Purposive Rule Of Interpretation: A conspicuous veil to judicial overreach in quest of

Legislative Intent

“The judicial whistle needs to be blown for a purpose and with caution” is a discernible
thought provoking quotation once made by the then Chief Justice of India Justice A.S
Anand.1 Judges often with their sterling intellect interpreted the ‘words’ of the legislatures,
seldom bulwarking the constitution and sometime encroaching into the arena of legislatures
using the legislature’s intent as cat’s paw. The caution which justice Anand envisages is
regarding the fact that the functus officio nature of legislatures staves off judges to interact
with the then law-making body which passed the statue and which needs to be interpreted by
the judiciary.2

Rules of interpretations are used to equip a particular statute to serve the purpose of its
enactment. However, words of statutes are not crystal clear, rather plasticine and can be
moulded to give various meanings. 3 The modus operandi followed to mould the words is
called ‘interpretation’.4 This article fixes its focal length only on the purposive rule of
interpretation which is used to give a statute its legislature’s intent. However, to do so,
judiciary needs to teleport itself into the mind of the legislatures, which sounds superfluous,
but sometime it happens by way of doctrines such as the doctrine of contemporanea
expositio.

The concept called ‘legislative intent’ or making a particular law eloquent enough so as to
serve its purpose is itself debatable. Randin-Landin debate is one of the foremost and most
contentious debates regarding legislature intent. According to Max Radin, it’s arduous to
discover the intent of legislatures and thus suo moto he condemns doctrine such as
constemporanea expositio and interpretations which uses external aids.5 On the other hand,
Landin grappled to it by classifying ‘intent’ itself into ‘intended meaning’ and ‘intended
purpose’, claiming the former to be more achievable using external aids. 6 The debate got

1
Dr. N.R. Madhav Menon, Parliament and the Judiciary, THE HINDU ( September 26, 2004)
https://www.thehindu.com/2004/09/26/stories/2004092600481600.htm
2
Dr Elbe Peter, Contemporanea expositio est optima et fortissinia in lege, LEGAL SERVICE INDIA
(http://www.legalservicesindia.com/article/1666/contemporanea-exposito-est-optima-et-fortissinia-in-lege.html )
3
Seaford Court Estates ltd. v. Esher , 2 , ALL ER, 155 (CA), 164(1949)
4
(for the purpose of this article, the term interpretation and purposive interpretation is used interchangeably) See
ANASTASIOS GOURGOURINIS, The Distinction between Interpretation and Application of Norms in
International Adjudication, 2 JNLIDS 31, 31-35 (2011)
5
Max Radin, Statutory Interpretation, 43 HARV. L. REV. 863 (1930).
6
James Landis, A Note on ‘Statutory Interpretation’, 43 HARV. L. REV. 886 (1930).
 Purposive Rule Of Interpretation: A conspicuous veil to judicial overreach in quest of
Legislative Intent

gridlocked to some extent when Richard Nunez provided a three head classification of
legislative intent, but still the Randin-Landin remains one of the most critiqued.7

If it is reckoned that legislative intent is somehow garnered still one intrigues regarding its
objectivity. While crafting a statute there are chromatic opinions and it is execrable to hold
that purposive rule of interpretation along with external aids can bring all the intents within
its realm.8 The interpretive drill is such that its suo moto gets clouted by the subjective
experience of the interpreter and thus the objective of attaining a holistic legislative intent
may not satiate.

The shades of subjectivity while using purposive interpretation is ineluctable because the
modus operandi subsumes ‘discretion’ (of the court) as one of the tenets of interpretation. 9
Language, purpose and discretion make the facet of interpretation. Language sets the
amplitude within which the interpreter is to act as a linguist following which the best
meaning is to be given from the corps d'elite of words provided by the language. Thus the
semantics boundary precludes the interpreter to go beyond the legal meaning of the text and
the discretion serves the sole act of giving the subject its true meaning, suo moto sufficing the
purposive tenet. Hence, the subjectivity of interpreter gets transparentized while meeting the
discretionary part.10

Dr. Hari Prakash v. All India Institute of Medical Science 11 is one of the cases where the
judiciary overreached in pursuit of purposive interpretation. In Hari Prakash, the HC needed
to interpret the denotation of the word ‘university’ as mentioned in section 3(d) of The
Dentist Act, 1948.12 HC in pursuance of extracting purposive interpretation referred to
various dictionaries while interpreting the meaning of the word ‘university’. Section 3(d) of
the Act read as ‘university established by law’ and not solely ‘university’ thus HC was
erratum while deriving the meaning suo moto disgruntling it. While overruling the HC’s
judgement, the SC in Dental Council of India and Another v. Hari Prakash and Others13 held

7
Sreyan Chatterjee, An Analysis of the Scope of Judicial Overreach in the Context of Legislative Intent, 3
CULJ 31, 33-35 (2014)
8
Dr. Justice B.S. Chauhan, The Legislative Aspect of the Judiciary: Judicial Activism and Judicial Restraint,
TAMIL NADU STATE JUDICIAL ACADEMY, http://www.tnsja.tn.gov.in/article/BS%20Chauhan
%20Speech-%20Lucknow.pdf
9
Shailesh Dhairyawan vs Mohan Balkrishna Lulla, (2016) 3 S.C.C. 619 (India)
10
AHARON BARAK, PURPOSIVE INTERPRETATION IN LAW 25 (Sari Bashi, 2005)
11
Dr. Hari Prakash v. All India Institute of Medical Science, (2001) AIR Del 296 (India)
12
The Dentist Act, 1948, No. 16, Acts of Parliament, 1948 (India)
13
Dental Council of India and Another v. Hari Prakash and Others (2001) 8 S.C.C. 61((India)
 Purposive Rule Of Interpretation: A conspicuous veil to judicial overreach in quest of
Legislative Intent

that ‘what is not included by the legislature cannot be undone by us by adopting the principle
of purposive interpretation’.14 Hence the mandate conspicuously depicts that the zeal of
purposive interpretation for deciphering legislative intent could produce bizarre results.

The voluminous fiasco tumbles upon when we trace the cases regarding the appointment and
transfer of judges and interpretation of provisions of constitution regarding this. The first case
was Samsher Singh v. State of Punjab15 where it was held that the consultation of the CJI with
the president regarding appointments and transfers is peremptory, and if any incongruity is
spotted it would bring the judiciary to inspect the presence of any supervenient acts which led
the executive to not abide by the counsel of CJI.

However, a total antipodal view was taken in S.P. Gupta v. Union of India 16, also known as
the First judges case which held that the term ‘consultation’ mentioned in Article 124 17 and
article 21718 gave ascendance to the executive. The perturbation commenced with the
initiation of the Supreme Court Advocates-on-Record Association and Anr. v. Union Of
India19 case, also known as The Second Judges Case which struck down the Frist Judges Case
and court adhered to Himatlal Seth20 and Samsher Singh21 position whereby the primacy is
vested with the judiciary. In 1998, an advisory opinion to the president by the SC led to the
Third Judges Case which was envisioned to set an ultimate gridlock. The Third Judges Case
too, held that the primacy lies with the judiciary and the ‘last word’ should be of the CJI.22

The whole on-going advisement and judgments had a concerted approach regarding
delegation of the primacy to the executive since it would imperil the independence of
judiciary which is a basic structure of the constitution. While explicating the judicial
overreach in the above cases the dissenting judgement of Justice Chelameswar in the NJAC 23
judgment becomes tectonic. He held that the constituent assembly was cagey enough to elude
the lodgement of unbridled decision making capacity on a single entity regarding
14
Dental Council of India and Another v. Hari Prakash and Others (2001) 8 S.C.C. 61((India)
15
Samsher Singh v. State of Punjab (1974) 2 S.C.C. 831 (India)
16
S.P. Gupta v. Union of India (1982) 2 S.C.R. 365 (India)
17
INDIA CONST. art. 124
18
INDIA CONST. art. 217
19
Supreme Court Advocates-on-Record Association and Anr. v. Union Of India (1998) 7 S.C.C. 739 (India)
20
Union Of India vs Sankal Chand Himatlal Sheth (1978) 1 S.C.R. 423 (India)
21
Shamsher Singh & Anr vs State Of Punjab (1975) 1 S.C.R. 814 (India)
22
In re Special Reference 1 of 1998 v. Unknown (1998) 7 S.C.C. 739 (India)
23
Supreme Court Advocates-on-Record Association and Anr. v. Union Of India (2016) 5 SCC 1 (India)
 Purposive Rule Of Interpretation: A conspicuous veil to judicial overreach in quest of
Legislative Intent

appointments of higher judiciary. The inclusion of the word ‘consultation’ was a hyper-
intelligent move to conduce ‘checks and balances’ which itself is the basic structure of the
constitution due to which the assembly avoided the word ‘concurrence”.24

The Second Judges Case while demystifying the word ‘consultation’ pursued purposive
interpretation to find the legislative intent and thus referred to debates of the constituent
assembly and other historical tenets.25 While referring, it was limpid that the assembly didn’t
want any kind of primacy over one another. If the assembly had such intent it would have
superseded the word ‘consultation’ with ‘concurrence’. While the SC vindicates that it never
interpreted ‘consultation’ as ‘concurrence’ how can the same institution bring upon the theory
of primacy resulting into contradiction in adjecto.

The Third Judges Case was expected to put a clog was criticized and resulted in a fiasco
which led to some of the decision such as Shanti Bhushan26 and P.D. Dinakaran27 as a result
of which the constitution faced the 99 th Amendment.28 The same conjecture of primacy of
CJI was raised in the NJAC29 case while interpreting the legislative intent; however
Chelameswar in his dissent concluded that the intent was always to preclude the appointment
of a deficient candidate. Hence, even if the Law and Justice Minister in the collegium are
held to be influenced by the legislature still one eminent member and one judicial member
could stall the appointment.30 Thus in pursuance of legislative intent the judiciary
overreached in quest of giving primacy to the CJI over the appointments along with
undermining the populus electus and depicting the CJI is exclusively vested with the job of
upholding the constitution.31

Justice A.K Goel interpreted ‘consultation’ borrowing the theme of independent judiciary 32
and following the three basic tenets of purposive interpretation 33 it’s difficult to consider how
the word ‘consultation’ widens its semantics so as to bring in above mentioned themes.
24
Supreme Court Advocates-on-Record Association and Anr. v. Union Of India (1998) 7 SCC 739 (India)
25
Supreme Court Advocates-on-Record Association and Anr. v. Union Of India (1998) 7 S.C.C. 739 (India)
26
Shanti Bhushan & Anr v. U.O.I & Anr (2009) 1 S.C.C. 657 (India)
27
P.D. Dinakaran v. Judges Inquiry Committee (2011)1 S.C.C. 380 (India)
28
India. Const. amend 99th
29
Supreme Court Advocates-on-Record Association and Anr. v. Union Of India (2016) 5 SCC 1
30
Supreme Court Advocates-on-Record Association and Anr. v. Union Of India (2016) 5 SCC 1
31
Arun Jaitley, The NJAC verdict: An alternative view, BUSINESS STANDARD (Oct. 24, 2015, 9.47 PM),
https://www.business-standard.com/article/opinion/the-njac-verdict-an-alternative-view-115102400934_1.html
32
Supreme Court Advocates-on-Record Association and Anr. v. Union Of India (2016) 5 SCC 1

33
AHARON BARAK, PURPOSIVE INTERPRETATION IN LAW (Sari Bashi, 2005)
 Purposive Rule Of Interpretation: A conspicuous veil to judicial overreach in quest of
Legislative Intent

Furthermore, Lord Denning while investigating purposive interpretation in Seaford Court

Estates ltd. v. Esher34 stated that “A judge should ask himself the question how, if the makers
of the Act had themselves come across this ruck in the text of it, they would have straightened
it out?” hence, following Lord Denning, it is arduous to hold whether the constituent
assembly too would have given similar interpretation.

Conclusively, it can be drawn out that Justice A.S Anand was sagacious while mentioning the
need for a ‘caution’ while blowing out the judicial whistle. 35 Judicial activism can be prolific
only when it is percolated through a proper filtration or else it would vehemently amount to
overreach. Purposive interpretation turns out to be conceivable only when the interpreter
abides by the rules of it,36whereas jettisoning it in pursuance extrapolating legislative intent
would amount to Judicial Overreach. Thus it is appositely verbalized by Justice Chelameswar
that “the remedy is not to deny grant of power but to structure it so as to eliminate potential
abuse of it37” portraying that theories such as purposive interpretation bestowing enough
autonomy to the judiciary should be bolstered provided that the layout should be such so as to
eschew the obloquy of the judiciary leading to overreach whereby it is expected that the same
would be achieved sooner than later.

34
Seaford Court Estates ltd. v. Esher , 2 , ALL ER, 155 (CA), 164(1949)
35
Dr. N.R. Madhav Menon, Parliament and the Judiciary, THE HINDU ( September 26, 2004)
https://www.thehindu.com/2004/09/26/stories/2004092600481600.htm
36
Shailesh Dhairyawan vs Mohan Balkrishna Lulla, (2016) 3 S.C.C. 619 (India)
37
Supreme Court Advocates-on-Record Association and Anr. v. Union Of India (2016) 5 SCC 1