NATIONAL LAW INSTITUTE UNIVERSITY

THE ROLE OF
PARLIAMENTARY AND
LEGISLATIVE HISTORY
IN THE
INTERPRETATION OF
INDIAN STATUTES
Interpretation of Statutes
Nikhil Srivastava

Submitted to,
 THE ROLE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN
THE INTERPRETATION OF INDIAN STATUTES

Prof. Deboshree Sarkar

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 THE ROLE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN
THE INTERPRETATION OF INDIAN STATUTES

Table of Contents
INTRODUCTION.....................................................................................................................................2
UNDERSTANDING PARLIAMENTARY AND LEGISLATIVE HISTORY..........................................................3
IS LEGISLATIVE HISTORY BINDING?........................................................................................................3
LEGISLATIVE HISTORY AND LEGISLATIVE INTENTION............................................................................4
REASONS FOR THE COURT'S USAGE OF LEGISLATIVE HISTORY.............................................................4
THE USE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN THE INTERPRETATION OF INDIAN
STATUTES: WITH REFERENCE TO CASE LAWS........................................................................................5
REFERENCE TO PROCEEDING OF LEGISLATURE WHILE DISCUSSING THE CASE LAWS.......................5
CONCLUSION.......................................................................................................................................11
BIBLIOGRAPHY.....................................................................................................................................12

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INTRODUCTION
Interpretation is as ancient as language. Highly structured “rules of interpretation” were developed
at a very primitive stage of the Hindu civilization. Interpretation is a knack of finding out the object of
an enactment by construing the words in their natural and ordinary meaning. The Court is not
supposed to interpret arbitrarily and thus certain basic principles have been evolved. These
principles are described as ‘rules of interpretation’. Its object is to ascertain the intention of the
legislature communicated expressly or impliedly in the language used. As stated by Salmond,

"By interpretation or construction is meant, the process by which the courts seek to ascertain the
meaning of the legislature through the medium of authoritative forms in which it is expressed."

When the words in a statute are unclear, it is the task of the court to interpret it by referring to
internal as well as external aids. Apart from the intrinsic aids such as preamble and the purview of
the act, the court considers resources beyond the act, called extrinsic aids. They mainly deal with the
history of the act.

But this historical setting is not used as an aid if the wording is clear. If there is some ambiguity
wording of the statute, the historical setting may be taken into account in order to achieve the
proper construction. Historical setting includes parliamentary history, historical facts, statement of
objects and reasons, report of expert committees and so on.

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UNDERSTANDING PARLIAMENTARY AND LEGISLATIVE HISTORY

Parliamentary history stands for the procedure by which an act is enacted. This contains conception
of an idea, drafting of the bill, the debates, the amendments etc. Speech made during over of the
bill, amendments contemplated during the progress of the bill are considered in parliamentary
history while the papers sited before the cabinet which pronounced for the introduction of the bill
are not germane since these papers are not cited before the parliament.

Legislative history means -

(i) The legislative antecedents of the statutory provision under consideration, i.e.
corresponding provisions in previous enactment since repealed and re-enacted with or without
modification.

(ii) Pre-parliamentary materials relating to the provision or the statue in which it is contained
e.g. reports of committees and commission

(iii) Parliamentary materials

IS LEGISLATIVE HISTORY BINDING?

This notion is completely rejected. On contrary, there seems to be broad consent that legislative
history is just a tool with acts as a "guiding function" for the courts. Variation of opinion arises
regarding the relative weight to be provided to the historical interpretative method in relation to
other methods. Advocates of legal discourse theory suggest a ranking that usually places arguments
based on legislative intent higher than others." Furthermore, increasing number of scholars are of
the view that while a categorical duty of the courts to stick to legislative history might not exist, an
obligation to refer the materials does1.

1
Kenneth R. Dortzbach, Legislative History: The Philosophies of Justices Scalia and Breyer and the Use of
Legislative History, http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1486&context=mulr

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LEGISLATIVE HISTORY AND LEGISLATIVE INTENTION

It is important to differentiate between legislative history and legislative intent.

According to Black's Law Dictionary legislative intent2 means "the design or plan that the legislature
had at the time of enacting a statute."

It does not essentially reveal the meaning of each word; however it does offer courts with a ways of
selecting between competing interpretations. Few schools of legislative interpretation offer that the
court's obligation is to determine and uphold the intention of the legislature; while some should the
existence of a collective intention and the necessity to determine such, even if it does exist. For
those in the former school, it is one mode to discern legislative intent.

According to Black's Law Dictionary legislative history3 means

"The back ground and events leading to the enactment of a statute, including hearings committee
reports, and floor debates."6

In the beginning of the definition- "the background and events" is in fact broader than the general
perception of legislative history and, if it were not restricted by the remainder of the definition,
would appear to cover more than the documents drafted during the legislative process. It includes
the "documents legislatures generate in the course of enacting statutes.

REASONS FOR THE COURT'S USAGE OF LEGISLATIVE HISTORY

Many scholars have tried to understand the motive of judges for citing legislative history. The usage
of legislative history is motivated by a combination of legal and ideological considerations.

Usually, the legal variables have a considerably greater impact on the possibility of legislative history
use than the ideological variables, but the influence of the ideological variables cannot be denied.
The intricacy of a statute amplifies the likelihood of legislative history usage, while routinely
amended statutes are less prone to obtain such treatment.

2
Black's Law Dictionary, at 919.

3
Black's Law Dictionary, at 919.

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The age of the statute is also relevant, but its outcome is neither linear nor monotonic: extremely
new and old statutes are less likely to extract legislative history usage than statutes of intermediate
age. The facts also recommend that the usage of legislative history by one justice induces other
justices to respond in the similar kind.

With regard to the effect of ideological factors, liberal justices are usually more likely than
conservative justices to use legislative history. Consequently, the rightward shift in the ideological
composition of the Court has greatly corresponded with a falloff in the overall usage of legislative
history since the mid-1980s.

THE USE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN THE

INTERPRETATION OF INDIAN STATUTES: WITH REFERENCE TO CASE
LAWS
The parliamentary history may be referred for ascertaining the intention, but not for construction, is
pedantic. In fact all such material out freely to be referred to and it is only by resort to such material
that the object of the legislation and how the legislature intended to achieve that object by the
particular statute can be correctly ascertained by the court 11. The reliance which is placed on
legislative history by the courts in determining an issue can be seen in many case laws.

REFERENCE TO PROCEEDING OF LEGISLATURE WHILE DISCUSSING THE

CASE LAWS

In Administrator-General of Bengal v. Premlal Mullick 4, the question was whether a Hindu executor
was a “private executor” within the meaning of Section 31 Administrator General’s Act, 1874. The
Privy Council held reversing the High Court, that he was a “private executor” within the meaning of
Section 31 of the Act. Their Lordships observed:

“The two learned Judges, who constituted the majority in the appellate court, although they do not
base their judgement upon them, refer to the proceedings of the legislature which resulted in the

4
ILR (1895) 22 Cal 788

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passing of the Act of 1874 as legitimate age to the construction of Section 31. Their Lordships think it
right to express their dissent from that proposition. The same reasons which exclude these
considerations when the clauses of an Act of the British Legislature are under construction are
equally cogent in the case of an Indian statute.

In A. Thangla Kunju Musaliar v. M. Venkatachalarn Patti 5, the questions were whether Section 5(1)
of the Travancore Taxation on Income (Investigation Commission) Act, 1124 (ME) was discriminatory
and whether the Commission had authority to investigate any case suo moto. It was observed:

The question at once arises as to why it was that the legislative authority took the view that there
were possible cases of tax evasion. It has been said that although the statement of the objects and
reasons appended to a bill is not admissible as an aid to the construction of the Act as passed, yet, it
may be referred to only for the limited purpose of ascertaining the conditions prevailing at the time
which necessitated the making of the law.

In S C. Prashar v. Vasantsen Dwarkadas 6, S.K. Das, J. observed: The statement of objects and moons
for introducing a particular piece of legislation cannot be used for interpreting the legislation if the
words used therein are clear enough. But the statement can be referred to for the purposes
ascertaining the circumstances which led to the legislation in order to find out what was the mischief
which the legislation aimed at.

And Kapur, J. observed:

In construing an enactment and determining its true scope it is permissible to have regard to all such
factors as can legitimately be taken into account to ascertain the intention of the legislature such as
the history of the Act, the reason which led to its being passed, the mischief which had to be cured as
well as Site cure as also the other provisions of the statute. This is the rule in Heydon case".

Taking this principle into account it appears that the object of the amendment was to validate
certain notices after the 1959 amendment and after the lapse of eight years from the end of the
assessment year and also to nullify the effect of the Calcutta judgment in Debi Dutta Moody case.

5
AIR 1956 SC 246
6
AIR 1963 SC 1356

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In Balchand Jain v. State of M.P 7. for holding that an order for anticipatory bail could be issued
under Section 438, Criminal Procedure Code, 1973, to a person apprehending arrest under Rule 184
of the Defence and Internal Security of India Rules, 1971, the Court relied on the legislative history of
the provision and on the recommendations of the Law Commission and observations in the Law
Commission Report.

In Emperor v. Benoari Lal Sarma819, Rownand, J. observed:

Sen, J. ,has said in his judgement that it is not open to us to take into account historical facts or any
extraneous evidence either as to whether an emergency existed or whether the Governor General
had judged an emergency to have arisen.

But according to Lord Halsbury in Powell v. Kempton Park Racecourse Co., such topics as the history
of legislation and the facts which give rise to the enactment may usefully be employed to interpret
the meaning of the statute, though they do not afford conclusive argument.

In State of Travancore-Cochin v. Bombay Co. Ltd9, the respondents claimed exemption from sales
tax on the ground that their commodities to foreign buyers in CIF or FOB contracts were sales "in the
course of export of the goods out of the territory of India” within the meaning of Article 2860)(b) of
the Constitution. The High Court held in favour of the respondents. The Supreme Court confirmed
the Judgment, but observed:

The use made by the learned Judges below of the speeches made by the members of the Constituent
Assembly in the course of the debates on the Draft Constitution is unwarranted. That this form of
extrinsic aid to the interpretation of statutes is not admissible has been generally accepted in
England, and the same rule has been observed in the construction of Indian statutes. The reason
behind the rule was explained by one of us in A.K. Gopalan v. State of Madras10.; thus:

'A speech made in the course of the debate on a Bill would at best be indicative of the subjective
intent of the speak, but it could not reflect the inarticulate mental process lying behind the majority
vote which carried the Bill. Nor is it reasonable to assume that the minds of all the legislators were in
7
(1976) 4 SCC 572
8
AIR 1943 FC 36
9
AIR 1952 SC 366
10
AIR 1950 SC 27

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accord.

It is more tersely put in United States v. Trans-Missouri Freight Assn11:

'Those who did not speak may not have agreed with those who did; and those who spoke might
differ from each other.'

The rule of exclusion has not always been adhered to in America, and sometimes distinction is made
between using such material to ascertain the purpose of a statute and using it for ascertaining its
meaning. It would seem that the rule is adopted in Canada and Australia.

In State of Bihar v. Khas Karanpura Collieries Ltd 12, while holding that Section 30-A was inserted
retrospectively by Act 15 of 1958 in the Mines and Minerals (Regulation and Development) Act, 1957
and that it gave temporary immunity front the applicability of Sections 9(0 and 16(1) of the Act to
statutory mining leases until the Central Government by notification made the provisions applicable
with or without modification to such leases, the Court observed:

There can be no room for doubt that the legislature intended that Section 30-A of the 1957 Act
should cover the aforesaid statutory leases as well. It will be apposite in this connection to refer to
the statement of objects and reasons given in the Bill which sought to introduce Section 30-A in the
1957 Act with retrospective effect which can be usefully resorted to for ascertaining the true scope of
the section and the extent of the protection afforded by it.

The Explanatory Memorandum attached to the Rules, is in the nature of Statement of Objects and
Reasons, and may be referred to P.S. Mahal v. Union of India13:

“The aids which Parliament availed of such as the report of a special committee preceding the
enactment, existing state of the law, the environment necessitating the enactment of the legislation,
and the object sought to be achieved, are useful for deciphering the real intention of the Parliament

11
169 US 290 (1897)
12
(1976) 4 SCC 134
13
(1984) 4 SCC 545

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and therefore cannot be denied to the court.

Therefore, reports of the committee which preceded the enactment of legislation, reports of joint
parliamentary committees, report of a commission set up for collecting information leading to the
enactment are permissible external aids to construction."

Report of joint Select Committee on Bill to amend the Act was referred to see the object and
purpose.

In Narain Khamman V. Parduman Kumar Jain14., it was held that:

Though the Statement of Objects and Reasons accompanying a legislative Bill cannot be used to
determine the true meaning and effect of the substantive provisions of a statute, it is permissible to
refer to the Statement of Objects and Reasons accompanying a Bill for the purpose of understanding
the background, the antecedent state of affairs, the surrounding circumstances in relation to the
statute, and the evil which the statute sought to remedy.

In Bachan Singh v. State of Punjab15, it was observed that constitutional law raises, in a legal
context, problems of economic, social, moral and political theory and practice to which non-lawyers
have much to contribute. When judges are confronted by issues to which there is no legal answer,
there is no reason (other than a desire to maintain a fiction that the law provides the answer) for
judicial discretion to be exercised in a vacuum, immune from non-legal learning and extra-legal
dispute. The judges must also consider while deciding an issue of constitutional adjudication as to
what would be the moral, social and economic consequences of a decision either way.

In Special Reference No. z of 2002, Re, (Gujarat Assembly Election matter 16) the debates in the
Constituent Assembly on Articles 85 and 174 was looked into. Khare, J. (as the learned Chief Justice
then was) referred to Kesavananda Bharti17 cases in support of the proposition that the Constituent
Assembly Debates are permissible aids in construction to ascertain the intention of the Constitution.
The learned Judge observed as follows. One of the known methods to discern the intention behind
enacting a provision of the Constitution and also to interpret the same is to look into the historical
14
(1985) 1 SCC 1
15
(1980) 2 SCC 684
16
(2002) 8 SCC 237
17
(1973) 4 SCC 225

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legislative developments, Constituent Assembly al provision.

In Kesavananda Bharti v. State of Kerala, it was held that Constituent Assembly Debates although
not conclusive, yet show the intention of the framers of the Constitution enacting provisions of the
Constitution and the Constituent Assembly Debates can throw light in ascertaining the intention
behind such provisions. Reference to Constituent Assembly Debates in interpreting a Constitutional
provision: In Kesavananda Bharti v. State of Kerala, H.R. Khanna, J. observed that the speeches in the
Constituent Assembly can be referred to for ascertaining the history of the constitutional provision.

In Fagu Shaw v. State of W.B18 Bhagwati, J. observed: It was at one time thought that the speeches
made by the members of the Constituent Assembly in the course of the debates on the Draft
Constitution were wholly inadmissible as extraneous aids to the interpretation of a constitutional
provision, but of late there has been a shift in this position and following the recent trends in juristic
thought in some of the Western Countries and the United State, the rule of exclusion rigidly
followed in Anglo-American jurisprudence has been considerably diluted.

In Ashoka Kumar Thakur v. Union of India 19, while justifying the separate treatment given to
minority institutions on the basis of constitutional provision the Court observed that it is a settled
position that in statutory interpretation external aids have only a limited use.

18
1974) 4 SCC 152
19
(2008) 6 SCC 1

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CONCLUSION

The conception that the legislative history must be sternly adhered to barely has any advocates now
a days. It is just a tool and "aid" or "guide" as stated in Pepper v. Hart20 -“To better understand
ambiguous provisions”.

Now the discussion has thus swung towards ascertaining the significance given to it. There exist no
universal rules on the interpretation of legislative. It is, though, a worthwhile duty for legal
academics to examine the possibilities and confines of a hierarchical order of different legislative
materials, ranging from preparatory reports by expert panels to commentary by the Ministry.
Besides, judges and legal scholars should observe the detail process of how statutes are made in
order to be in a better position to consider their value 21.

So far as the Indian judiciary is concerned they have tried to clear the position of these external
sources by way of verdicts.

20
[1993] AC 593
21 35
Holger Fleischer, Comparative approaches to the use of Legislative History in Statutory Interpretation, 60
am. J. Comp. L. 401 2012

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BIBLIOGRAPHY

Statutes Referred
 Constitution of India, 1949

 Criminal Procedure Code, 1973

Articles Referred
 Fleischer, Holger, Comparative Approaches to the Use of Legislative History in Statutory
Interpretation, http://ssrn.com/abstract=1920184
 Kenneth R. Dortzbach, Legislative History: The Philosophies of Justices Scalia and Breyer and
the Use of Legislative History, http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?
article=1486&context=mulr
 http://ijtr.nic.in/articles/art21.pdf
 http://www.lawyersclubindia.com/articles/Interpretation-of-Statute5430.aUwTmSwSN
 http://www.nhs.vic.edu.au/library/legaldate/LegalDate_Vol_19_No_2_May_2007.pdf
 http://caaa.in/Image/Interpretation%20of%20Statutes.pdf

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