided that where more than one registered persons (sic) are having the same Permanent Account Number (issued under the Income-tax Act, 1961)

5. goods or services or both received by a taxable person for construction of an immovable property (other than plant or machinery) on his own account including when such goods or services or both are used in the course or furtherance of business.

Can Masks be exported?

I got into the brackets only when a friend asked me (yesterday) whether masks could be exported. In Covid days, this is certainly an important question (worth considering).

DGFT Notification No. 44/2015-2020, dated 31.01.2020 prohibited the export of Personal Protection Equipment including Clothing and Masks [Coveralls (Class 2/3/4) and N95 masks]

DGFT Notification No. 47/2015-2020, dated 08.02.2020 amended the above notification to prohibit the following export of;

All Personal Protection Equipments including Clothing and Masks [Coveralls (Class 2/3/4) and N- 95 Masks] except the following items:

1. Surgical Masks/ Disposable Masks (2/3 Ply)

2. All Gloves (except NBR Gloves)

The DGFT explained the effect of this notification as, the items such as Surgical Masks/Disposable Masks (2/3 Ply) and all Gloves except NBR Gloves are allowed freely for export.

DGFT Notification No. 48/2015-2020, dated 25.02.2020 amended the above notification to -

Prohibit All Personal Protection Equipment including Clothing Prohibited and Masks [Coveralls (Class 2/3/ 4) and N-95 Masks].

However, the following items are allowed to be freely exportable:

1. Surgical Masks/Disposable Masks (2/3 Ply)

2. xxx

3. xxx

DGFT Notification No. 52/2015-2020, dated 19.03.2020 stipulated that:

Surgical Masks / Disposable Masks (2/3 Ply Masks) are prohibited.

However, the "Effect of Notification" explained by DGFT states - The export of all ventilators, Surgical/Disposable (2/3 Ply) Masks only and Textile raw material for masks and coveralls only falling under the ITC HS Codes specified against each has been prohibited, with immediate effect. All other items (except surgical/disposable (2/3 Ply) Masks) allowed in the Notification No. 48 dated 25.02.2020 shall remain "free" for exports.

Now, the question by my friend was, "can I export 4 ply masks as the restriction (in brackets) is for only 2/3 ply masks?" I know any answer from me would land him in trouble. Can the DGFT clarify?

Rahul Gandhi - regret in brackets

In a recent case in the Supreme Court, Rahul Gandhi expressed his regrets in brackets. He stated, "It is also clear that no Court would ever do that and hence the unfortunate references (for which I express regret) to the Court order…"

The Supreme Court is reported to have asked his counsel, "What is the meaning of writing regret in brackets?"

While writing this, I could not avoid using brackets [out of ignorance or habit {or both (other factors not excluded)}]

I have absolute faith in LAW [as amended {legislatively or otherwise (by notifications/circulars) from time to time].

Until next week