Summary: The article examines the role of the Oxford comma, also known as the serial comma, in making statutory and legal language clearer and reducing ambiguity. It explains that an Oxford comma appears before the final conjunction in a list and can help distinguish separate and independent items. The article illustrates the issue through the American judgment in O’Connor v. Oakhurst Dairy, where the absence of an Oxford comma in a statutory exemption concerning food-industry activities resulted in competing interpretations. It then considers the practical relevance of punctuation in Indian regulatory drafting through the definition of “Senior Management” under the SEBI (Infrastructure Investment Trusts) Regulations, 2014. The article distinguishes an Oxford comma from other commas appearing near conjunctions, including the comma used to separate a qualifying or parenthetical phrase. It concludes that courts do not decide cases on punctuation alone, but punctuation may provide valuable guidance where statutory language permits more than one reasonable interpretation. Careful punctuation is therefore presented as both a drafting aid and an aid to legal interpretation.
Introduction
As a students of English language, we have been learning various punctuation marks and their different uses at different places, since our school days. However, now is the time to understand one of the crucial functions of punctuation, which is, aiding the Courts in interpreting the statutes in the most unambiguous manner possible.
Both Indian and international, Courts have time and again clarified that punctuation marks can be used to clear confusion and understand the exact meaning of statutes. In this article, we shall make an effort to understand how one of such punctuation marks, “the oxford comma”, helps the Courts in clearing the ambiguity around the meaning of any provision of law.
Concept of oxford comma
Before understanding how an oxford comma helps in interpreting statutes, let us first understand, what exactly is meant by oxford comma and how does it help in interpretation of statutes.
Meaning of oxford comma
An oxford comma, also known as the serial comma, is a comma placed before a conjunction used before the last item of any list. For example, Apples, Oranges, and Mangos. The comma placed after Oranges and before and is the oxford comma. It can also be used after conjunction “or”. There is no fixed rule for use of this type of comma. its use is optional and depends upon writer’s own style of writing. However, it is recommended to use the oxford comma before conjunction and last item of the list wherever there is a possibility that the last 2 items of the list may be read as one combined category.
Function of oxford comma
The function of an Oxford comma is to make the meaning of a sentence clearer by showing that each item in a list is separate and independent. It reduces the chances of the last two items being read as a single group, thereby avoiding ambiguity. This comma acts as an aid to interpretation by helping the Courts understand how the law maker intended the words to be grouped. Although courts do not decide cases based on punctuation alone, the presence or absence of an Oxford comma may help in adopting an appropriate interpretation, especially when there can be more than one reasonable interpretation of same provision.
Let us try to understand this with the help of a general example.
Suppose the sentence reads as, “we met the directors, Mr. ABC, and Mr. XYZ.” Here, the comma present after Mr. ABC and before conjunction “and”, makes it clear that we met 2 separate persons named ABC and XYZ who are different from directors.
However, if the sentence reads as, “we met directors, Mr. ABC and Mr. XYZ.” There are 2 possible interpretations.
1. We met the directors and 2 different persons other then the directors whose names were ABC and XYZ. And
2. We met 2 directors whose names were ABC and XYZ.
The presence of oxford comma helps eliminate multiple interpretations of the same provision and reach the one correct interpretation which the law maker intended to have.
Judicial pronouncement illustrating the use of oxford comma
While discussing the role of oxford comma in the interpretation of statutes, reference has to be made to an American judgment in the matter of O’Connor v. Oakhurst Dairy. This judgment was passed by the American first circuit Court in March 2017. In this case, the Court was required to determine, whether or not, the dairy delivery drivers were exempt from the state laws with respect to overtime.
As per the facts of the case, the dairy delivery drivers demanded an overtime pay for their job. But the state laws exempted some workers belonging to food and agriculture industry from requirement of being paid overtime. The state laws stated that wage and hour laws do not apply to “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution”.
Before going forword, a point worth noting here is that, there is no oxford comma present before the conjunction “or” and the last list item, that is, distribution.
The delivery drivers argued that they were not exempt from the overtime laws, since “packing for shipment or distribution” meant packing for shipment and packing for distribution. The actual distribution wasn’t exempted. Whereas, the dairy argued that, packing and distribution were separate items in the exemption list and both were exempt.
Referring to the missing Oxford comma, the First Circuit Court observed that, “For want of a comma, we have this case.” The absence of the Oxford comma made the statutory provision ambiguous, allowing both parties to offer different but reasonable interpretations. As the ambiguity could not be resolved through ordinary rules of interpretation, the court applied the rule of purposive interpretation and interpreted the provision in favour of the employees. The case highlights the importance of the Oxford comma in interpretation of statutes.
Even though this is a foreign judgment, The practical importance of the Oxford comma can also be seen in Indian regulatory drafting. The following definition under the SEBI (InvIT) Regulations illustrates how a single comma helps avoid ambiguity.
Example of oxford comma under SEBI INVIT regulations 2014
The convenience caused due to presence of oxford comma can be understood by referring to the definition of “senior management” in clause (zxb) of regulation 2(1) of SEBI Infrastructure Investment Trust regulations 2014 (INVIT regulations). The definition reads as under.
(zxb)] “Senior Management” means the officers and personnel of the investment manager who are members of its core management team, excluding the Board of Directors, and shall also comprise all members of the management, one level below the Chief Executive Officer or Managing Director or Whole Time Director or manager (including Chief Executive Officer and manager, in case they are not part of the Board of Directors) and shall specifically include the Compliance Officer and Chief Financial Officer;]
The definition provides list of persons who may be included in the category of senior management. The first part being that of the core management team excluding the board of directors and the second part being that of all members of the management one level below the Chief Executive Officer, Managing Director, Whole-Time Director, or Manager. Both these parts are separated by an oxford comma placed before the words “and shall also comprise”.
The comma before “and shall also comprise” plays an important role in understanding this provision. It clearly indicates that the qualifying phrase relating to first category, “excluding the Board of Directors”, has come to an end and that the definition is now introducing an additional category of persons.
Now imagine the same provision without this comma. The sentence would read: “…excluding the Board of Directors and shall also comprise all members…” such drafting may have left scope for multiple possible interpretations. One possible argument could be that the exclusion with respect to board of directors, and the words “and shall also comprise” form one continuous expression, while another argument could be that the provision contains two distinct categories. The court would then have to examine the language, context, and purpose of the regulation to determine which interpretation was intended. The comma helps avoid such unnecessary interpretative debates by clearly signalling where one idea ends and the next begins.
Not all commas after conjunction are oxford commas
While the previous example makes it clear that an oxford comma is one which appears after conjunction in a list of items and indicates that last item in the list is an independent item, it is necessary to keep in mind that not all commas appearing before a conjunction are oxford commas. Let’s understand this statement with the help of an example.
Take note of comma before the conjunction “and” in the following sentence.
“She agreed to attend and, despite her busy schedule, arrived on time.”
In this sentence, neither there is any list, nor the comma before “and” separates any list item. Therefore, in this sentence, the comma after “and” is not an Oxford comma. The words “despite her busy schedule” form an interrupting or parenthetical phrase. The two commas mark the beginning and end of that phrase, and give further information about her arrival on time.
Now let’s understand the same situation in context of a legal provision. The SEBI INVIT regulations define the term “INVIT assets” as follows,
(zb) “InvIT assets” means assets owned by the InvIT, whether directly or through a [holdco and/ or] SPV, and includes all rights, interests and benefits arising from and incidental to ownership of such assets;
Since placed before a conjunction, at first glance, the comma before “and includes” may appear to be an Oxford comma. However, as discussed in the above example, it does not separate the last item in a list. Instead, it marks the end of the qualifying phrase—“whether directly or through a HoldCo and/or SPV”—and indicates that the definition is now moving to a separate and independent part. In other words, the comma tells the reader that the qualification regarding the manner of ownership has ended, and that the words “and includes” introduce an additional aspect of the definition. Thus, the comma performs a structural function by separating two distinct legal ideas, rather than an Oxford comma’s function of separating the final item in a series.
One way to understand this is to think of commas as brackets in mathematics. Consider the expressions 2 × (3 + 4) and (2 × 3) + 4. They contain the same numbers, yet the brackets group them differently and produce different results. Commas perform a similar function in legal drafting. They help the reader identify which words or phrases belong together and where one idea ends and another begins. In this definition, the comma makes it clear that the qualifying phrase has ended and that the drafter is introducing a new and independent part of the definition.
Conclusion
The Oxford comma may appear to be a small punctuation mark, but its presence or absence can affect how a legal provision is understood. A comma is treated as an Oxford comma only where the following conditions are fulfilled.
1. There is a list of three or more items,
2. the comma appears before the final conjunction such as “and” or “or”, and
3. It separates the last item from the other items in the list.
However, every comma appearing before or after a conjunction is not an Oxford comma. Such a comma may merely separate two parts of a sentence, mark the end of a qualifying or parenthetical phrase, or indicate that one legal idea has ended and another has begun. Therefore, whether a comma is an Oxford comma depends upon the function it performs in the sentence and not merely upon its placement near the conjunctions, generally “and” or “or”.
Ultimately, courts do not decide cases on the basis of punctuation alone. They always consider the language, context, and purpose of the provision. However, where the wording is capable of more than one reasonable interpretation, punctuation, including the Oxford comma, may provide valuable guidance in understanding the intention of the law maker. Therefore, careful use of punctuation is not merely a matter of good drafting, it is also an important aid to legal interpretation.
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The article is written by Rutuja Umadikar – Deputy Manager
