Lecture 1 and 2

Importance and need of Interpretation of statues

The essence of law lies in the spirit, not in its letter, for the letter is significant only as
being the external manifestation of the intention that underlies it.” - Salmond

 The term ‘Interpretation’ is derived from Latin term ‘interpretari’ which means to
explain or to understand or translate. Interpretation is a process through which one
ascertains the true and correct intention of the law-making bodies as is laid in the
form of statutes.
 As the administration of justice is conducted by the judges in accordance with the
provisions of law, therefore it requires that there are certain rules of interpretation to
ensure that just and uniform decisions are delivered by them. The most important
objective that is achieved by the interpretation of statutes is that it ensures that the
court act according to the intent of the legislature.
 Salmond defines interpretation as “Interpretation or construction is the process by
which the courts seek to ascertain the meaning of legislation through the medium
of the authoritative form in which it is expressed.”
 Interpretation is the primary function of the judges. There are three wings of a
Government: Legislature, Executive and Judiciary. It is the legislature which lays
down the laws but it is judiciary which puts the law into operation or in use. There
arises need for the judges to ascertain the correct meaning of the law laid by the
legislature.
 The courts are expected not to act arbitrarily and consequently they are to follow the
rules of interpretation. It is basically finding out the true sense of any form of words
that is the sense the author intended to convey, and of enabling others to derive from
them the same idea which the author intended to convey.
 There are three categories of reasons in general for why statutes need to be
interpreted:
(1) drafting errors
(2) changed circumstances and
(3) incomplete rules
 the word ‘statutory interpretation’ is a word that we automatically connect with the
legal field of studies. It is the application of legislation and interpretation of courts
 when a statute involved.

 These words are often a simple description of the law but there are times when the
complications of the words can meddle with the judgment passed and hence the judge
is left on his own to interpret it. Hence judges use certain techniques to interpret such
laws. A few techniques include traditional canons of statutory interpretation,
legislative history and purpose. In common law, the judiciary applies the laws to
delegated legislation and legislation enacted by the legislature.
 Complex nature of the statute after being subjected to changes can result in
vagueness. This can result in the need for correct interpretation
 Anticipating every possible version of a particular case can result in incoherence and
such gaps in the law demand a right interpretation of the law.
 The use of certain words can lead to mistakes and the parties might utilize the various
meanings to their advantage and it becomes the liability of the court to interpret the
right meaning for further use.
INTERPRETING THE STATUTES

 Interpretation of something means ascertaining the meaning or significance of that

thing or ascertaining an explanation of something that is not immediately obvious.
Construction and Interpretation of a statute is an age-old process and as old as
language.
 Interpretation of statute is the process of ascertaining the true meaning of the words
used in a statute. When the language of the statute is clear, there is no need for the
rules of interpretation. But, in certain cases, more than one meaning may be derived
from the same word or sentence. It is therefore necessary to interpret the statute to
find out the real intention of the statute. Interpretation of statutes has been an essential
part of English law since Heydon's Case in 1854 and although it can seem complex,
the main rules used in interpretation are easy to learn. Elaborate rules of interpretation
were evolved even at a very early stage of Hindu civilization and culture. The rules
given by ‘Jaimini’, the author of Mimamsat Sutras, originally meant for srutis were
employed for the interpretation of Smritis also. (Law Commission of India, 60th
Report, Chapter 2, para 2.2).
 The concept of interpretation of a Statute cannot be static one. Interpretation of
statutes becomes an ongoing exercise as newer facts and conditions continue to arise.
  We can say, interpretation of Statutes is required for two basic reasons viz. to
ascertain:
• Legislative Language - Legislative language may be complicated for a layman, and
hence may require interpretation; and
• Legislative Intent - The intention of legislature or Legislative intent assimilates
two aspects:
i. the concept of ‘meaning’, i.e., what the word means; and
ii. the concept of ‘purpose’ and ‘object’ or the ‘reason’ or ‘spirit’ pervading through
the statute.
 Necessity of interpretation would arise only where the language of a statutory
provision is ambiguous, not clear or where two views are possible or where the
provision gives a different meaning defeating the object of the statute.
 If the language is clear and unambiguous, no need of interpretation would arise. In
this regard, a Constitution Bench of five Judges of the Supreme Court in R.S. Nayak
v A.R. Antulay, AIR 1984 SC 684 has held: “… If the words of the Statute are
clear and unambiguous, it is the plainest duty of the Court to give effect to the
natural meaning of the words used in the provision. The question of construction
arises only in the event of an ambiguity or the plain meaning of the words used
in the Statute would be self defeating.” (para 18)
 Again Supreme Court in Grasim Industries Ltd. v Collector of Customs, Bombay,
(2002)4 SCC 297 has followed the same principle and observed: “Where the words
are clear and there is no obscurity, and there is no ambiguity and the intention of
the legislature is clearly conveyed, there is no scope for court to take upon itself the
task of amending or altering the statutory provisions.” (para 10)
 The purpose of Interpretation of Statutes is to help the Judge to ascertain the intention
of the Legislature – not to control that intention or to confine it within the limits,
which the Judge may deem reasonable or expedient.

Lecture 2

Introduction

It has been long understood that a statute is the edict of the Legislature.[1] However, the
extent to which the legislature’s intent shapes the understanding and implementation of a
statute is indeterminate. The binding value of legislative intent varies with time as well as
across jurisprudences. In India, in a time where judicial activism is hailed as the protective
force behind the rights of the citizenry, it becomes necessary to evaluate the role of legislative
intent in statutory interpretation. In this paper, we propose to holistically address certain
questions pertaining to the judicial trends in encompassing legislative intent; by importing
American academic criticism of the same.

Firstly, we attempt to fully conceptualize the definition, scope and usage of legislative intent.
Secondly, we put forth two arguments in criticism the theoretical foundation of legislative
intent. Thirdly, based on these discrepancies we examine how courts in India have expanded
their reach by interpreting statutes in a manner not necessarily in keeping with the ideal of
legislative intent. Finally, based on the above considerations we conclude the legislative
intent has lost its significance in modern Indian jurisprudence.

This paper will not be in the nature of a value judgement or a critique of judicial activism or
judge made law. Rather, it shall remain an objective analysis of current trends of
interpretation of statutes. The paper, in order to be conclusive will require a meticulous
analysis of judicial interpretation and its notional limits; however this shall not be the
author’s main focus.

Research Questions

1. What is legislative intent?

2. How and why is legislative intent used as a method of statutory interpretation?

3. How persuasive is the intent of the legislature in the interpretation of a statute?

4. Has judicial activism transgressed the prescribed boundaries of legislative intent?

C. Analysis

Usage

(1) Definition and Determination

Before delving into how and when legislative intent is used in statutory interpretation, it is a
necessary precursor to define exactly what the term implies. It is also necessary to understand
how such intent can be gauged and where it is derived from. Legislative intent as such is
nothing more than the purpose the legislature had in mind as to the meaning and implication
of the words of a statute while framing it. In general the purpose behind framing any statute is
to curb some public evil or effectuate some public benefit.[2] With this in mind, the
legislature is presumed to garner certain meaning to the words of a statute. A statute must be
rendered in accordance with such meaning.

The intention of the legislature is essentially constructed of two aspects: the concept of
meaning and the concept of purpose and object. The former connotes an understanding
derived from the literal meaning of the words of a statute. The latter points to the spirit and
reason pervading through the statute.[3] The courts have to keep these aspects in mind while
reading a statute; and are aided in this task by certain sources of legislative intent. These
popularly include:[4]
1. The text of the statute as proposed to the legislature.
2. Proposed amendments to the statute, whether accepted or rejected, with reasons thereof.
3. The record of hearings on the topic.
4. Legislative records or journals.
5. Speeches and parliamentary debates made prior to the vote on the bill.
6. Legislative subcommittee (such as Standing Committee) minutes, factual findings, and/or
reports
7. Other relevant statutes that can be used to understand the definitions in the statute on
question; for example the General Clauses Act, 1897.
8. Other relevant statutes which indicate the limits of the statute in question; such as previous
statutes on the same matter.
9. Legislative files of the executive branch, such as the governor or president.
10. Case law prior to the statute or following it which demonstrates the problems or issues the
legislature was attempting to tackle with the statute.
11. Constitutional determinations (Would Congress still have passed certain sections of a
statute had it known about the constitutional invalidity of the other portions of the
statute?)
12. Legislative intent, which is the reason for passing the law

(2) Application

A statute is to be constructed according “to the intent of them who make it” [5] and “the duty
of is the judicature is to act upon the true intention of the legislature”.[6] While this is true,
the application of legislative intent only occurs as a secondary concern, i.e., if a statutory
provision is open to more than one interpretation the court has to choose that interpretation
which represents the true intention of the legislature.[7] It is a well established rule that
legislative intent comes into play only if the literal rendering of a statute leads to ambiguity or
injustice. The Supreme Court of India has called this formulation the “cardinal rule of
construction”.[8] It is accepted in traditional pedagogy that legislative intent is binding on the
courts in case of ambiguity and forms the basis of statutory construction.

Reasons for Doubt

Over the years, legislative intent has lost its concrete position as the touchstone of statutory
interpretation. Judges more often than not try to give more expansive definitions to legislative
provisions in tone with a modern, liberal judicial outlook. At one extreme point of view,
Justice Scalia of the American Supreme Court is famous for being intolerant of the invocation
of intent in any argument.[9] In India, there has not been any explicit judicial questioning of
the power or place of legislative intent. This makes it all the more important to set out on an
academic pursuit to determine the various reasons to doubt the binding value of legislative
intent.

(1) Group Intention

It is nearly impossible in today’s political set up to confidently and conclusively

conceptualize intent. The legislature itself is a body generally comprising of two (in case of a
bicameral system) or more houses, which are in turn composed of individuals from different
political parties harbouring different- often conflicting- political ideology. How then can
there ever be a single intent behind the provisions of a statute? This here is the first
impediment in the use of legislative intent as a tool of interpretation. It is necessarily a fiction
created by the judiciary and not a meaning bequeathed by the legislature. It is well known
that the legislature becomes functus officio as soon as the enacting process comes to an end.
[10] The legislature itself cannot interpret the statute it bore into existence. Thus, legislative
intent is nothing more than a fiction representing the attitudes of judges in arriving at a
solution by striking a balance between the letter and spirit of the statute without
acknowledging that they have in a way supplemented the statute.[11]

While this is the practical impediment voiced by critiques of the tool of intent, many scholars
have also expressed a more philosophical reservation.[12] These scholars primarily object to
the use of legislative intent to interpret a statute because it necessarily involves an indirect
reference to the individual intentions of a disparate set of politicians. A group does not have a
mind, the argument goes, and so it cannot form intentions any more than it can form beliefs
or adopt attitudes. Therefore, legislative intent is a species of group intention and cannot truly
exist.[13] Radin states:

“The least reflection makes clear that the law maker, der Gesetzgeber, le législateur, does not
exist, and only worse confusion follows when in his place there are substituted the members
of the legislature as a body. A legislature certainly has no intention whatever in connection
with the words which some two or three men drafted, which a considerable number rejected,
and in regard to which many of the approving majority might have had, and often
demonstrably did have, different ideas and beliefs”.[14]

Dworkin in fact questions if there can be any intent at all in legislative discourse. He argues
that the purpose of a statute is shaped by parliamentary discourse. Such discourse is
essentially an exercise in cooperation. Thus, individual legislators do not have an open choice
as to what a statute is meant to do. Dworkin notes; “legislators are not like independent
novelists but are instead authors of a text they did not choose alone”.[15] They cooperate to
formulate legislation and no one legislator is free to stipulate what the statute shall mean or
do. Legislators will cooperate to form and adopt statutes, and their intentions with respect to
statutes will be shaped and limited by that cooperation.

An individual’s view may always be attributed to that of a group. However, unless the system
is inherently hierarchical such an attribution is impossible. The legislative is not an oligarchic
or hierarchic institution, moreover in bicameral system to conclusively garner a single intent
one will have to hold one house over the other. It is very tempting to attribute the intention of
the legislature to the intent of the majority decided based of a system of dialogue and voting.
However, voting is merely a procedural mechanism in order to settle disputes. The purpose of
the law itself is not the subject of the vote, rather its requirement is. Thus, it is the legislature
as a whole which decides to frame a particular statute; the majority has no authority to
legislate.[16]

Thus, sceptics find two major issues with legislative intent, that it is impossible to attribute an
intent to the legislature and second that it is essentially the judge’s own point of view that is
reflected as ‘intent’. If this is true, it significantly dilutes the potency of legislative intent as a
method of ascertaining what a statute is meant to represent. How can we talk about binding
value of intent when it is itself a flimsy construct? Perhaps, in the interest of separation of
powers, we should question whether at all legislative intent should find a place as a principle
of statutory interpretation?

(2). Constitutional Legitimacy

The question of Constitutionality has often come up in dialogue regarding the use of
legislative intent as a tool of construction.[17] This line of argument is not popular in India
however the same can be attributed to the lack of scholarly debate on legislative intent as a
subject. However, at this juncture I wish to put forth my contention on the lack of
constitutional validity of legislative intent.

Firstly, the argument is that the primacy of intent would violate the rule of law, because the
meaning of statutes would not be evident from the public terms of the statutory text.[18] The
legislature’s prerogative extends to passing statutes and not to forming intentions. Their
intention cannot be held above the text of the law. Thus, while parliament may make any law
it chooses, it must do so by adopting a clear text to that effect. It cannot change the law by
forming intentions, but must instead enact statutes.[19] Once again, Justice Scalia has
famously endorsed the view that what should be binding is the rule of law and not the rule of
legislation and definitely not the rule of legislators.[20]

Secondly, the question arises as to who is to decide the pervasive extent of legislative intent?
Is it the judiciary or the legislature? Experience shows that the legislative intent is used only
in cases of ambiguity or injustice. There must be some conflict or confusion in the
understanding of the concerned statute. In such a situation, procedure dictates that the court
look into the intent of the legislature. This is akin to saying that the judiciary does not
exercise the requisite competence to resolve ambiguities on its own. The court itself must
have an understanding of the effect the law must have, or what it was “intended” to cure. This
is in fact the basis of the mischief rule of interpretation.

Thirdly, even if the opinion of the legislative is to be considered, it should be at the

judiciary’s discretion. The doctrine of separation of powers is very clear that it is the
Judiciary’s job to interpret and the Legislature’s job to frame laws. As mentioned earlier, the
legislature becomes functus officio as soon as a statute is passed. Thus, endowing legislative
intent with any sort of binding value is contradictory to separation of powers. This doctrine
has found great significance in India, with the Apex Court even adopting it as part of the
basic structure.[21] This means that the prescribed compulsory use of legislative intent is
directly in violation of the Constitution of India.

(3) Judicial Activism as a Challenge to Legislative Intent

It is evident now as to how courts often dismiss legislative intent or invoke it only when
convenient. This is also indicative as to how judicial activism- though criticized- has not been
challenged. Scholars and practioners are themselves not clear as to the value of legislative
intent and are thus unable to stipulate unambiguous contours to its application.

The accusation is that the judiciary has usurped the power to legislate by going beyond the
text of the law and applying its own “brand” of justice. Perhaps the most blatant exercise of
judicial process is the continuous expansion of Article 21 of the Constitution of India. Once
restricted to purely the life and limbs of a person; today Article 21 protects everything from
the environment[22] to the livelihoods of people.[23] The introduction of public interest
litigation, is another such example where the locus standi to institute a case has been
significantly diluted.[24]

One may always argue that a majority of the steps taken by the Judiciary in assuming its
activist role have been positive, progressive and in support of the general public. However,
the question of benefit is not pertinent. Regardless of one’s stance on the issue of judicial
activism, it is widely accepted that it can be exercised only by virtue of a transgression of
legislative intent.[25] The question then arises to what extent can legislative intent bind the
judiciary?

We shall answer this question with the help of an illustration. Article 21 specifically
prescribes the usage of a “procedure established by law”; nowhere is the phrase “due
process” mentioned. Yet, in the case of Menaka Gandhi v. Union of India,[26] the Supreme
Court introduced due process into Indian constitutional jurisprudence. As the story goes, “due
process” was explicitly excluded from the text of Article 21. Was the judiciary equipped with
the power to do so? In the aforementioned case, the Court did not even delve into the
principles of construction; legislative intent was completely ignored.

Another blatant example of such unrestrained interpretation would be Justice Ramaswami’s

opinion in Madhu Kishwar v. State of Bihar.[27] Here, the learned judge felt that the phrase
“male descendents” used in the Chotta Nagpur Tenancy Act, 1908 should include female
decedents as well. He further opined that the Hindu Succession Act, 1956 and Indian
Succession Act, 1925 should be extended judicially to apply to schedule tribes to ameliorate
the condition of females. Significantly, the majority opinion did not act upon these
suggestions and took a conventional approach, advocating the requirement of restraint. This
case however, is indicative of how judges feel- perhaps rightly so- that they have the power
to transgress the binds of legislative intent.[28]

Another, famous example is the tussle between the legislature and the judiciary regarding
divorce under Muslim law. Following the judgment in Mohd. Ahemed Khan v. Shah Bano
Begum[29]– which expanded the right of Muslim women to maintenance- the Parliament
enacted the Muslim Women (Protection of Rights in Divorce) Act, 1966. This Act was meant
to undo the decision in Shah Bano which garnered harsh criticism and dissatisfaction from
the Muslim community. However, in the subsequent case of Daniel Latifi v. Union of India,
[30] the Supreme Court completely ignored the evident intent behind the Act and interpreted
it in a manner as to be in consonance with its previous judgment.

Based on these examples, we can conclude that the binding nature of legislative intent has
now been restricted to theory. The Judiciary has disregarded it as an antiquated canon of
construction and in fact legislative intent has been diluted to “judicially developed equity”.
[31]

Conclusion

In this paper, we have not delved into the question as to whether a restriction of legislative
intent is valuable. This would entail a further and disjunct analysis. We have attempted to use
American Academic Literature and apply its advances to the Indian scenario in order to
determine whether or not legislative intent is specifically complied with in modern Indian
jurisprudence.

We have described the origin and application of Legislative intent as a tool used for statutory
construction. In my substantive sections, we have laid out a two-fold argument as to why
legislative intent stands on shaky ground. Finally, we have depicted the ease with which such
intent has been transgressed in India. In light of these assertions, we have concluded that
legislative intent, in practice does not in fact bind judicial decisions. Its application extends
merely as a persuasive aid. The judiciary has decided for itself whether or not to invoke the
intent of the legislature. Further, such invocation is inconsistent and sporadic.
Can Judges legislate

This week’s judgment of the Supreme Court in Social Action for Manav Adhikar vs Union
of India by a three-judge bench relating to Section 498A of the Indian Penal Code on
dowry harassment raises two important questions:

1. Can judges legitimately legislate?

2. If they can, are there any limits to judicial legislation, and if so, what are they?

The judgment reversed the court’s earlier dilution of the powers of the police to act against
husbands accused of harassing their wives.

Classical positivist jurisprudence created by the 19th century English jurists Bentham and
Austin, and developed in the 20th century by Hart, Kelsen and others, taught that law
making is the task of the legislature, not the judiciary. The latter’s job is only to interpret
the law made by the legislature, and direct its enforcement.

In England, this principle was strictly enforced because there was no written constitution,
and parliament was supreme. Hence law making by judges would violate the principle of
parliamentary supremacy. Thus, in Magor and St Mellons RDC vs Newport
Corporation, the House of Lords overruled the decision of Lord Denning in the Court of
Appeals, holding it to be “a naked usurpation of legislative powers”.

But sociological jurisprudence, created in Europe towards the end of the 19th century by
Jhering, Geny, Duguit etc and developed in the United States by Roscoe Pound and others
said that judges can, and in fact do, legislate. The ‘realist school’ in the US of Gray, Frank
and Llewelyn went to an extreme, and said that the only real law was judge made law,
while statutes by the legislature were only the raw material which a judge uses to make
law.

My own view is that ordinarily judges should not legislate, though in exceptional cases
they can.

When I became a judge of the Supreme Court, I was deeply concerned about the
widespread tendency of some judges not to exercise restraint and instead make laws and
exercise functions belonging to the executive. Some judges were issuing directives on how
the Yamuna river was to be cleaned up, others on the building of an abattoir in Delhi, yet
others making rules for admissions to nurseries in Delhi schools, others dealing with the
monkey and cattle menace, and laying down speed limits for vehicles, etc all of which I
regarded to lie exclusively in the legislative or executive domain. The judiciary neither had
the technical or administrative expertise nor the financial resources for this.

For instance, in one case, the Supreme Court ordered the linking up of all the rivers in
India. However well intentioned this order may have been, it was, in my opinion uncalled
for, and in fact unimplementable. It envisages linking 30 major rivers in India, and is
estimated to have financial implications of Rs 11 lakh crore (i.e. $168 billion). There may
be insuperable technological and administrative difficulties in giving effect to it. And
many state governments may not agree to it.

So in Divisional Manager Aravali Golf Course vs Chander Haas , a bench of Justice A.K.
Mathur and myself wrote a detailed judgment saying that there is separation of powers in
the constitution between the three organs of the state, and one organ should not ordinarily
encroach into the domain of another, otherwise there will be chaos. Of all the three organs
of the state, it was only the judiciary which can define the limits of all three. This great
power must therefore be exercised by the judiciary with the utmost humility and self
restraint.

In Rajesh Sharma vs State of UP , a two-judge bench of the Supreme Court held that
section 498A IPC was being grossly misused by vindictive wives, and so it issued eight
directives to prevent this. The very first directive was that in every district in India a
family welfare committee should be set up by the District Legal Service Authority, and all
complaints under section 498A should be referred to it, and no arrest should be made
before receiving its report.

There is no law for setting up such family welfare committees. How could the court create
it? As observed in District Manager, Aravali Golf Course, “If there is a law, judges can
certainly enforce it, but judges cannot create a law and seek to enforce it “.

Hence in Social Action for Manav Adhikar, the three-judge bench rightly set aside the
above mentioned directive of the two-judge bench. It also set aside the directive
empowering district judges to quash proceedings under Section 498A when the parties had
reached a compromise, since section 498A is a non compoundable offence.

What about the other directives in Rajesh Sharma, which were upheld in Social Action for
Manav Adhikar? They too are legislative in nature, but they merely protected the right to
liberty guaranteed by Article 21 of the constitution of India, and they merely followed
earlier decisions of the court, to which I think no exception could be taken.

Thus, in Joginder Kumar vs State of UP , the Supreme Court directed that arrests should
not be done in every case disclosing a cognizable offence. In Arnesh Kumar vs State of
Bihar, it ordered that arrest in cases under Section 498A IPC should only be done in
exceptional cases and for reasons to be recorded in writing. In Lalita Kumari vs State of
UP, it held that if the complaint to the police did not disclose a cognizable offence, the
police must make a preliminary enquiry before registering the offence under section 498A.
In D.K.Basu vs State of West Bengal, it prescribed certain procedural safeguards before
making an arrest (like the US Supreme Court judgment in Miranda vs Arizona). All these
directives were given to prevent misuse of Section 498A, and to protect the right to liberty
guaranteed by Article 21 of the constitution. Hence in my opinion they were legitimate
judicial legislation.
Apart from judicial legislation being permissible to fulfil constitutional rights, in my
opinion it would also be legitimate if it is done to create a norm which is essential for
society for its smooth functioning at a particular stage of its historical development, and
for some reason the legislature is unwilling or unable to create it. Let us consider some
examples.

In modern society, the right of a woman to have sex without having pregnancy is a basic
right. Often people do not want to have more than one or two children because a lot of
money is required for raising children properly. So it is necessary to practise
contraception.

In Ireland there was an archaic law against the sale and use of contraceptives because
Ireland is a Catholic country, and the Catholic Church is against the use of contraceptives.
Irish politicians were unwilling to bring a bill in the Dail to repeal this antiquated law, out
of fear that if they did, the Catholic Church would use its enormous influence to destroy
the political careers of such politicians. The law was challenged in 1973 before the Irish
Supreme Court in McGee vs Attorney General and the court struck it down on the ground
that it was against the right to privacy. Now there is no mention of any right to privacy in
the Irish constitution. The court created this right by a judicial verdict.

Similarly, the US Supreme Court in Griswold vs Connecticut struck down a law in the
state of Connecticut against the sale and use of contraceptives on the ground that it
violated the right to privacy, though there is no mention of any right to privacy in the US
constitution. In India too there is no mention of any right to privacy in the constitution, but
a nine-judge bench of the Supreme Court in Justice K.S.Puttaswamy vs Union of
India held that it is part of the right to life and liberty mentioned in Article 21.

In the US, some states did not permit women to have abortion, but in Roe vs Wade (1973),
these laws were struck down by the US Supreme Court as violative of the right to privacy,
and women were allowed to have abortions (though a law could forbid it after the second
trimester i.e. after six months of pregnancy). This verdict was modified by the US
Supreme Court in 1992 in Planned Parenthood vs Casey, which prescribed the viability
and undue influence tests.

It can be seen from the above discussion that there are at least three situations where
judges can legitimately legislate:

1. Where such judicial legislation is for furthering the mandates of the constitution and
breathing fresh life into them, e.g. decisions of the Indian Supreme Court expanding
the scope of Articles 14 and 21 of the Constitution. The court has created a host of
rights, holding that they are part of Article 21.
The danger here is that some judges may run amuck, and hold almost everything
under the sun to be part of Article 21. But as former Chief Justice of India Anand
observed, judicial activism is not an unguided missile, and must not become judicial
adventurism. Court decisions should ordinarily have a jurisprudential base, and policy
matters are best left to the executive.
 2. Where a legal norm is required by society for its smooth running, and for some reason
the legislature is unwilling or unable to create it. This has been explained above. The
recent Supreme Court judgment reading down Section 377 of the Indian Penal Code
is an obvious example from India itself.
3. Where there is a gap in the statutory law, judges can fill in the gap. Earlier some
judgments had held that it is for the legislature, not the judiciary, to fill in a c, but now
the preponderant view is that it can be done by Courts, as was done by the Indian
Supreme Court in D. Velusamy vs D. Patchiammal.

Conceivably there may be other situations too where judges can legislate. But in general it
must be said that courts should exercise restraint and avoid the temptation to legislate or
exercise executive functions, not only because that is the function of other organs of the
state, but also because the court is not equipped with the technical expertise or resources
for this.

In his dissenting judgment in Griswold vs Connecticut, Justice Hugo Black of the US

Supreme Court warned that “unbounded judicial creativity would make this Court into a
day-to-day Constitutional Convention”. In his book, Nature of the Judicial Process ,
Justice Benjamin Cardozo of the US Supreme Court wrote, “The Judge is not a knight
errant roaming at will in pursuit of his own ideal of beauty and goodness”. Justice
Frankfurter of the US Supreme Court pointed out in his reflections on the reading on
statutes that great judges have constantly admonished their brethren of the need for
discipline in observing their limitations. As Chief Justice Richard Neely of the West
Virginia State Supreme Court observed: “I have very few illusions about my own
limitations as a Judge. I am not an accountant, electrical engineer, financier, banker, stock
broker, or systems management analyst. It is the height of folly to expect judges to
intelligently review a 5000 page record addressing the intricacies of a public utility
operation. It is not the function of a judge to sit as a super board or with the zeal of a
pedantic schoolmaster substituting his own judgment for that of an administrator.”

Markandey Katju is a former judge of the Supreme Court of India.

Lecture 3

Meaning of Interpretation of Statutes and The Intention of Legislature

 Definition and Meaning:

“Interpretation”: According to Webster’s New World Dictionary the word Interpretation as

“the act or result of Interpreting ; Explanation, Meaning, Translation, Exposition, and
word construction is understood as the act or process of construing, the way in which
something is constructed ; manner or method of building.”
Statutory is defined as fixed, authorized or established by statute.

According to ‘Salmond’, the interpretation happens or necessary only in enacted law not
in case of customary or case laws. He defines it as a process by which the courts seek to
ascertain the meaning of legislature through the medium of authoritative forms in
which it is expressed.

 Difference between Construction and Interpretation:

According to Cooley: ‘Interpretation’ is an art of finding out the true sense of any form of
words, i.e., the sense which their author intended to convey and of enabling others to derive
from them the same idea which the author intended to convey.

‘Construction’: is a process of drawing conclusion, respecting subjects what lie beyond the
direct expressions of the text from the elements known from and given in the text conclusions
which are in the spirit though not within letter of law.

As observed by WHITE, J:

Both mean to have same significance. It may be understood that the two expressions are to be
used as synonymous.

Objective of Interpretation:

All the enacted laws are drafted by legal experts, still very often the courts and lawyers have
to unfold the meanings of ambiguous words, expressions and resolve inconsistencies.

 Interpretation as function of Judiciary:

There are three organs of state (a) Legislature (b) Executive (c) Judiciary. Legislature makes
laws, executive enacts laws and judiciary interprets laws. It is rather the functional aspects of
the law.

Judiciary is the organ which puts the law in operation or puts the law in use. When law is put
in use then could be possibility of absurdity hardship or inconvenience, ambiguity which
makes the law futile. Hence to put the law in use or get into functional role the judiciary has
to put efforts to remove the absurdity, hardship, ambiguity and inconvenience having the
rules of interpretation and this is called construction / interpretation.

The function of interpretation or construction is guided by the Maxim.

“jus dicere et non jus dare” i.e., to declare the law and not to give it. i.e., office of judges is
not to make the law but to declare the law.

1. “INTENTION OF LEGISLATURE”

A statute is an edict (Proclamation by sovereign state or government official) the most

accepted mode of interpretation or construing the statute is to adopt the interpretation or
construction according “to the intent of them that make it”.

It is the duty of Judicature is to act upon the true intention of the legislature. This is guided by
the Maxim. “Sententia Legis” i.e., true intention of legislature.

Intention of the legislature always serves as reference to the meaning of words used by
legislature which are objectively determined. It is nowhere seen or expressly provided, it has
to be assessed by the guiding rules of interpretation.

 According to Salmond the duty of the judicature is to discover and to act upon the true
intention of the legislature under the Maxim, ‘sententia legis’ or mens.

As essence of the law lies in the spirit, not in its letter, but letter are the only way in which
intentions are expressed. The words are external manifestation of intention that it involves.
When there is possibility of one or more interpretation of statute, courts has to adopt that
interpretation which reflects the ‘true intention of legislature’ which can also be considered
legal meaning statutory provisions.

 The intention of legislature shall have two aspects:-

 “Meaning’’: That which tell what the words mean.

 “Purpose and Object”: That which includes purpose and object of enacting the statute.

As already understood intention of legislature is not found, it is assessed from the statute with
a combination of ‘meaning of the words’ and light of purpose or objects.

 Guiding lines to frame intention of legislature are: –

1. The context (pari materiae. external aid to interpretation).

2. The subject matter.

3. The effects and consequences.

4. The spirit or reason of the law.

Intention of legislature is assessed either in express words or by necessary implication in
keeping mind the purpose or object of the statute.

 According to J, A mechanical interpretation of the words and application of

legislature intent devoid of concept will make most of the remedial and beneficent
legislation futile (ineffective). Judiciary would mold or creatively interpret legislation
as they are finishers, refiners and polishers of legislation.

 Supposed intention (limitation):- ( new Idea)

It is very well accepted that through the text and then with the context the intention is
understood, but in any case courts cannot, think of anything which the legislation has not
provided. If the court understands anything beyond what the legislation provided then it is
understood as supposed intention which the court has arrived at on his own by
overviewing the legislative parameters or subjects involved in legislation by the legislature.

It is a universally accepted truth that ‘no facts of the case are same’ but definitely there would
be similarity in the facts of the case. While applying the same law in different cases on
similarity courts cannot or need not proceed with a supposed intention.

 Supreme courts guidelines for interpretation (or) Settled principles of

interpretation:-

1. The court must start with the presumption that legislature did not make a mistake.

2. The court must adopt a construction which will carry out the obvious intention of the
legislature.

3. If there is a defect or an omission of the words used by the legislature, the court must
as much as possible, by literal reading produce on intelligible result. When the
provision becomes unintelligible, absurd, unreasonable, unworkable or totally
irreconcilable with other parts of statute then only words may be added, altered or
modified, thereby to connect or make up the deficiency.

Case laws for intention of legislature

1. Much quoted passage from the Seaford Court Estates Ltd. v. Asher (1949 2 All
E.R. 155) wherein Lord Denning, L.J. observed:
“The English language is not an instrument of mathematical precision. Our literature would
be much poorer if it were. This is where the draftsmen of Acts of Parliament have often been
unfairly criticised. A judge, believing himself to be fettered by the supposed rule that he must
look to the language and nothing else, laments that the draftsmen have not provided for this
or that, or have been guilty of some or other ambiguity. It would certainly save the judges
trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the
absence of it, when a defect appears a judge cannot simply fold his hands and blame the
draftsman. He must set to work on the constructive task of finding the intention of
Parliament, and he must do this not only from the language of the statute, but also from a
consideration of the social conditions which gave rise to it and of the mischief which it was
passed to remedy, and then he must supplement the written word so as to give ‘force and life’
to the intention of the legislature. ... A judge should ask himself the question how, if the
makers of the Act had themselves come across this ruck in the texture of it, they would have
straightened it out? He must then do so as they would have done. A judge must not alter the
material of which the Act is woven, but he can and should iron out the creases.”

2. J. L. Nanda vs Smt. Veena Nanda on 11 December, 1987 (Equivalent citations:

1988 AIR 407, 1988 SCR (2) 348)
 Plea for divorce by husband on grounds of cruelty ( sec 13 HMA) and
desertion by wife.

The appellant and the respondent, husband and wife,

were married under the Hindu Customs in February, 1961.
Disagreement and disharmony between the two ensued from the
very beginning after the marriage. The parties by and large
lived together till February, 1971, and separately ever
since thereafter except for a short period in 1975. The
respondent-wife, as alleged by the appellant, did not like
to live in the joint family and always created ugly scenes
by quarrels, etc. The appellant was forced to live
separately from the joint family, but even then, according
to him, the conduct of the wife continued to be the same
bad. The appellant alleged that he suffered a nervous
breakdown because of her behaviour and had to be
hospitalised. He, therefore, filed a petition for a decree
of divorce on the grounds of cruelty and desertion. The
trial Court granted the divorce. On appeal by the
respondent, the High Court reversed the decision of the
trial Court and dismissed the petition for divorce. A
Letters Patent Appeal by the appellant was dismissed by the
High Court. The appellant appealed to this Court for relief
by special leave.
Dismissing the appeal, the Court,
^
HELD: It could not be held that the respondent was
behaving with the appellant in a manner which could be
termed as cruelty, which entitled the appellant to get a
decree of divorce. Sometimes, the temperament of the parties
may not be conducive to each other, resulting in petty
quarrels, but it could not be held on the basis of any
material that the ailment of the appellant was the direct
result of the respondent's conduct. The High Court was right
in coming to the conclusion that there was no material to
prove that the respondent treated the appellant with such a
cruelty as would entitle the appellant to a decree of
divorce. The judgment of the High Court maintained.

Observation: The court observed that HMA has not been amended regarding form of
marriage. Amongst Hindus marriage are often arranged and thus couple hardly get to
know the temperament of each other. Further if one looks at the act as a whole, the
intention is to retain the marriage (as marriage is sacrament and not an agreement).The
court held that considering the fact that there were no major quarrels, the
temperamental differences could not be constructed as cruelty.

3. All India reporter Karamchari Sangh v AIR ( AIR 1988)

The question which arises for consideration in this case is whether the law reports namely,
All India Reporter, Criminal Law Journal, Labour and Industrial Cases, Taxation Law
Reports, Allahabad Law Journal and U.P. Law Tribune published by the 1st respondent, All
India Reporter Limited, are newspapers as defined in the Working Journalists and Other
Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (Act
No. 45 of 1955) (hereinafter referred to as "the Act") and whether the employees of the 1st
respondent engaged in the production or publication of the said law reports are entitled to the
benefits conferred upon the employees of newspaper establishments by the Act.
All India Reporter Karamchari Sangh v. All India Reporter Ltd. AIR 1988 SC 1325

The question which arises for consideration in this case is: – whether the law reports namely,

• All India Reporter,

• Criminal Law Journal,

• Labour and Industrial Cases,

• Taxation Law Reports,

• Allahabad Law Journal and

• U.P. Law Tribune

published by Respondent , All India Reporter Limited, are newspapers as defined in the
Working Journalists and Other Newspaper Employees (Conditions of Service) and
Miscellaneous Provisions Act, 1955 – whether the employees of Respondent engaged in the
production or publication of the said law reports are entitled to the benefits conferred upon
the employees of newspaper establishments by the Act.

Object of the Act : To regulate certain conditions of service of working journalists and
other employees employed in the newspaper establishments.

1. The expression “newspaper” is defined by Section 2(b) of the Act as follows: • “

‘Newspaper’ means any printed periodical work containing public news or comments
on public news and includes such other class of printed periodical work as may, from
time to time, be notified in this behalf by the Central Government in the official
Gazette.”

2. • In order to be a newspaper, a work must be

(i) a printed work,

(ii) (ii) a periodical, and
(iii) (iii) should contain public news or comments on public news.
3. A “newspaper employee” is defined by Section 2(c) of the Act as any working
journalist, and includes any other person employed to do any work in, or in relation
to, any newspaper establishment.
4. “Newspaper establishment” is defined by Section 2(d) of the Act as an establishment
under the control of any person or body of persons, whether incorporated or not, for
the production or publication of one or more newspapers or for conducting any news
agency or syndicate.
5. The expression “working journalist” is defined by Section 2(f) of the Act as a person
whose principal avocation is that of a journalist and who is employed as such, either
whole time or part-time, in or in relation to, one or more newspaper establishments
and includes an editor, a leader writer, news editor, sub-editor, feature writer, copy-
tester, reporter, correspondent, cartoonist, news photographer and proof-reader, but
does not include any such person who is employed mainly in a managerial or
administrative capacity, or being employed in a supervisory capacity, performs, either
by the nature of the duties attached to his office or by reason of the powers vested in
him, functions mainly of a managerial nature.
6. It was urged before the High Court on behalf of Respondent , All India Reporter
Limited, that the law reports published by it were not newspapers as defined in the
Act and therefore the order made by the Central Government on the basis of the
recommendations of Justice Palekar were not applicable to its establishment. • The
High Court accepted the plea of Respondent and declared that the law reports were
not newspapers within the meaning of Section 2(b) of the Act and that the demand
made by the Deputy Labour Commissioner to comply with the order made by the
Central Government on the basis of the recommendations of Justice Palekar was
unsustainable by its judgment. • Aggrieved by the decision of the High Court the
appellants have filed this appeal by special leave.
7. In order to be a newspaper a work must be a (i) printed work; (ii) a periodical; and
(iii) should contain public news or comments on public news. Any other class of
printed periodical work as may, from time to time, be notified in this behalf by the
Central Government in the Official Gazette may also be a newspaper. • There is no
dispute in the present case that the law reports are printed works and that they are
periodicals. • The only question which remains to be considered is whether they
contain public news or comments on public news.
8. • The expression “news” is not defined in the Act. • According to Shorter Oxford
English Dictionary “news” means tidings, new information of recent events; new
occurrences as a subject of report or talk.
9. . • The law reports which are being published by Respondent are reports of recent
decisions of the Supreme Court of India and of the High Courts in India which
are supplied to it by its agents appointed at New Delhi and other places where
High Courts are situated. • It cannot be disputed that these decisions are of
public importance. Article 141 of the Constitution provides that the law declared
by Supreme Court shall be binding on all courts within the territory of India. •
Even apart from Article 141 of the Constitution the decisions of the Supreme
Court, which is a court of record, constitute a source of law as they are the
judicial precedents of the highest court of the land.
10. • Hence it is difficult to agree with the submission made on behalf of Respondent that
the law reports do not carry any news and that the public is not interested in them. •
We are of the view that any decision published in the law reports of Respondent
contain information about the recent events which have taken place in the
Supreme Court or in the High Courts which are public bodies and these are
matters in which the public is interested. • We find it also difficult to agree with the
submission made on behalf of Respondent that since the law reports are going to be
preserved by the lawyers as reference books after getting them rebound subsequently
they should be treated as books. It may be that the decisions contained in these law
reports may cease to be items of news after some time but when they are received by
the subscribers they do possess the character of works containing news.
4. Padmasundara Rao v State of Tamil Nadu ( AIR 2002 SC 1334)
It is well settled principle in law that the Court cannot read anything into a statutory
provision which is plain and unambiguous. A statute is an edict of the legislature. The
language employed in a statute is the determinative factor of legislative intent. The
first and primary rule of construction is that the intention of the Legislation must be
found in the words used by the Legislature itself. The question is not what may be
supposed and has been intended but what has been said.
5. Union Of India And Ors vs Filip Tiago De Gama Of Vedem Vasco ... on 30
November, 1989
The paramount object in statutory interpretation is to discover what the legislature
intended. This intention is primarily to be ascertained from the text of enactment in
question. That does not mean the text is to be construed merely as a piece of prose,
without reference to its nature or purpose. A statute is neither a literary text nor a
devine revelation "Words are certainly not crystals, trans- parent and unchanged" as
Mr. Justice Holmes has wisely and properly warned. (Town v. Eisher, 245, U.S. 418,
425, 1918). Learned Hand, J., was equally emphatic when he said. "Stat- utes should
be construed, not as theorems of Euclid, but with some imagination of the purposes
which lie behind them." (Lenigh Valley Coal Co. v. Yensavage, 2 18 F.R. 547 at
553.)