NOVEMBER 20, 2024

By Vijay Kumar

"SURPLUSAGE" - it sounds like the latest diet fad or perhaps an unfortunate side effect of eating too many samosas. But it became quite the buzzword after the Supreme Court judgement in Canon India delivered on November 07 2024 - 2024-TIOL-115-SC-CUS-LB.

A new Section 110AA has been inserted in the Customs Act by Section 94 of the Finance Act 2022 and Section 97 of the Finance Act was thrown in to validate certain actions taken under the Act.

This in effect means that:

1. As per Section 110AA, the DRI officers, after conducting the investigations, should hand over the case to the jurisdictional proper officer who will issue the show cause notice and adjudicate the matter.

2. As per Section 97

a. All actions taken by the DRI all these years are deemed to be validly done or performed or taken,

b. Notifications appointing DRI officers shall be deemed to have been validly issued,

c. These are deemed valid at all times.

But wait! The Supreme Court in Canon India ruling - 2024-TIOL-115-SC-CUS-LB held that DRI officers always had the power to issue Show Cause Notices. If they really had the power always, what was the need to confer the powers on them retrospectively by Section 97 of the Finance Act 2022? The Supreme Court stated:

Therefore, the validating provision under Section 97 of the Finance Act, 2022 is a mere surplusage with respect to validation of the show cause notices issued by DRI officers under Section 28. It cannot be challenged on the ground that it does not cure the defect pointed out in Canon India when no defect can be made out therein as a result of this review petition.

So, the Supreme Court first held that DRI officers were not competent to issue Show Cause Notices and so the government brought in legislation to retrospectively empower DRI to issue Show Cause Notices. This retrospective legislation was challenged and the Supreme Court now holds that as the latest Canon Judgement has held that DRI always had the power and the retrospective amendment is a mere surplusage.

But can Statutes have surplusages?

The Constitution Bench of the Supreme Court in Hardeep Singh vs. State of Punjab (2014) 3 SCC 92 held:

No word in a statute has to be construed as surplusage. No word can be rendered ineffective or purposeless.

In Chief Information Commissioner - 2011-TIOL-114-SC-RTI the Supreme Court held,

It is one of the well-known canons of interpretation that no statute should be interpreted in such a manner as to render a part of it redundant or surplusage.

In Aswini Kumar Ghose v. Arabinda Bose - AIR 1952 SC 369, Chief Justice Patanjali Sastri laid down:

It is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute.

CJ Mathew, Member CESTAT in Coastal Gujarat Power Ltd - 2016-TIOL-2925-CESTAT-MUM stated

It is also an acknowledged rule of interpretation that surplusage cannot be presumed in a statute.

Canon of Statutory Construction - Rule Against Surplusage

The Rule Against Surplusage means that different words in the same statute cannot have the same meaning. In other words, one word is not duplicative or redundant of another word found in the statute.

Now Section 97 of the Finance Act 2022 states, 'deemed to have been validly done or performed or taken' - done, performed or taken - are they all different activities?

It is not as if surplusage has suddenly appeared in our jurisprudence and remember it is a global phenomenon. Experts have analysed it extensively over the years. Some serious thoughts:

For purposes of statutory construction, the courts and drafters use a series of "canons" to guide them. These include textual canons, linguistic presumptions and grammatical conventions, substantive canons, and extrinsic aids.

The first presumption is that the Legislature drafts its Bills carefully and intentionally. Because of this presumption, the usual approach of the Courts is to narrow statutes rather than expand them.

The canon called the "rule against surplusage" is used when reading a statute and it appears that one or more parts of the statute are redundant. There could be another reading that would avoid the perceived redundancy.

Rule against surplusage: Where one reading of a statute would make one or more parts of the statute redundant and another reading would avoid the redundancy, the other reading is preferred.

Surplusage Canon. If possible, every word and every provision is to be given effect. None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.

Surplusage does not vitiate that which in other respects is good and valid.

In the latest Canon India case, Mr. N. Venkataraman, the Additional Solicitor General of India, submitted:

Changes introduced by the Finance Act, 2022 are in the nature of surplusage; that the amendments carried out in the Act, 1962 vide Sections 87 and 88 of the Finance Act, 2022 respectively are a mere surplusage done ex abundanti cautela and are clarificatory in nature.

The Court held:

Therefore, the validating provision under Section 97 of the Finance Act, 2022 is a mere surplusage with respect to validation of the show cause notices issued by DRI officers under Section 28.

"UTILE PER INUTILE NON VITIATUR. The useful is not vitiated by the useless. Surplusage does not spoil the remaining part if that is good in itself." SURPLUSAGIUM NON NOCET - Surplusage does no harm.

The surplusage canon is a principle of legal interpretation stating that every word and provision in a legal document should be given meaning and effect. This means that no term should be ignored, and no interpretation should cause words to duplicate each other or become meaningless. These words cannot be meaningless, else they would not have been used.

According to the surplusage canon, courts should not revise legal texts by removing words or provisions, just as they should not add to them. Even if a particular provision seems unjust or creates an unfortunate outcome, it must still be enforced. Chief Justice John Marshall articulated this idea by warning against making inferences from external circumstances that would exempt certain cases from the express terms of a legal document.

In the words of legal scholar Thomas M. Cooley, "The courts must . . . lean in favour of a construction which will render every word operative, rather than one which may make some idle and nugatory."

This principle applies not only to legal texts but also to all forms of writing. Ignoring crucial words can lead to improbable interpretations.

Common Misapplications

Occasionally, lawyers may attempt to persuade courts to overlook significant words-like "only," "solely," or "exclusively"-and some judges might oblige. However, the surplusage canon generally prevents not merely the disregard of a provision, but also interpretations that render parts of it pointless. Legal drafts should not include words without purpose, and courts strive to avoid interpretations that render any word redundant.

When a provision can:

1) Achieve an effect already provided for by another provision, or

2) Deprive another provision of its independent meaning,

the interpretation that maintains the independent operation of both provisions should be preferred.

In cases of ambiguity, courts often lean towards an ordinary meaning of terms, even if it introduces some redundancy-demonstrating that careful judgment and discretion are required in applying this canon. We should understand that not all redundancies are accidental; sometimes, drafters intentionally repeat themselves due to stylistic choices or the overly cautious approach. Legal writing frequently contains phrases like "execute and perform" or "rest, residue, and remainder," which may complicate interpretation.

Counterarguments

Some critics argue that the surplusage canon is flawed. They contend that legal drafters do not always write diligently and may intentionally include redundant language to cover potential gaps or simply due to carelessness. Moreover, legislators often prioritize more critical issues rather than addressing redundancy in legal texts.

This criticism may overlook several key points:

1) The surplusage canon encourages meticulous drafting, helping to ensure that every word serves a specific function.

2) General language is usually more effective than redundancy in addressing unforeseen gaps in the law.

3) Legislators should take care to eliminate unnecessary words; if they do not, they should consider hiring competent editors.

4) In cases where drafters resort to stringing synonyms together (e.g., "transfer," "assign," "convey," "alienate"), the redundancy is evident, and courts typically will not interpret each term as having a distinct meaning.

Essential Facts about the Surplusage Canon:

1) The rule against surplusage ensures that every word in legal documents has a specific purpose and cannot be disregarded.

2) Courts use this rule to prevent interpretations that render any part of a statute meaningless.

3) This rule promotes clarity and precision in legal writing while encouraging the efficient use of language.

4) The surplusage canon can work alongside other interpretive rules to guide judicial interpretation.

5) When encountering redundancy in legal texts, courts may refer to legislative history or intent to clarify meaning.

When the law was amended to give DRI the power to issue Show Cause Notice retrospectively, was the Review Petition against the Canon judgement a surplusage?

Not at all; we learned so much law including surplusage!

Surplusage: Because sometimes the only thing better than writing a legal document is writing a longer one just for fun.

And if we can obtain judgements by invoking divine intervention, maybe lawyers are merely surplusage.

Until next week