Judicial Process and Interpretation of Statutes

17/08/2022
A combination of substantial and procedural law. JP and IoS are two papers which have been
merged into one.
You can either study principles and then cases which used the principle or study the
judgement and identify the principle.
What are the elements which constitute Judicial Process? Benjamin Cordozo is the leading
authority on JP. Cardozo’s lectures have been compiled in a book. Concern is not to see the
judgement but the principle which has been applied.

How do you relate IoS to JP?

18/08/2022
-

22/08/2022
Look for one judgement where a principle of interpretation/judicial process has been put into
use.

BENJAMIN CARDOZO:1
Brew: What is the process of brewing and what does it fetch? Aroma, flavour. What is
important is what you have brewed. Cardozo talks about the philosophy involved in judicial
process and he says that the way you prepare coffee, what is brewed in the Courts? Ideally,
justice is expected. What would you do to achieve justice in your Courtroom?
 Principles of Law should be used: whether established earlier or devised.
 Due process
 Law
 Truth
 Reason
 Interpretation of the facts of the case
Cardozo asks what are the Sources of Information to be relied upon by the Judge?

1
http://www.grkarelawlibrary.yolasite.com/resources/FM-Jul14-LT-2-Quency.pdf
  On the same issue, every judge has a different opinion. Justice Chandrachud
dissenting in Aadhar, Bhima Koregaon with 4:1 minority. Same sources available to
all judges. For guidance, sources such as precedents, commentaries,
 Cardozo’s writing is still relevant today for judicial process.
Consistency is important as per Cardozo
 Can the SC afford to reverse judgements? What happens to precedent value then?
Irrespective of the CJI, Bench eatc., it has to be consistent as an institution to deliver
justice.

22nd August 2022

DM Arravali Golf Club v Chandra Das – applicable to both judicial process as well as
interpretation

The parliament cannot be left with all

Whatever the judiciary is doing in the name of justice, it has to be seen if they are subject to
some scrutiny.

Assignment – look for a judgment – a case which shows that judicial process has been put
into motion – a principle has been interpreted

Cordozo – talks about the philosophical aspect of the judicial process. What is brewed in the
courts? – legal principles, justice.

Three things one would do as a judge:

1. Follow Principles of Law – established or devised –

Facts – there is a need to filter out the undesirable things to come to the truth

Whether there is any scope of sensitivity or the judge has to be immune to extraneous
circumstances? –

2. Consistency in application of principles, follow the precedents – consistency is important

when it comes to delivery of justice

Law, truth, reason

Sources of Information: precedents, books, works of jurists,

 23/08/2022 (See Kashish Also)
 The process which is followed by the judges to decide cases is difficult to be
explained.

Divisional Manager, Aravali Golf Club v Chander Hass

Facts and Decision:
 Appointment of certain persons as gardeners and they were required to drive a tractor
as well. Their jobs were regularized as a Mali and not as a tractor driver. Trial Court
rejected the claim on the ground that there was no post of tractor driver in the
establishment and further held that since golf field being vast, required to be
maintained with mechanical gadgets, the plying of tractor a part and parcel of the job
of mali in a Golf Club. The High Court set aside the decree of the Trial Court with
direction to create the post of tractor driver and regularizing the services of the
respondents against the said newly created posts. SC restored the judgement of the
Trial Court which was reversed by the High Court

Court’s reasoning:
 The case dealt with separation of powers and the interference of the judiciary with
administrative matters. SC restored the judgement of the Trial Court which was
reversed by the High Court. This is a matter of interpretation. Court cannot direct
creation of posts as its creation and sanction a prerogative of the executive or
legislative authorities, which Court cannot arrogate to itself. Directions given by the
High Court and first Appellate Court to create the posts and regularization of services
of the Respondents against the said posts not sustainable and accordingly hereby set
aside.
 The separation of powers doctrine laid down by Montesquieu was reiterated that the
function of the Court was not to legislate but to analyse whether they go beyond their
power in the actions taken. Courts must not go beyond their domain and it is not their
job to legislate. How was can the Court go in its judicial activism? The SC held that
when a State action is challenged, the function of the court is to examine the action in
accordance with law and to determine whether the legislature or the executive has
acted within the powers and functions assigned under the constitution and if not, the
 court must strike down the action. While doing so the court must remain within its
self-imposed limits.
 In para 24, Justice Frankfurter in Marbury v. Madison was quoted. All power is, in
Madison’s phrase, of an encroaching nature. Judicial powers is not immune against
this human weakness. It also must be on guard against encroaching beyond its proper
bounds, and not the less so since the only restraint upon it is self-restraint.
 Cited Tata Cellular v. UoI, Ram Jawaya, and in Para 22: The court must not
embarrass the admin auth who have the expertise in running the administration. In
Para 25, Justice Verma has been quoted to show that judiciary has intervened in
executive functions:
“Judiciary has intervened to question a mysterious car racing down the Tughlaq
Road in Delhi, allotment of a particular bungalow to a Judge, specific bungalows for
the Judges pool, monkeys capering in colonies, stray cattle on the streets, clearing
public conveniences, levying congestion charges at peak hours at airports with heavy
traffic, etc. under the threat of use of contempt power to enforce compliance of its
orders. Misuse of the contempt power to force railway authorities to give reservation
in a train is an extreme instance”

CARDOZO: In the philosophical aspect of decision making, Cardozo says that the
subconscious and not-so subconscious elements of the judge influence the interpretation. The
conscious elements which guide the judge are latent within the cases at the appellate stage
and must be classified and differentiated. Of the subconscious forces which lie behind a
judge's decision he says: "All their lives, forces which they do not recognize and cannot
name, have been tugging at them-inherited instincts, traditional beliefs, Acquired
convictions, and the resultant is an outlook on life, a conception of social needs, a sense in
James' phrase of the total push and pressure of the cosmos which, when reasons are nicely
balanced, must determine where choice will fall.”
On Page 14 of Cardozo, he mentions that the Constitution overrides the statute and if statute
is in consonance with the Constitution, then the role of the judge ends. In this sense, the judge
made law is secondary to the law made by Legislature. But the role is not so clear when there
are gaps to be filled within these statutes.
Cardozo cites Justice Frankfurter in his book. (READ)
 25/08/2022
25th August 2022

General Theories and Rules of Interpretation:

1. The Function of the court is to interpret the law and not to legislate.

P Rama Chandra Rao v State of Karnataka – Para 22 – Legislation is that source of

law which consists in the declaration of legal rules by a competent authority. When judges by
judicial decisions lay down a new principle of general application of the nature specifically
reserved for legislature they may be said to have legislated, and not merely declared the law.
Salmond on Principles of Jurisprudence (12th Edition) goes on to say "we must distinguish
law-making by legislators from law-making by the courts. Legislators can lay down rules
purely for the future and without reference to any actual dispute; the courts, insofar as they
create law, can do so only in application to the cases before them and only insofar as is
necessary for their solution. Judicial law-making is incidental to the solving of legal disputes;
legislative law-making is the central function of the legislator." [mention the underlined part
in the answer].

In a monograph "Judicial Activism and Constitutional Democracy in India", commended by

Professor Sir William Wade, Q.C. as a "small book devoted to a big subject", the learned
author, while recording appreciation of judicial activism, sounds a note of caution "it is plain
that the judiciary is the least competent to function as a legislative or the administrative
agency. For one thing, courts lack the facilities to gather detailed data or to make probing
enquiries. Reliance on advocates who appear before them for data is likely to give them
partisan or inadequate information. On the other hand, if courts have to rely on their own
knowledge or research it is bound to be selective and subjective. Courts also have no means
for effectively supervising and implementing the aftermath of their orders, schemes and
mandates. Moreover, since courts mandate for isolated cases, their decrees make no
allowance for the differing and varying situations which administrators will encounter in
applying the mandates to other cases. Courts have also no method to reverse their orders if
they are found unworkable or requiring modification".

It may lay down principles, guidelines and exhibit creativity in the field left open and
unoccupied by Legislation. Patrick Devlin in 'The Judge' (1979) refers to the role of the Judge
as lawmaker and states that there is no doubt that historically judges did make law, at least
in the sense of formulating it.
Professor S.P. Sathe, in his recent work (Year 2002) "Judicial Activism in India
Transgressing Borders and Enforcing Limits", touches the topic "Directions: A New Form of
Judicial Legislation". Evaluating legitimacy of judicial activism, the learned author has
cautioned against Court "legislating" exactly in the way in which a Legislature legislates and
he observes by reference to a few cases that the guidelines laid down by court, at times, cross
the border of judicial law making in the realist sense and trench upon legislating like a
Legislature.

2. Statute must be read as a whole :

Padma Sundara Rao v State of Tamil Nadu –

The rival pleas regarding re-writing of statute and casus omissus need careful consideration.
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 rule of
construction is important here, in the exam you may be asked to differentiate]. 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. "Statutes should be construed not as theorems of Euclid".
Judge Learned Hand said, "but words must be construed with some imagination of the
purposes which lie behind them".

In Dr. R Venkatchalam and Ors. etc. vs. Dy. Transport Commissioner and Ors.
etc. (AIR 1977 SC 842) it was observed that Courts must avoid the danger of apriori
determination of the meaning of a provision based on their own pre-conceived notions of
ideological structure or scheme into which the provision to be interpreted is somewhat fitted.
They are not entitled to usurp legislative function under the disguise of interpretation.

Upendra Baxi article – to be discussed in the next class –

Rajiv Dhawan –

Cardozo

Types of Methods of Jusicial process which Cardozo has covered (four lectures in total)

Philisophy

History

Tradition
Sociology

Adherence to Precedents

1. Inherent Instincts

2. Beliefs

3. Acquired Convictions

The above 3 forces with regard to a judge (of an apex court having law making power) should
be reasonably balanced and you need to see what Cardozo calls the “Conception of Social
Needs.” He says “reasons are nicely balanced – must determine where _____ falls – every
problem finds its own settings.”

This is what he means by push and pull of the cosmos, and the background and setting of the
case. Subjectivity always creeps into the judgement of the judge. Can only see the world
through his eyes and not through anyone else’s eyes (through the lens of the director you see
the artist).

This is the philosophical method of judicial process.

Judge is only supposed to see the arguments and material put by the lawyers, and the
legislation – not to look beyond it to the background and settings.

Now we will make another attempt to show judge made-law is secondary through Gray’s
Lectures on Nature and Sources of Law. Sometimes legislation do not attribute any meaning
to the statutes. The legislature had probably not anticipated the question before courts right
now while drafting.

If a particular meaning has not been ascribed by the legislation, then courts are not supposed
to ascribe them by considering other factors like social morality, equality etc. (e.g. Hindu
Succession Act – no female coparcenors before 2005 amendment, judges could not read in)

Cardozo Part from Chelsea’s Notes:

● Cardozo –

1. Methods of judicial process – Philosophy, history, tradition and sociology. He also talks
about adherence to precedents.

2. Legal Smithy – Precedents are not the sole authority of law (tools) needed for the legal
armory (smithy). Living Oracle of Law – Judges in Blackstone’s livid phrase – judges look to
the common law rules that fit the case in question.
 3. Jus Scriptum –

Three forces – Inherited Instincts, Traditional Beliefs, and Acquired Convictions – If these three
forces, when combined together, explain how judges take decisions – “total push and pressures of the
cosmos” (James’ phrase). These factors should be balanced reasonably – the resultant is a conception
of social needs.

29/08/2022
Baxi’s Article: How to not judge the judges? Wrote in 1983. One question in the exam
from this.
29th August 2022

How to judge the Judges

Upendra Baxi

[one question in the exam from this]

Seervai has criticised Justice Iyer’s judgments. Baxi has further criticised Seervai. Only that
part of Seervai’s work has been taken up which Baxi felt is not that good. At the outset,

Part II last para - things that Baxi found annoying

Part III

Judges of the SC should simply proceed with the material and the arguments placed before
them. Write the judgment based on the drafts of both the parties. Baxi says that Seervai’s
model of judicial role has the following components (components that Baxi identified from
Seervai’s writing):

Judge is also a public servant.

Judging the judges is a natural right of the bar -

“It is clear that the model of judicial role espoused by Seervai is not a fully worked out
philosophical or analytical model” - Baxi says that Seervai is not a jurisprudent. He says that
Seervai does not relate to these theories, rather he takes pride that he is not a theories.

“The approach thus is not just atheoretical but antitheoretical”

“, Seervai's model embodies his preference for obligation set for Indian appell”

Part IV
Reasons summarised by Baxi - for aberrations in Seervai’s work - four reasons have been
given

Positive Law - "judges have to decide in accordance with positive law”

“Thus, the rule that penal statutes must be construed strictly wills and contracts should be as
far as possible be read so as to respect the intentions of parties and testators or that an
absurdity or impossibility may not be attributed to a statute may be seen as authoritative by
and public at large because the judges”

30th August 2022

Notebook – class taken by academic fellow (NOT RELEVANT)

Why interpretation of statutes is necessary

● HLA Hart- To address penumbra cases- not possible for parliament to envisage all possible
cases when drafting a statute- interpretation is a tool used to filled gaps- law can neither be
too vague nor too certain

● Joseph Raz- interpretation of law is different from other kinds of interpretation- we do not
interpret any other document out of respect or consequences that may be penal in nature

Difference between legal construction and legal interpretation-

● In the Indian legal system, Courts are only allowed to interpret the law- primary function of
the judiciary is to interpret the law.

● Words have inherent meaning- therefore, they have to be culled out by the interpreter-
textualist approach- for instance, words in common parlance have a predefined meaning.

● Stanley Fish challenges the idea that dictionaries are a reliable source of meaning of words-
he argues the dictionary is only a record of what previous speakers meant by the word- it is
not necessary that future speakers would follow the same meaning.

● The authorial intent approach criticises the textualist approach- they say that words do not
have meaning, they are given meaning by the interpreter.

● Context is the background or circumstances surrounding the law- the parliamentary

debate/constitutional assembly debates may be relied on.

● Textualists argue that if an ordinary meaning is not sufficient or if it gives rise to absurd
conclusions, interpreters must rely on context. They also recognise that intent is an aid to
interpretation. However, proponents of the authorial intent approach argue that interpretation
of text is not sufficient- intent of the author is to be relied on.
 ● Stanley Fish argues that the interpretation of the interpretive community only matters-
lawyers, judges and other stakeholders.

31st August 2022

Baxi Article Continued

In any contract, there are two parties. Any new contract case will bring something new which
is based on the facts. Whatever is going to be the outcome of the case, it will be binding on
the two parties. Will this outcome actually be new or would it be based on precedents?

Baxi says that the contract which is based on the existing precedents, will have a new
outcome at the end.

Misleading.. Political and social implications

Where positive law allows two or more lines of interpretation, judges may choose one of
them.

interpretative efforts. In a system structures governance through a relatively autonomous

appellate judiciary, laissez faire legal profession, and a relatively free access to appellate and
tribunals, the legislature just cannot settle in advance the interpretation that its enacted laws
may receive, in course of time, appellate

“...The legislature just cannot settle in advance”

No lawyer can hope to succeed in his task

Fourth - lawyers and judges regularly employ doctrine of precedent and rules of statutory
construction in exercising their choice as to which interpretation should bear at any given
time.

Whether the judge has discretion to give the offender relief of any sort - how do you interpret
the penal statutes - it is said that they have to be interpreted strictly. This is what Baxi also
says. “Thus, the rule that penal statutes must be construed strictly wills and contracts should
be as far as possible be read so as to respect the intentions of parties and testators or that an
absurdity or impossibility may not be attributed to a statute may be seen as authoritative by
and public at large because the judges say so. Statutory interpretation rules, principles and
maxims may be seen, from an outsider's standpoint, as assertions of judicial fiat.

…
If there is any implied term in a contract, how do you infer that?

The process of concretization of general and abstract norms always results in creation of
new, individuated and specific norms. In this sense, the distinction between norm creation
and norm application is not an absolute but a relative distinction.

Part VII

Deputy Legislator

This part discusses if a judge can be termed a deputy legislator.

Can we have a universal prescriptive theory of judicial discretion? - it is not possible to have
one. It appears to us that the answer to this question must be one. For one thing, the total
social environment, including the and economic millieux, vary enormously between a
developing society and a developed one.

1st September 2022 (Chelsea’s notes also added)

R. Rudraiah v State of Karnataka – (1998) 3 SCC 23 – The court said that the
principle of ironing out the creases does not justify re-writing a clause or doing violence to its
language.

Tata Consultancy Services v State of Andhra Pradesh – (2005) 1 SCC 308 – The
court should not be overzealous in searching for ambiguities in words which are plain.

State of West Bengal v Washi Ahmad – 1977 SC – it talks about the principle of construction.
The word ‘green ginger’ was discussed – whether it would be a vegetable: green or dry.

Bengal Finance Sales Tax Act 1941 – Section 6(1) – vegetables, green or dry, commonly
known as sabzi. Tax was imposed on green ginger which is used to flavour the food and that
is why it would not fall under the category of sabzi.

The word "vegetable" in Item 6 of Schedule I to the Act, so construed, by giving its popular
sense meaning, "that sense which people conversant with the subject-matter with which the
statute is dealing would attribute to it" denotes those classes of vegetables which are grown
in a kitchen garden or in a farm and are used for the table. It may not be used as a principled
item of the meal. It can be in the category of subsidiary items.

Bharuch Coconut Trading Company case – 1991 SC – it was a trading company which was
importing brown coconuts from coastal areas and selling it in Ahmedabad. The municipal
corporation increased the rate from 1 rupee per hundred KGs to 5 rupees. They said that
brown coconut, though dried green coconut, cannot be considered to be a dry fruit. The
watery brown coconut does not fall within the meaning of the relevant entry number.
Mangulu Sahoo v Sales Tax Officer – 1974 (1972, check) – Justice Khedage – whether chillies
and lemons are vegetables. Odisha sales tax act 1947. In 1961, the Cuttack HC had decided
that these were not vegetables. Before an item can be considered as vegetable, it should be a
principled item of the food.

We are unable to accept this assertion as correct. Even if a section of Oriyas have a dislike for
chillies and lemons, they do not cease to be vegetables for that reason. In common parlance
chillies and lemons are known as vegetables. We have no doubt that chillies and lemons have
always been considered as vegetables. In that view it is not necessary for us to go into the
question whether at any rate they are fruits, sales or purchases of which are exempt from
sales tax.

Oswal Agro Mills v Collector of Central Excise – 1993 SC – central excise and salt act 1944 –
one category is household soap and the other category is any other soap.

The couts have taken the opnion that if you have to take the siple mening of terms in
common parlance, then you have to use them in the same sense.

Common Parlance test – M/s Trutuf Safety Glass Industries v Commissioner of Sales Tax –
It is settled position in law that while interpreting the entry for the purpose of taxation
recourse should not be made to the scientific meaning of the terms or expressions used but
to their popular meaning, that is to say, the meaning attached to them by those dealing in
them. This is what is known as "common parlance test".

Pritipal Singh v Union of India – Exact meaning should be preferred in place of lose
meaning.

Contiguous – the meaning has created issues. The meaning in common parlance is what is to
be seen. The exact meaning should be used. One should be careful to not mix the secondary
meaning with the lose meaning, and the lose meaning should not defeat the purpose of
secondary meaning.

“Wherever the secondary meaning points to a meaning which the statute meant, preference
should be given to the secondary meaning.”

1st September 2022 (CHELSEA’S NOTES)

Interpreting plain meaning of words- ironing of creases in interpretation- R Rudraiah case- “the
principle of ironing out the creases does not justify rewriting a clause or doing violence to its
language”.
Tata Consultancy Services v S. o. AP.- Courts should not be overzealous in searching for ambiguities
in words that are plain. Simple words like ‘green ginger’ and ‘lemons’ shouldn’t be made ambiguous.

State of WB v Washi Ahmed- taxation statutes- principle of construction of words- meaning of green
ginger’ discussed- whether it is a vegetable, green or dried- goods described as ‘vegetable’,
commonly known as ‘sabzi’. Tax was levied on green ginger as ‘vegetable’- held that it is not
vegetable as it is used to flavour the food. Popular meaning must be given to the term- classes of
vegetables which are grown in a farm or kitchen garden to take on the table are vegetables- it may not
be used as a principle item of the meal but it should at least be a subsidiary item in the meal.
Technical meaning of the term must be interpreted as per the context.

Bharuch Coconut Trading Co v Municipal Corporation- the co was trading brown coconut and
selling it in Ahmedabad- the Municipal Corporation levied tax- held that brown coconut, though it is
dried green coconut, cannot be regarded as dry fruit.

Manglu Sahoo v Sales Tax Officer- whether chilis and lemons are vegetables- in 1961, Cuttack HC
had decided that they are not- it held that before an item can be considered as vegetable, it must be
satisfied that it is the principle item of meal- in the Manglu Sahoo case it was held that “Comparing
the definition of "spices" with that of "chillies", it would be clear that chillies can also come within
the ambit of spices. By the very mention of the expression spices in the registration certificate as
coming within the definition of grocery no point of law arises as to whether chillies are included
within the meaning of "grocery". The question should have been framed as to whether chillies would
come within the definition of spices. We accordingly reframe the question.

In view of our holding that chillies come within the definition of spices and as spices were entered in
the registration certificate of the purchasing dealer for being purchased tax-free, the petitioner is
entitled to sell chillies to the purchasing dealer free of sales tax.”

Oswal Agro Mills v Collector of Central Excise- Central Excise and Salt Act, 1944- categories of
‘household soap’ and ‘any other soap’- whether toilet soap would be ‘household soap’ or ‘any other
soap’- held, it is household soap. Cannot be considered as industrial soap.
Interpreting the simple meaning of terms used in common parlance should not be unnecessarily
complicated- interpret in light of common meaning- common parlance test- practice in the region
must be taken into account- SC in True Tough Safety Glass Industry said- while interpreting the
entry for taxation, recourse should be made to popular meaning (i.e. meaning attached by people
dealing in them)- should not consider technical/scientific meaning.

Every word can have a primary and a secondary meaning- the exact meaning should be preferred in
place of loose meaning- held in Prithi Pal Singh v UoI. In this case, the meaning of ‘contiguous’ was
in question. The exact meaning should be used- one should be careful not to mix up the secondary
meaning with the loose meaning and loose meaning should not defeat the secondary meaning.
Wherever the secondary meaning points to that meaning which the statute meant, preference should
be given to that secondary meaning.

Lt. Col. Prithi Pal Singh Bedi v. Union of India, (1982) 3 SCC 140-

Facts- The petitioners were officers in the Indian Army. They filed petitions under Article 32
challenging the validity and legality of the order convening general court martial to try each of them
on different charges. They challenged the constitutional validity of Rules 22, 23, 25 and 40 of the
Army Rules, 1954 ("Rules' for short) as being violative of the fundamental rights of the petitioner
guaranteed under Articles 14 and 21 of the Constitution.

They contended that provisions of the Army Act, 1950, insofar as they provided for deprivation of
liberty by Court Martial, must meet standards of just, fair and reasonable procedure under Article 21.
It was further contended that the restriction or abrogation of fundamental rights must be by Parliament
itself and cannot be done by delegated legislation such as Rules and Regulations. Another issue was
how this matter has to be interpreted in light of Article 33- Article 33 empowers Parliament to decide
the extent of restriction or abrogation of the rights under Part III to ensure the proper discharge of
duties by the Armed Forces and the maintenance of discipline among them.

Observations- Central issue was the interpretation of Rule 40- which provided for composition of
court martial- r 40 imposes two requirements in composition of the court martial-

a. Positive - shall be composed of officers of different corps and departments

b. Negative- it shall not exclusively contain officers from the delinquent officer’s corps or
department

Petitioners contended that “corps” should be read as “army corps”- but the court observed that -
expression ‘army corps’ should not be confused with the expression ‘corps’ as both connote a
different and distinct unit in the Army. The Units designated as “battalion” or “regiment” will be
corps for the purposes of the Act and the Rules. This interpretation would ensure that composition of
the Court Martial does not present great difficulty- the provision would be workable. But if it is
interpreted in a very wide manner- as suggested by the Petitioners- it would be unworkable because it
would be impossible to constitute court martial from different army corps altogether.

“The legislature speaks its mind by use of correct expression and unless there is any ambiguity in the
language of the provision the court should adopt literal construction if it does not lead to an absurdity.
If the literal construction leads to an absurdity, external aids to construction can be resorted to. To
ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition in which the
rule is placed, the purpose for which it is enacted and the object which it is required to subserve and
the authority by which the rule is framed. This necessitates examination of the broad features of the
Act.”

5th September 2022 (Chelsea’s notes also added)

Harshad Mehta case - the SC identified three stages when it comes to imposition of a tax:

1. declaration of liability in respect of persons or property

2. assessment of tax that quantifies the sum which the person liable has to pay

3. methods of recovery if the person taxed doesn't voluntarily pay

Tax Due - how do you determine the tax that is due? - tax may vary depending on the context
and the context will answer this question.

Natural meaning is to be seen in view of the intent of the legislature, and then apply it in the
context. the word they have been using

is there any scope of intent in calculation? - what has been there, a person needs to apply
their mind to that.

If primary meaning is not the intent of the legislature, then you will follow the secondary
meaning because that is the intention of the legislature. We are here to discuss the intent of
the legislature.

Difference between interpretation and construction - are these synonyms? - providing

meaning that is already not there is something called construction.

Sometimes they say that they are exactly the same. Interpretation is the art of finding out the
true sense of any form of words, i.e., the sense which their authors intended to convey and of
enabling them to derive from the same idea which the author intended to convey.
Construction - construction is the drawing of conclusions, respecting subjects that lie beyond
the direct expression of the text from elements known from and given in the text conclusions
which are in the spirit though not within the letter of the law.

What is the logical basis of any law? - every legislation has come to rectify some mischief.
Although it is not possible to put everything into the category of mischief, it is one of the
objectives. at times, there is also redundancy. [check with rohit if anything was said here]

Prithipal Singh v Union of India - legality and validity of certain orders was challenged which
initiated court martial proceedings against certain army officers.

Arguments were made on article 21 of the constitution. If any order is passed against army
officers, then it has to be fair and reasonable as per article 21. the fundamental rights cannot
be deprived by delegated legislations like the Army Rules. Article 243 empowers the
parliament to restrict the fundamental rights of members of the armed forces. Rule 20 of the
army rules involved discussion on interpretation.

Rule 20 deals with composition of court martial. two requirements. a positive standard
which says what all is to be there. a negative standard which says who all are not to be
included.

The issue before the court was interpretation of the word "corps". The petitioner argued that
it should be army corps. The court said that the units that are termed as regiment or
battalion are ‘corps’ for the purposes of the act. In generally taking it as army corps would be
difficult. If it is used in the narrow sense, then the provision becomes useable and that is
what the parliament also intended

"the legislature speaks its mind by use of correct expression... the court should adopt literal
construction.. if absurdity, then external aids can be adopted ..."

construction combines literal meaning and purposive interpretation. This combination will
become construction.

Jasbir Singh v Vipin Kumar Jaggi - AIR 2001 SC 2734 -

the statutes must be read as a whole in its context. it is the text and the context which
become relevant.

if a law is unjust in nature, then is interpretation is required for such kinds of laws? - unjust
law is no law. the law has to be just and unbiased.

Bharat Petroleum Corporation v M Ratnavali - 2007 SC –

05/09/2022 CHELSEA’S NOTES

Interpretation of presumptions- cannot be given special treatment. Tax statutes- Harshad Mehta v
Custodian 3 stages for imposition of tax identified- “There is the declaration of liability, that is the
part of the stature which determines what persons in respect of what property are liable. Next, there is
the assessment. Liability does not depend on assessment, that ex hypothesi has already been fixed.
But assessment particularised that exact sum which a person liable has to pay. Lastly, come the
methods of recovery if the person taxed does not voluntarily pay”. "Tax due" usually refers to an
ascertained liability. However, the meaning of the words 'taxes due' will ultimately depend upon the
context in which these words are used.

The natural meaning of the word has to be interpreted in lieu of the intent of the legislature- then
that interpretation has to be applied to the context. Intentment.

Difference between interpretation and construction (important)- construction may provide

meaning which does not exist- for instance, inclusion of right to health as part of article 21 is
construction. Interpretation is the art of finding out the true sense of any form of words, i.e. the
sense that the authors intended to convey- and enabling others to derive from the same idea which the
author intended to convey. Construction is the drawing of conclusions respecting subjects that lie
beyond the direct expression of the text from elements known from and given in the text, conclusions
which are in the spirit, not within the letter of law. Construction combines literal meaning and
purposive interpretation. Construction is a broader exercise than interpretation.

Jasbir Singh v Vipin Kumar Jaggi (2001)- intention of legislature

Text and the context- pari materia

Unjust laws- do not require interpretation- fundamental principles- unjust law is no law.

Bharat Petroleum co. v M Ratnavali (2007)-

Mischief rule- rectify mischief, redundancy (will be discussed later)

6th September 2022 [Chelsea’s Notes]

Whether a court may stray from a statute’s text to prevent an unjust result?

When enforcement of a statute renders an absurd or unreasonable result, a court may interpret the
statute in a manner which displays the lawmaker’s true intention. Cardozo- conflicting principles in
question- must see which one has binding force. “The directive force of logic does not always exert
itself, however, along a single and unobstructed path. One principle or precedent pushed to the limits
of its logic may point to one conclusion, another principle or precedent, followed with like logic, may
point with equal certainty to another.” “Civil courts may not add to the pains and penalties of crime.
You cannot claim justice when you yourself are the wrongdoers”.
Riggs v Palmer- the Statute of Will was very clear- outlines who may inherit. Whether murderer can
reasonably inherit from the victim? Clear statutes may fail to have a reasonable result. Principle of ‘no
one can benefit from their own wrong’- this logic prevailed.

Equity- constructive trust- the formula through which the conscience of equity. Property is acquired
in such circumstances that the holder of the legal title may not in good conscience retain the beneficial
interest. Equity, to express its disapproval of his conduct, converts him into a trustee. Such formulae
are merely the remedial devices by which a result conceived of as right and just is made to square
with principle and the symmetry of the legal system.”

Microcosm- judicial process is there in the microcosm.

Jagbir Singh v Vipin Kumar Jaggi- interpretation of section 64 of NDPS Act- whether immunity
from prosecution means that respondent would be able to claim immunity any time during trial or
only during initiation of proceedings- statute must be interpreted contextually- word by word meaning
may lead to interpretation that is inconsistent with lawmaker’s intention- object of section 64 is same
as similar provision in CrPC- similar interpretation- ‘prosecution’ cannot be limited to initiation of
proceedings. Words take their colour from the context in which they are used. Prosecution means
entire proceedings.

Bharat Petroleum v M Ratnavali- [TANISHKA EMAIL] Burma Shell Act 1976- allowed acquisition
and transfer of rights in Burma Shell Co. to Bharat Petroleum- through the Act, a lease of 30 years
was granted to Appellant, post which they will get a right of renewal- asked for renewal after 30 years
but Burma Shell did not agree as rent had not been paid over 30 years- eviction suit filed by Burma
Shell. SC discussed 2 principles- “the law is harsh but it is law”- equity can supplant the law but not
override it- “an unjust law is no law”- a statute can never be exhaustive- there is always scope to
review it in line with pragmatism. Here, legislative intent was to be found and applied- held that
statute must be tested on constitutionality. Presumption of constitutionality- here right of property is a
constitutional right- the Act therefore has to be construed strictly and in line with the public interest.

“A page of history is worth a volume of logic”- Cardozo. Blackstone talks about common law and
custom- 3 categories of common law-

1. General custom

2. Particular custom

3. Certain particular laws which by custom are adopted and used by some particular courts of
general and extensive jurisdiction

Goodwin v Roberts- (to be discussed)

7th September 2022

Bhatia International v Bulk Trading – 2002 SC – In their contract, parties often
include an arbitration clause. In this case, the arbitration was to take place in France and a
sole arbitrator was appointed. There was a Section 9 application. The relief sought was an
injunction. The party should be restrained from alienating, transferring or creating third
party rights. Part 1 of the act would not apply to arbitrations where the place of arbitration is
not in India. [Look at the part which talks about Section 9 and whether it is going to apply to
arbitrations that take place outside India or not]. Part 2 of the act applies to foreign awards.
Para 15 of the judgment.

Para 15 – It is thus necessary to see whether the language of the said Act is so plain and
unambiguous as to admit of only the interpretation suggested by Mr. Sen. It must be borne
in mind that the very object of the Arbitration and Conciliation Act of 1996, was to establish
a uniform legal framework for the fair and efficient settlement of disputes arising in
international commercial arbitration. The conventional way of interpreting a statute is to
seek the intention of its makers. If a statutory provision is open to more than one
interpretation then the Court has to choose that interpretation which represents the true
intention of the legislature. This task often is not an easy one and several difficulties arise on
account of variety of reasons, but at the same, it must be borne in mind that it is impossible
even for the most imaginative legislature to forestall exhaustively situations and
circumstances that may emerge after enacting a statute where its application may be called
for. It is in such a situation the Courts' duty to expound arises with a caution that the Court
should not try to legislate. While examining a particular provision of a statute to find out
whether the jurisdiction of a Court is ousted or not, the principle of universal application is
that ordinarily the jurisdiction may not be ousted unless the very statutory provision
explicitly indicates or even by inferential conclusion the Court arrives at the same when such
a conclusion is the only conclusion. Notwithstanding the conventional principle that the duty
of judges is to expound and not to legislate. The Courts have taken the view that the judicial
art of interpretation and appraisal is imbued with creativity and realism and since
interpretation always implied a degree of discretion and choice, the Court would adopt
particularly in areas such as, constitutional adjudication dealing with social and defuse
rights. Courts are therefore, held as "finishers, refiners, and polishers of legislatures which
gives them in a state requiring varying degrees of further processing".

A construction that results in hardship, serious inconvenience, injustice, absurdity or

anomaly or which leads to inconsistency or uncertainty and friction in the system which the
statute purports to regulate has to be rejected and preference should be given to that
construction which avoids such results.
Ultimately, this judgment was overruled and criticised for four years. It was overruled in the
BALCO case.

Para 16 – emphasis was given on defining section 2(f) which defined international
commercial arbitration. “The definition makes no distinction between international
commercial arbitrations held in India or outside India.” This is the area that requires
clarification. “An international commercial arbitration may be held in a country which is a
signatory to either the New York Convention or the Geneva Convention. An international
commercial arbitration may be held in a non-convention country.”

Para 24 – As Part I was also to apply to international commercial arbitrations held outside
India the term "judicial authority" has been used in Sections 5 and 8.

This kind of choice of interpretation would help in establishing harmony. This case is
important for interpretation for this purpose. “On this interpretation there is no lacunae in
the said Act. This interpretation also does not leave a party remedyless. Thus such an
interpretation has to be preferred to the one adopted by the High Courts of Orissa, Bombay,
Madras, Delhi and Calcutta. It will therefore have to be held that the contrary view taken by
these High Courts is not good law.”

Constitutional Morality

Navtej Singh Johar case talked about constitutional morality. Maneka Guruswamy’s article
on constitutional morality in the Indian Express (6th September 2022).

Contemporary Aids – add to course outline under the head “aids to interpretation”

8th September 2022

Did not attend the class

12/09/2022 (See Kashish Also)

What can be included in Statutes? Codified Statute is one kind of statute. Need to identify
what is a statute.
Classification of Statutes:
1. Duration: Temporary Statute and Permanent Statute. Permanent is one which is going
to stay until repealed. Temporary shall be only for a period such as “for the period of
case” in temporary injunction, Ordinances where time period is defined. It may be
repealed as soon as the purpose is discharged.
Where would International Conventions fall?
(PDF shared) What about European Central Bank’s institutional provisions? There can be
various brackets and any body of rules can be called Statute if it is arising from an authority.
For ECB, you will see that some Int Convention has led to a set of procedure which would be
called a statute.

(PDF shared on WhatsApp): Art 13(3) of the Constitution: Law “includes” any ordinance,
order, by-law, custom, usage. Further, Statute is the will of the Indian Legislature.

2. Method:
- Mandatory, Imperative or Obligatory: Don’t have any option. Have to do something: Eg:
MVA: have to wear helmet.
- Directory or Permissive Statute:

3.
- Repealing Act
- Amending Act:
CrPC was enforced in 1973, but before that there was CrPC 1898. Thus, 1973 was a
Repealing Act. Similarly, Consumer Protection Act, 2019 repeals and is a new statute
to govern. There are also Amending Acts.
4.
2
- Codifying Statute: The purpose of this kind of statute is to give an authoritative
statement of the rules of the law on a particular subject, which is customary laws
- Consolidating Statue: TOPA is a consolidating statute, CrPC is not merely compilation
of previous statutes but also has new provisions.

5. Declaratory Statute: This kind of statute does an act of removing doubts, clarifying
and improving the law based on the interpretation given by the court, which might not
be suitable from the point of view of the parliament.

2
https://blog.ipleaders.in/rules-interpretation-statutes/#:~:text=of%20Criminal%20Procedure.-,Declaratory
%20statutes,of%20view%20of%20the%20parliament.
 6. Remedial Statute: Granting of new remedies for enforcing one’s rights can be done
through the remedial statutes. The purpose of these kinds of statutes is to promote the
general welfare for bringing social reforms through the system.

7. Enabling Statute: Eg: Banking Regulation Act: Enables RBI, Advocates Act:
Specifies a body, gives powers, restricts who will be Advocate.

8. Disabling Statute: Rights under a law are being restricted.

9. Explanatory Statue: if inadvertently, some information is required but was missed

out, or need to validate something.

Amrendra Kumar Mohapatra v. Orissa (2014): Art 245, 254 and 50 of the Constitution.
SC has said that adjudication of rights is essentially a judicial function. The power to validate
an invalid law or to legalise an illegal action is within the exclusive province of the
Legislature. Certain points which the Court will look into:
1. Vice of Invalidity that rendered the Act/Action/Proceedings/Rules declared invalid in
the previous judgement.
2. Whether Legis was competent
3. Whether such remediation is consistent
If all 3 satisfied, then the legislation becomes validating/remedial.

13/09/2022
Pari materia – when it is applied, it results in logical interpretation

State of UP v Babu Ram Upadhya – SC 1961 – currency notes of rupees 650 were found with
the officer.

Rule 1, Para 486 of UP Police Regulation –

See if it is a cognizable offence

Section 7 of the Police Act under which certain proceedings were taken up against the
person. Whether this section was applicable to this person?

Whether the regulations that were invoked in this case were merely directory in nature and
the non-compliance with the rules invalidated the order of dismissal?
Article 311(2) – whether para 486 could be applied to the object which emanated from this
article

The term used in para 486 of the rules is ‘shall’. Whether the shall may be interpreted as
‘may’

Whether the disciplinary proceedings could be treated as administrative action?

Para 486, Police Regulations – Inquiry is made under the directions of the DSP. [page 7 of
the judgment]

Use of the word ‘only’ is important.

the court found that the offence complained of here is a cognizable offence.

Paragraph 486 of the Police Regulations makes this clear. It says that when the offence
alleged against a police officer amounts to an offence only under s. 7 of the Police Act, there
can be no magisterial inquiry under the Criminal Procedure Code. This part of the rule
applies to an offence only under s. 7 of the Police Act i. e., the first category mentioned above.
Rule I refers to a cognizable offence i. e., the second category, rule 11 to a non-cognizable
offence i. e., the third category, and rule III applies to an offence under s. 7 of the Police Act
and to a noncognizable offence. Though the word "only" is not mentioned in rule 111, the
offence under s. 7 of the Police Act can, in the context, mean an offence only under s. 7 of the
said Act i.e., an offence falling under the first category. So understood, the three rules can be
reconciled. We, therefore, hold that, as the offence complained of in the present case is a
cognizable offence, it falls under rule I and not under rule 111. We, therefore, reject this
contention.

But if there is a statute prescribing the terms of service and the mode of dismissal of the
servant of the Crown, the statute would control the pleasure of the Crown.

Whether the tenure can be abrogated or extended by the legislature which has to be at the
pleasure.

The rules made in exercise of a power conferred on a Government-under a statute so

delegating the power to a subordinate officer can only be administrative directions to enable
the exercise of the pleasure by the concerned authorities in a reasonable manner and that
any breach of those regulations cannot possibly confer any right on, or give a cause of action
to, the aggrieved Government servant to go to a court of law and vindicate his rights.

The government of India act 1915 talks about “tenure at pleasure”.

It is common case that the Act and the Regulations framed thereunder were constitutionally
valid at the inception and that they are also consistent with the provisions of the
Constitution. The difference between the two contentions lies in the fact that according to
one His Majesty's pleasure cannot be modified 88 by a statute, according to the other it is
subject to statutory provisions.

The first question is whether the power of the Governor under Art. 310 to terminate the
services of a Government servant at pleasure is part of the executive power of the State
under Art. 154 of the Constitution.

This Article imposes two qualifications on the exercise of the pleasure of the President or the
Governor

The most important of these two limitations is the provision prescribing that a civil servant
shall be given a reasonable opportunity of showing cause against the -action proposed to be
taken in regard to him.

The appropriate High Court and the Supreme Court can test the validity of such a law on the
basis whether the -provisions prescribed provide for such an opportunity, and, if it is valid,
to ascertain whether the reasonable opportunity so prescribed is really given to a particular
officer.

Seven points important for interpretation –

The framers of the Constitution, having incorporated in our Constitution the "tenure at
pleasure" unhampered by legislative interference, thought that the said limitations and
qualifications would reasonably protect the interests of the civil servants against arbitrary
actions. The discussion yields the following results:

(1) In India every person who is a member of a public service described in Art. 310 of the
Constitution holds office during the pleasure of the President or the Governor, as the case
may be, subject to the express provisions therein.

(2) The power to dismiss a public servant at pleasure is outside the scope of Art. 154 and,
therefore, cannot be delegated by the Governor to a subordinate officer, and can be exercised
by him only in the manner prescribed by the Constitution.

(3) This tenure is subject to the limitations or qualifications mentioned in Art. 311 of the,
Constitution.

(4) The Parliament or the Legislatures of States cannot make a law abrogating or modifying
this tenure so as to impinge upon the overriding power conferred upon the President or the
Governor under Art. 310, as qualified by Art. 311.
(5) The Parliament or the Legislatures of States can make a law regulating the conditions of
service of such a member which includes proceedings by way of disciplinary action, without
affecting the powers of the President or the Governor under Art. 310 of the Constitution read
with Art. 311 thereof.

(6) The Parliament and the Legislatures also can make a law laying down and regulating the
scope and content of the doctrine of "reasonable opportunity" embodied in Art. 311 of the
Constitution; but the said law would be subject to judicial review.

(7) If a statute could be made by Legislatures within the foregoing permissible limits, the
rules made by an authority in exercise of the power conferred thereunder would likewise be
efficacious within the said limits.

Under para. 479(a) the Governor's power of punishment with reference to all officers is
preserved; that is to say, this provision expressly saves the power of the Governor under Art.
310 of the Constitution. "Rules made under a statute must be treated for all purposes of
construction or obligation exactly as if they were in the Act and are to be of the same effect as
if contained in the Act, and are to be judicially noticed for all purposes of construction or
obligation"

Departmental directions are different. If there are rules under it, then that would make it a
comprehensive code [make it make sense]

Thakur Pratap Singh v Shri Krishna – AIR 1956 SC 140 – the printed forms being issues
earlier got finished because of the high number of candidates. New forms were issued. Old
forms carried a column for caste but the new ones carried a form for occupation.

Some rules are vital and go to the root of the matter : they cannot be broken; others are only
directory and a breach of them can be overlooked provided there is substantial compliance
with the rules read as whole and provided no prejudice ensues; and when the legislature does
not itself state which is judges must determine the matter and, exercising a nice
discrimination, sort out one class from the other along broad based, commonsense lines.

It is a well settled general rule that an absolute enactment must be obeyed or fulfilled exactly,
but it is sufficient if a directory enactment be obeyed or fulfilled substantially.

14/09/2022 (See Kashish and Chelsea also)

Any wrongs or crimes under IPC/CrPC: would they be applicable to the Armed forces also?
Yesterday we did a case about Police Act, a wrong by a policeman. Likewise, would a same
provision is appliable to the Army Officer as to a civilian? One answer: There are special
provision for Army Officers, they should not be tried with the same provisions.
So, we can have general provisions and special provisions for different categories of persons.
Who will determine that this individual who has hurt X would be tried under general
provisions or special provisions?
Eg: Sexual offences, you look at the age of the accused for Juvenile, POCSO. For reservation
policy, you will need to have a look at the category for certain cases.
Basically, there are general provisions which are applicable to everyone and then special
provisions which it is applicable to certain people. For non-obstante clause: notwithstanding
to any other provision, you look for it in the body of the Act but when we talk about general
and specific legislation which are going to be applicable, there can be a scope of dispute
when the two provisions are not complementary.
SC has made observations, one case: Ajoy Kumar v. UoI (1984): If there are two
legislations, which one would apply? SC said that:
1. Legislature has the right to alter a law already promulgated to subsequent legislations.
[If statute 1 is applicable, by subsequent legislation Govt can say that statute 2 will be
applicable now or by amendment]
2. A special law may be altered, abrogated, or repealed by a later general law by express
provision. [Non-Obstante Clause]
3. A later general law will override a prior special law if the two are so repugnant to
each other that they cannot co-exist even though no express provision in that behalf is
found in the general law.
4. Imp: It is only in the absence of a provision to the contrary and of a clear
inconsistency that a special law will remain wholly unaffected by a later law.
It means that first you have a special leg and later a general act comes into existence with
provisions are in conflict. You need to find out which one would prevail. If so much
inconsistency, then the special law will prevail.

Maruti Udyog Ltd v. Ramlal (2005 SC):

- Here the situation is that both statutes contain non-obstante clause. SC said that when
both are special statutes, eg: IBC, DRT etc. An endeavor should be made to give effect to
both of them. In case of a conflict still existing, the later one will prevail.

1966 case: Satyapathi v.

- Workmen dispute: Will Workmen Compensation Act, 1923 or Fatal Accident Act, 1885
will apply? In 1923 Act there are special provisions which provide for compensation in
case of injury. Court held that though you have a right to seek compensation, whatever
remedy is available under Fatal Accident can, no one can stop the workman from
availing. One law giving compensation and the other gives some more remedy. The later
statute doesn’t stop the workman from getting the relief under the former.
In copyright dispute: would CPC apply or Copyright? The remedy shall be under copyright
act but if some general provision is available under CPC, which is the general legislation,
then the person can avail that as well.

2 remedies available, general and special CPC provides broad remedy and copyright act
provides specific. Once we file under Copyright, will the court interpret it: liberally or strict?
If specific legislation, then a strict interpretation has to be taken. In general law, the words
will be broad and wide and in specific, there is lesser option with the court to interpret
strictly.
Legal Maxim: “Generalia Specialibus Non Derogant” and “Leges posteriores priores
contrarias abrogant”: Provisions of a subsequent law takes precedence and overrides the
provisions of a previous law but this is subject to (Generalia) addition to this, if some other
remedy is available, no one can stop from claiming until provided in the special legislation.
Nagendra Chandra v. Probhat Chandra (AIR 1942 Cal HC): An Act has empowered an
authority to carry out cases of certain jurisdiction. It would follow general law or special law?

Mahalaxmi Metal Industries v. K Sushila Devi: TPA 1882 and Tamil Nadu Buildings and
Rent Control Act in question. TN Act is a special piece of legislation causing inroads into the
general principles of law as enunciated by the TPA. A special legislation like this cannot be
interpreted in a wide way so as to further infringe the general rights available under the
general law. If this background is kept in mind most of the problems would not arise.

Nageshwar Singh v. State of Bihar: Different provisions of the same statute which are
apparently inconsistent with one another should be so construed as to give effect to all the
provisions so as to avoid a repugnancy
(harmonious interpretation): In re: B, an Adv. Of Benaras: AIR 1943 All HC: Wherever
there is a special enactment or a general enactment: need to adequately utilize provision of
both of them. If inconsistency then the one later will apply.

State of WB v. Mohd Saifi (1966 SC): Sometimes in the same statute, you will have general
and special legislations. The person was acquitted by a Special Court because they stated
there was no jurisdiction. The issue was that whether a person who has been acquitted by a
Special Court due to lack of jurisdiction and then later Govt notified and bestowed the
jurisdiction, this person was arrested and tried. Under 403 CrPC, same person is being tried
again under the same provision. This appeal came to the SC:

15/09/2022
Need to get notes
19/09/2022 (See Kashish also)
 Usage of the term “may” and whether that makes the provision mandatory or
directory? For that the case is Fairgrowth Investments v. Custodian [EMAILED
NOTE] where may was construed as “shall” by the Court.
Appellant contended that the use of the word “may” made the provision to be directory
in nature. §4(2) of Special Courts Act and §29 of the Limitation Act also uses the word
“may”. Under the Limitation act, it is mandatory and there cannot be a choice because
once an objection is received by the court, it will have to be interpreted as shall. Under
the Special Courts Act, 1992, “may file an objection from 30 days within the
notification”. Case referred here: R Ralia v. State of Karnataka.
How do we distinguish b/w mandatory and directory? Comes back to the intention of
the legislature. Unequivocally it has been conveyed that the legislature used the word
may and not shall. Sometimes shall can also be interpreted as may and here the words
are unequivocal and similar to Limitation Act, so may was used as shall.
 “Convert such deposits into shares after repayment of the loan” Is this directory or
mandatory? Maharashtra Cooperatives Societies Act, 1960: Societe de traction v.
Kamani Engineering (1964) and Siddheshwar Sahkari Sakhar Karkhana v. CIT,
Kolhapur (2004 SC): If the direction is coupled with duty, then the discretion cannot
be applied. It could be only after repayment and not prior even if may is used.
Generally may is discretionary and enabling but in some situations, it can also be
 mandatory. If the provision is inelastic, then it is shall but if elastic, then may. If the
obligation can be circumvented, then directory.

How do you make out that the rule is directory/mandatory?

1. Absence of any provision for the contingency of any particular rule not being complied
with or followed.
2. Serious general inconvenience and prejudice to the general public would result if the
act in question is declared invalid for non-compliance to the particular rule.
SC has laid down the test in Dal Chand v. Municipal Corporation Bhopal (1983): No
formula to find out. What you need look at is the broad purpose i.e. object of the provision
and the act as a whole and the relationship between the two. Read the preamble to find out
if provision is mandatory or directory to link object and purpose of the statute. Court uses
the term “Public Mischief”. “There is no general rule that an enactment expressed in
negative and prohibitory language must be considered as absolute nor on the other hand,
is there any general rule that an enactment in affirmative language must not be
considered as absolute.”

 RBI v. Peerless General Finance (AIR 1987): [EMAILED NOTE] Certain

companies which are finance companies and some are insurance companies. Those
financial companies which are in the business of insurance are called insurance
companies. This case is about investment of INR 77 annually, where you get INR
1000 after 10 years and INR 100 as bonus. Actually, they are alluring you to subscribe
to the policy that they have launched with a high rate of return (Ponzi). Peerless was in
the life insurance b/s but was then converted into a finance company after
nationalization of Life Insurance Sector by formation of LIC. There are certain
schemes which are sought by these finance companies which allure you to invest in
their ponzi scheme by offering a high rate of return. Para 8, Justice Chinnappa
Reddy: The subscriber is always at the losing end in the scheme if default or wants
refund. Perfect case of Heads I win, Tails you lose.
Para 5, Justice Khalid: Proliferation of such schemes, middle class and lower-middle
class people falling prey.
Para 16: What is the definition of Financial Institution, NBFC
Para 19: What is a Chit Fund/Ponzi Scheme. Simple Chit, Prize Chits have also been
discussed.
Para 20: RBI’s powers
Para 22: Nature of the business of Peerless and contended that they are not regulated
by RBI.
Para 32: Is this endowment scheme a prize chit within the meaning of Section 2(e) of
the Prize Chit and Money Circulation Scheme Banning Act? Whether this act is
applicable to the scheme or not?
Para 35: What would the word “include” mean?
Para 37: Interpretation

20/09/2022
What we’ve done until now: Cardozo, Baxi’s Article, cases
Shardool Kulkarni: Judicial Process
When you talk about Judicial Review: Review of Legislative and Executive Admin
Action for incompatibility to a higher norm i.e. Constitution, International Obligations.
Mauro Cappelletti: You take for granted that Consti has provisions for JR but this was
not the case in the 70’s. Talks about proliferation of written constitutions with JR
provisions. [Will send reading, not coming in exam]. There is some factor that 108/158
written constitutions have a JR provision like Art 13 in India.

Why do we have a provision in written form? May not be written necessarily. US

consti does not have a written provision. In Marbury v Madisson, the SC asserted that
the power of JR for the first time. Generally, the Courts assert and then in the years
that follow, it becomes embedded in the Constitution.

What prompts the Court to assert JR? and why do countries incorporate JR provisions
and why do these provisions enjoy political support in democratic/semi-democratic
courts.
Historical Narrative: [Not needed to know for Exam]
Why does it come into being? Mauro Cappelletti’s work was empirical and said there
is a growing trend for JR. Also said, that JR is a matter of double faith. First is the faith
in a higher law which binds legislatures etc and the content for higher laws are norms
that protect individual rights and excesses. Second is the faith in Courts, Supreme or
Regular, Constitution or general for enforcement of such a higher law. In this sense, he
 believes that JR is the very notion of Rule of Law Itself. [Does not address
Institutional and Political Reasons why JR comes into being]
JR proliferated in three ways:
Some say it started with Marbury, others disagree that it emerged from Common Law
principles.
 1st Wave: Marbury v. Madison: There was no textual basis for JR in American Consti
but the Court held that there is power for JR. Thereafter, in the century that followed
the idea did not proliferate as much. Reason for this: There was no written constitution
and most of the global south were colonized. There were a few that did adopt: Norway.
Mexico etc.
This idea did not catch on but why did at this point in time, the American Court and
Mexican Consti makers adopt JR?
o At this point in time, you had the notion of a Lockean social contract. There is already a
notion that the State has responsibility.
o Social Contract enforced by putting it in a Written Constitution.
o Notion of Natural Law also existed which were codified which gave the normative basis
for American Courts to assert JR.
There’s also a game theory explanation for Marbury v. Madison. Even in India, w/o textual
basis, Court said Basic Doctrine exists in Keshavananda Bharti. What the Court did was to
not go completely against the Govt but struck down only 1 out of the 2 amendments and
balanced the interests to not fail as a Institution. These strategic considerations also come into
play.
 2nd Wave: After WWII, human rights gained importance. It is against this backdrop,
there is a mushrooming of the Constitution in Europe. You will see that the mode of
JR changes: In the US, the federal courts exercise JR as it is decentralized [India
followed this to an extent where it doesn’t go all the way down to District Courts] but
in the Europe, the notion was that there should be a different Constitutional Courts.
Mostly in post-fascist countries where there was a heightened sense of human rights
protection and consciousness. Spain etc. In this stage, India also enacted JR provisions.
Unlike India where SC and HC can be approached, European Countries limit the right
of the individual to approach the Court. French Model: Legislation to be analyzed by
the Court before they became law.
  3rd Wave: Around the time the Berlin Wall fell and USSR collapsed, many European
countries came into existence in this wave of democratization. The number of
countries in the World increased and the US became a hegemonic power and the US
principles started being followed.
 Also a 4th wave: Rapid democratisation

Having discussed the general need based and normative reasons for JR: It is not going to
come into being or exist until political actors are fine with it and how it is exercised. What
are the Institutional factors: NOT Human Rights, Social Needs, Normative considerations
 Dispute Resolution Mechanism: There is a division of powers vertically b/w State
and Centre and Horizontally b/w President and Parliament. So Court emerges as a
dispute resolution mechanism to remove the deadlocks.


Synopsis: 3 pages
Small Background of the Case: Factual background
Primary Question of Law: what was the clause or issue: reproduce it explain the contention,
what approach taken, how do you plan to analyse it. Affects line of authorities (if it explains
purposive see where cited)
Outcome of the case

21/09/2022 (See Kashish Also)

Ritu Gupta: Back to directory and mandatory
We discussed Dal Chand v. Municipal Corporation Bhopal: There is no test but some test was
laid down by the Court. Wrt every set of facts, we will have to see.
The terms used by the Court is “Essence of the Matter” and “mere matter of the form”
and how do you interpret these? We have to differentiate between them.

When a particular provision of the statute relates to some immaterial matter as to which
compliance with the statute is a matter of convenience rather than substance, or where the
directions of a statue are given merely with a view to the proper, orderly and prompt conduct
of the business, it is generally regarded as directory unless followed by words of absolute
prohibition and the same is proved where no substantial rights depend on the statute, no
injury can result from ignoring it and the purpose of the legislature can be accomplished in a
manner other than that prescribed with substantially the same result.
So sometimes, you have to look at the statute and look at the object and then you look at the
outcomes if you hold either way. No rule but 3 fundamental tests which are usually
applied to determine mandatory or directory:
1. Consideration of the scope and object which you refer to as the scheme and purpose
of the case.
2. On considerations of justice and balance of convenience
3. On a consideration of the nature of particular provision: whether confers Public Duty
or rights/powers.

- If there are two provisions in the same act, such as Sections 54 and 56 of the CrPC. 54
tells you one way and 56 tells you the other. Which one is more appropriate? State v.
Ram Chandra (All HC, 1955): Police officer has to arrest without warrant under 54 but
in 56, he deputes somebody, does that order have to be given in writing? Court held that
order has to be in writing and the person who has been delegated arrests without warrant.

- Naseeruddin v. Sita Ram Agarwal (2003, SC): provision of Rent Act was in question-
whether section 5 of Limitation Act [condonation of delay] can be applied if you have not
complied with provisions of Rent Act- need to know whether that provision was
mandatory or directory. Court determined the amount of rent- had to be paid within 15
days of determination, or within 3 months [subject to extension by court]- benefits of
Rent Act could be enjoyed only upon strict compliance with the provisions- therefore, it
is mandatory. Only where the act provides for extension of time or condonation of
default, only there the Court possesses a power and not otherwise. Section 5 of the
limitation act cannot apply. The provision to deposit rent is mandatory, not directory.

- Another case: Section 53A of TOPA talks about part-performance. Issue here: when a
committee recommended 53A inclusion, can the committee’s report referred to analyse
53A?
- ABC v. State (2015 SC): Child born without marriage and about disclosing the paternity
of the father. What is the role of interpretation? Section 7 of the Guardians and Wards
Act, 1890. Woman has applied to the Court for declaring her the sole guardian of the son
and then Section 11 is procedure on application: notice has to be sent to the parents of the
child before the guardian is appointed. Since the mother wants to be appointed, father
should also be served notice but the woman doesn’t want to mention the name of the
father in the notice. The Court directed her to reveal the name and address as without that
the notice is meaningless. She did not and the Court dismissed her application. Went to
HC: again dismissed, Court can only decide if you are the sole parent after talking to the
father and in the absence of the father, who may have an interest in the welfare of the
child even w/o marriage, the case cannot be decided. The dominating feature is the right
of the minor, and the mother contended that revealing the name could also have an
adverse effect.
The court dealt with provisions dealing with primacy of mother over the father (HAMA)
– also referred to mohamaden law. Para 8 of Judgment – after going through various civil
and common law jurisdiction – para 9.
Para 12 talks about Father’s right to be involved in the child’s life. Given the lack of
involvement, we find no reason to prioritize the rights of father over mother and child.
They cite Laxmikanth Pandey (1985) [Court prohibited notice being issued to the
biological child to prevent from tracing the child] and Gita Hariharan v. RBI [RBI
refused FD in the name of the child w only the mother’s sign] and say that the intention of
the Act is to protect the welfare of the child.
Para 16: Section 11 is purely procedural and so we see no harm of mischief in relaxing
the requirements for achieving the intendment of the Act. Court says that the primary
concomitant is the right of the child.
Para 19: The law is dynamic and is expected to keep pace with time, legal conundrum
which arise.
Here the theory is that the best interest of the child and intendment of the Act is the same.
Revealing this would be against the purpose of the Act.

- Food Inspector, Punalur Municipality v. K Harikumar: (1991CrLJ 641 Ker) Identical

provisions in the statute are either directory or even if treated as mandatory in a general
sense, a substantial compliance is sufficient. The prosecution can fail only if the non-
 compliances shown to have causes prejudice to the accused. Court relied on Dal Chand
while deciding.
22/09/2022 (See Kashish Also)
SHARDOOL KULKARNI [Continued from 20/09]
- The waves of proliferation of JR:
- First: Marbury v. Madison,
- Second: WWII era with different constitutional courts but in India, partially diffused
system of JR and it is only the HC/SC who can exercise JR and there is multiplicity of
courts. Also, we have a written provision (Art 13) similar to the EU.

Will be seeing how JR in India is exercised and what was envisaged:

- Art 13 of Constitution: Only incompatibility with FR that can cause an Admin Action or
Legis Action to be struck down. What does this tell you about the role that was delegated
to the Court and how was Court seen as a political actor? Indian SC and HC are “apex
adjudicatory bureaucracy” as per Baxi and were not envisaged as political actors stricta
senso. They can only JR those actions which touch the Individual Liberties.
- Under the definition of Law: Policy decisions are not included. Ex: India made a Family
Planning Dept but there is no law which lays down any rule for Fam Planning but in
1970s, we saw mass sterilization. There is a policy regime but 13 doesn’t use policy but
only laws, orders, regulations, customs and usages. Another thing left out is
Amendments. In that sense, the mandate of the Court is to be both Appellate Courts and
Constitutional Courts. The idea of judiciary is that it is merely checking the Courts below
it and see if they are complying.
- How has the Role of the Court changed? It is not only creating jurisprudence but also
demosprudence i.e. improving lives of the people through law.
Analyse the changing Role of Court with respect to Amendments which is not envisaged
in Art 13:
- 1st Amendment in 1951, Challenged in Shankari Deo Singh: Court said Legislature can
amend whatever they want to, their prerogative.
- In 1967, another challenge in Golak Nath: Court stll limited as to what JR is and what
constitutes higher law. Limits itself what the higher law would be against which the
exercise of the Parliament’s power shall be checked. Court said Amendment shall be
checked only for the violations of Art 13 which was also the text of the Art. Court
asserting more power but still under the sphere of Art 13.
- In the subsequent decade: Keshavananda Bharti: Basic Structure Doctrine where
compatibility with the higher law which is the basic structure itself. Each judge gave an
illustrative list as to Basic Structure and the Court did not explain what would be Basic
Structure. [Idea of BSD came from German Constitution where FR not amendable only]
SC comes up with an implicit unamendability and can still amend part III but not destroy
the basic structure. So, a broad assertion of power within the limited political leverage it
had. The Indian Constitutional Court follows a trend which has followed that the Court
plays a strategic role where the law is moulded from time to time. The Doctrine is so
broad where the Court becomes the final arbiter of the Constitution and what the Court
does is that it becomes a Legal Sovereign. Not checking if laws just compatible but final
determiner of what the law should be.
- In 1975, Indira Gandhi v. Raj Narain: Amendment was made that the Election to the
office of the PM cannot be challenged. Court invalidated the amendment but upheld the
election. What was the reason for the Court to do this? [A day after Keshavananda, CJI
retired and the norm was to make the seniormost judge as the CJI but seniority was
superseded (majority judges not made CJI) and Justice Ray (minority judge) was made
the CJI. So, the Court did not want any interference from the Govt in its functioning.] In
the present case, Justice Ray struck down the amendment and we can see that the Court
has exercised independence and, in that sense, you would assume that Ray would favour
Indira Gandhi but that is not what happened. What you see is the Court trying to preserve
itself as a political actor. Thus, widening of the ambit that the Court is willing to interfere.
- Indira Gandhi loses election in 1977, Maneka Gandhi’s passport was impounded. What
does the Court do? Under Art 21, Procedure established by law and the procedure must be
just, fair and reasonable. [Didn’t use Due Process because too much discretion to
Supreme Court as in the US] The Court imports a procedural due process in Maneka
Gandhi, not looking at substantive due process as to why the law came into being but
only the procedure to be just, fair and reasonable. This was a very political question at
that point and the Court becoming more and more assertive.
- You will see the Court becoming more assertive even in Minerva Mills. 42 nd Amendment
challenged which was brought in 1976 but challenged in 1980. Thus, JR can be highly
intertwined with the Political History of the Country.
- In the coming years, Courts starts finding locus, starts admitting PIL and assume
jurisdiction. In Hussainara Khatoon, the court assumed epistolary jurisdiction through a
letter. Does Art 32 provide for this? 32 says appropriate proceeding which has to be as
 per the format, rules etc. What does the court do when it exercises epistolary jurisdiction?
JR under 13 and 32 contemplates the specific way to do it and specific laws which can be
challenged. The Court here JR is being exercised as a means to the end and not merely
procedural and thus, broadening who can approach the Court and how. In Khatoon,
Detention of under-trials was challenged, where would this fall under the definition of
law under Art 13? No order, act, regulation, rules challenged in this case and not
traditionally covered under 13. You are essentially challenging every order in every trial
that these prisoners are charged, and the trial has not moved fast. It is not one order or
piece of legislation, but all the network of orders which make the law. The Court has
widened its jurisdiction but also assumed jurisdiction in relation to something that is not
mentioned under Art 13, 32. They say under Art 21: Right to speedy trial. This, Court
broadens kind of cases, scope of law, interpretation to FR and thus, Court becoming more
assertive. Not merely adjudicatory bureaucracy but have become more active.
- In the three judges cases on appointment of judges (SP Gupta etc), Court said
Independence of the Judiciary is a part of the basic structure. Concurrence means only
CJI was then broadened to Collegium. Govt recognized passively that the collegium
exists and they are okay with it. Court not only becoming more powerful and the powers
of the Courts in separation of powers being violated in some cases. There have been
exceptions where the Govt negated the judgement of the Court in Shah Bano through
legislation.

26/09/2022 (See Kashish Also)

RITU GUPTA
- Have to look at the construction and the context for interpretation.
- “Noscitur a sociis” is a part of a larger maxim. The meaning of an unclear or ambiguous
word (as in a statute or contract) should be determined by considering the words with
which it is associated in the context. Example: If you want to identify Mr X, apart from
description, you will say he hangs out with A, B and C. Here, we are not talking about the
context but the company.
- If I say incense, in the backdrop of a festival, you will infer it as incense stick and not the
dictionary meaning. Would a fragrance of toilet soap/deodorant have the meaning as
incense? No, they work in different contexts. You have to look at the context but also the
words which are used around the actual word.
- If mentioned “skilled/unskilled employee”, would you be able to fit the teacher in there?
Its not only the context but when talking about the statute, what comes before and after
the word.
Cases: Usage of the term in the context has to be found out.
[Need to determine that sometimes the word is so peculiar that the meaning won't change
irrespective of the words used before and after and context will have to be seen. If the
words around determine the meaning of the word, then noscitur will have to be used. We
don’t see the context but the company of the words]

- Godfrey Phillip v. State of Uttar Pradesh (2005 SC): In this case, the issue was the
word “luxuries”. Can Gambling, Entertainment, Amusement be put in this? Entry 62 of
the State List in the Constitution. “62 after amendment: Taxes on entertainments and
amusements to the extent levied and collected by a Panchayat or a Municipality or a
Regional Council or a District Council.” Earlier: “Taxes on luxuries, including taxes on
entertainments, amusements, betting and gambling”
Does this talk about the goods or the activities? Since it is used in the company of the
words entertainment and amusements, it is talking about the activity and not goods. It
talks about selling of tobacco and not the tobacco products. Here tax was imposed on
tobacco products, Court said 62 does not impose on goods but rather the activity.
Court: “We are aware that the maxim of noscitur a sociis may be a treacherous one
unless the 'societas' to which the 'socii' belong, are known. The risk may be present when
there is no other factor except contiguity to suggest the 'societas'. But where there is, as
here, a term of wide denotation which is not free from ambiguity, the addition of the
words such as 'including' is sufficiently indicative of the societas. As we have said the
word 'includes' in the present context indicates a commonality or shared features or
attributes of the including word with the included.” The word including denotes the
commonality b/w the activities. Only have to see what the word before or after is
indicating.
- Crawford: When he talks about noscitur, he says like all other principles of construction
this is to be used only as an instrumentality for determining the intent of the legislature
where it is in doubt. If the intent of the legislature is plain, this maxim must give it. It is
permissible to determine the meaning of the words by a reference to the associated words
provided such reading of it is not inconsistent with the general intent and ambit of the
 rule. In such cases, this maxim becomes a guide and at times, even a key to the
ascertainment of the legislative intendment.
- Pradeep Agarbatti v. State of Punjab (1997 SC): Act in question was Punjab General
Sales Tax Act, 1948 and the schedule had grouped certain activities. Court stated that
when articles are grouped together, each word in the entry draws colour from the other
words. The word in question was “perfumery” in Entry 16 and whether that included
dhoop and agarbatti? The Schedule A drew its colour from cosmetics and toiletry
perfumery and no application to agarbatti.
- Ahmedabad Pvt Teachers Association v. Admin Officer (2004 SC): The Act is
Payment of Gratuity Act, 1972: §2(e) and the word is “employee” and stated skilled,
unskilled, manual, supervisory etc. Whether Teachers included? Court said no, and
meaning of each of these words have to be seen in the company of the other words.
Actual order of the three words in juxtaposition also indicated that one takes colour from
the other.
- Immediate Context Rule: Maxwell had said that where two or more words susceptible
of analogous meaning are coupled together, noscitur a socii: they are to be used in their
cognate sense. They take as it were their colour from each other i.e. the more general is
restricted to a sense analogous to the less general.
- Once you understand Noscitur, then you can identify Ejusdem Generis and the difference
between them.

27/09/2022 (See Kashish also)

- Difference between “Noscitur a Socii”, “Ejusdem Generis”, “Reddendo Singula Singulis”
[will do the last one later]
- Ejusdem Generis: Seeing the words as Noscitur but association between a set of words.
- All the terms which refer to Industry, you will have to look at complete set of words but
not getting confused.
- UP State Electricity Board v. Hari Shankar: 1979 SC:
o Enumeration of specific words
o Subjects of enumeration constitute a class or category
o Class or category is not exhausted by the enumeration
o The general terms follow the enumeration
o There is no indication of a different legislative intent
 If the legislative purpose of a statute is such that a statutory series should be read ejusdem
generis, then the rule will be helpful. If not, the rule is more likely to defeat than to fulfil
the purpose of the statute.
- Virendra Singh Bhadoria v. State of MP: Tried to distinguish between the two
principles. The term being interpreted is §25O(7) of the Industrial Disputes Act
“exceptional circumstances”
“Notwithstanding anything contained in the foregoing provisions of this section, the
appropriate Government may, if it is satisfied that owing to such exceptional
circumstances as accident in the undertaking or death of the employer or the like it is
necessary so to do, by order, direct that the provisions of sub-section (1) shall not apply
in relation to such undertaking for such period as may be specified in the order”
“For all the like” apply ejusdem generis but for “exceptional circumstances” you apply
noscitur.
- State of Bombay v. Hospital Mazdoor Sabha (1960): The definition of industry under
§2(j) of the ID Act. Dispute between Management and Hospitals and whether this would
fall in Industry. The word “undertaking” was interpreted in the definition.
“Industry” means any business, trade, undertaking, manufacture or calling of employers
and includes any calling, service, employment, handicraft, or industrial occupation or
avocation of workmen;” Justice Gajendragadkar applied noscitur to interpret undertaking
because it appears after trade or business. Noscitur is the only rule of construction
because a wide word has been deliberately used to make the definition wider. Where the
intention of the legislature is to give wider meaning, Noscitur is applied. Wherever the
wider application is doubtful “whether Hospital is undertaking or not” use ejdusdem
generis. But here no ambiguity, noscitur is wider than ejusdem generis.
- If I say the word “Suit” and if I say “prosecution” and if expression is “other legal
proceedings”. How would you interpret other legal proceedings? Would arbitration fall in
this? Disciplinary proceedings in University would not be a legal proceeding as executive
auth. Legal proceeding for violation of law in any Court and even Arbitration because it is
a part of legal proceeding and adjudicator in arbitration. “Asst Collector of Central
Excise v. Ramdev Tobacco Company”: Section 40(2) of Central Excise and Salt Act,
1944. Asst Collector may be an executive auth but not necessarily a legal proceeding.
Tribunal proceedings would be a legal proceeding. Applied the rule of ejusdem generis.
- “The genus envisaged by the preceding words not having been exhaustive, the legislature
has deliberately wished to get other items in the same bracket” but in Central Excise case,
 the SC mentioned that the term legal proceeding would have to be interpreted ejusdem
generis. Same class of words, we go to Ejusdem. Suit and prosecution constitute a
different genus.
- In another case, Court said to apply ejusdem, there should be a different genus or
category. “The specific words must apply not to different objects of the widely different
character but to something which can be called a class or kind of object, where this is
lacking the rule will not apply and mention of single specie will not constitute a genus.”
- Courts and Juris have accepted that both these principles can overlap and in most of the
situations, they are applied in the same situation.
- Distinction b/w doctrines of construction is: ejudsem generis is applied where general
terms follows the expression of narrower connotation preceding it and for noscitur, two or
more words which are susceptible of analogous meaning (comparable) are compiled
together, they are understood to be used in their cognate sense. If you’re applying
ejusdem, general words w specific words, then general should not be given a wider
interpretation.
- Too many scholars have called this test a dangerous yardstick because it is difficult to
ascertain the legislative intent. If ejusdem generis used when legislative intent is clear
only to add a word into the interpretation.
- If Legislative Intent is very clear in the statute, do we need to apply ejusdem? No, rules of
construction will apply only if ambiguity. If it would damage the real meaning, would
you apply EG? No.
- Grasim Industries v Collector of Customs, Bombay (2002): 5-6 tests have been
mentioned. If only general words used, then no need to use Ejusdem or only specific
words, no use. Only if specific words and then general words, then you use Ejusdem.

28/09/2022
SHARDOOL KULKARNI
- Until Now, have done Chap 1 of Cardozo and Baxi’s Article on Judging the Judges
- Cardozo: Chap 1 is logical approach of Judicial Process. Cardozo was a judge in the US
and there is mismatch of certain factors similar to India: former colony, written
constitution with a provision of JR, precedent binding.
- First Chapter: Method of Philosophy. Cardozo giving an insider perspective on JP.
Shat judges do when they judge and what considerations are involved and when the
adhere to precedent and when they deviate.
- Page 10: What is it that I do when I decide a case? What sources do I appeal for
guidance? What proportion do they contribute? If precedent applicable, when do I
rely/deviate? If no precedent applicable, then how to reach a conclusion? If I’m seeking
logical consistency, to what extent can that reach? At what point should the quest be
halted by custom or considerations? Morals and standards also come into play. The
metaphor given by Cardozo: Brewing a compound. Cardozo not looking whether judges
are allowed to brew it or not.
- Page 11: Some underlying principles which vary from judge to judge. He embarks on an
enquiry on how these factors come together and shapes the law.
- Page 16: When judges interpret law, you may call it legislation. Judge is an interpreter
for the community and logical deduction is required in JP.
- If judge uses the method of philosophy, then logical but on other hand, there are some
areas of law, they use method of evolution as to how the law came into being and in these
cases, logic doesn’t help and have to see the historical context i.e. Method of History.
Method of Tradition i.e. Customs [Law believed to be a double institutionalization] and
Method of Sociology is also used.
- Basic Intro in Cardozo, will start with the 4 chapters from tomorrow.

29/09/2022
CARDOZO CHAPTERS: JUDICIAL PROCESS [SHARDOOL KULKARNI]

Chapter 1 of Cardozo: INTRODUCTION: THE METHOD OF PHILOSPHY

- When Cardozo wrote the book, it was series of lecture at Yale and Cardozo was a Federal
Judge at NY Fed Court. What needs to be taken into account is that this was the era of
formalism in SCOTUS. There are many reasons: Fallout of WW1, Economic Crises
where Courts become conservative. Cardozo when he was exposing the inner working of
a judge, it was considered revolutionary at that point. Essentially, Cardozo said formalism
beyond a point is not a reflection of the Judiciary. Method of Logical Progression is the
default mode for all judges. He lays down why is it necessary to look at this and critically
looks at it. He says that when a judge is making a decision, he is looking at different
methods of interpretation. Why do Courts follow precedents simply?
- Internal Page 10:
o “What is it that I do when I decide a case? To what sources of information do I appeal
for guidance?” [Internal and External Aids]
o “In what proportions do I permit them to contribute to the result? In what proportions
ought they to contribute?” [How much importance is placed on the external/internal aid]
o If a precedent is applicable, when do I refuse to follow it? If no precedent is applicable,
how do I reach the rule that will make a precedent for the future? [Judge made law]
o If I am seeking logical consistency the symmetry of the legal structure, how far shall I
seek it?
o At what point shall the quest be halted by some discrepant custom, by some
consideration of the social welfare, by my own or the common standards of justice and
morals? [Realist stance that morals+judge’s ideas of justice]
o Into that strange compound which is brewed daily in the caldron of the courts, all these
ingredients enter in varying proportions. [Metaphor for Brewing]
o “Some principle, how- ever unavowed and inarticulate and subconscious, has regulated
the infusion. It may not have been the same principle for all judges at any time, nor the
same principle for any judge at all times.” [Some principle in the mind of the Judge and
there can be inconsistencies in these principles also. There can be differences between
the Benches as well. Sabrimala: Justice Indu Malhotra dissented, DYC and Nariman
reached the same conclusion using completely different interpretations]
o “In such attempt at analysis as I shall make, there will be need to distinguish between
the conscious and the subconscious”, “
o “More subtle are the forces so far beneath the surface that they cannot reasonably be
classified as other than subconscious.” [Multiple factors at play which can be conscious
and sub-conscious. The conscious ones can be labelled as the guidance principles of
conduct. Sub-conscious factors beneath the surface.
Trump v. Hawaii: Immigration ban on Middle Eastern Citizens. Dissent by
RBG and another, both women and children of immigrants. We see that this
affects the outcome of the judges. These are subconscious factors.]
o “inherited instincts, traditional beliefs, acquired convictions; and the resultant is an
out- look on life, a conception of social needs, a sense in James's phrase of "the total
push and pressure of the cosmos, which, when reasons are nicely balanced, must
determine where choice shall fall.”
 [Whether judges admit it or not, and no matter how much you say they are
guided by precedent but there is a clear subconscious factors in their
philosophy which play a role and these come into play when a decision has to
be made]
o Where does the judge find the law which he embodies in his judgment? [Before you see
how precedent is created, you need to see where the judge is finding the law. For ex:
Brightline Rule says if you’re 18 year old then adult. but if you’re 17 years and 364 days
then? Simple application of the bright line. There has been a diversion in India with
Rape but generally, simply applying the rule.]
o It is true that codes and statutes do not render the judge superfluous, nor his work
perfunctory and mechanical
o The ascertainment of intention may be the least of a judge's troubles in ascribing
meaning to a statute. There can be a situation where the Legislature never envisaged
such a situation. How do you see the intention? In such cases ↓
o “when what the judges have to do is, not to determine what the legislature did mean on
a point which was present to its mind, but to guess what it would have intended on a
point not present to its mind, if the point had been present” [Navtej Johar: Legislature
never meant sex to include sexual orientation but the Court interpreted it as such. Not
the original intent but in the present context, required. What the legislature would do if
the legislature was present today.
o Page 14/15- 2 tasks: first is to find the latent meaning of the positive law and second is
to fill gaps in the legislation which means that the judge is legislating.
o Page 15: “The judge as the interpreter for the community of its sense of law and order
must supply omissions, correct uncertainties, and harmonize results with justice
through a method of free decision” [Have to see the community’s sense of law and
justice]
o Page 17: “Above all in the field of constitutional law, the method of free decision has
be- come, I think, the dominant one today” [More in the American Context: Precedents
can be overruled, even Roe v. Wade set precedents can be set aside]
o Page 18: “The function flourishes and persists by virtue of the human need to winch it
steadfastly responds.” No matter how much you crystallise the law, the judge made law
persists because of the society’s need for clarity and change.
o Page 19: We reach the land of mystery when constitution and statute are silent, and the
judge must look to the common law for the rule that fits the case. He is the "living
oracle of the law"
[Judge is the living oracle of the law, see if compatible with precedents and
below this precedent, this is another layer of juridical understandings such as
what is property etc.]
o Page 37: Hoffield cited by Cardozo
o Page 20: “Stare decisis is at least the everyday working rule of our law” [in general,
Stare decisis is the general rule. First task is to identify ratio decidendi. But we see that
in the Supreme Court of India, we don’t follow rigid adherence to precedents because
courts keep overruling the decisions of coordinate benches. Analysis by Aparna
Chandra, Shrutunjay Bhardwaj on this]
o Why do we need to rely on precedents? Page 22: “Precents attain the Directive force
for future cases of the same or similar nature.”, “It is the source from which new
principles or norms may spring to shape sentences thereafter”
o Page 22: “The common law does not work from pre-established truths of universal and
inflexible validity to conclusions derived from them deductively. Its method is inductive,
and it draws its generalizations from particulars.” [Process is more inductive because
the judge has to draw generalizations from the precedent while deciding a case]
o “One principle or precedent, pushed to the limit of its logic, may point to one
conclusion; another principle or precedent, followed with like logic, may point with
equal certainty to another. In this conflict, we must choose between the two paths,
selecting one or other, or perhaps striking out upon a third, which will be the resultant
of the two forces in combination, or will represent the mean between extremes. Let me
take as an illustration of such conflict the famous case of Riggs v Palmer”
Page 40: Riggs v. Palmer. Court deciding which method to apply, and while
choosing to apply the rule, Court makes a choice on the basis of social, moral,
justice considerations.
Page 41: “Consistency was preserved, logic received its tribute, by holding
that the legal title passed, but that it was subjected to a constructive trust. A
constructive trust is nothing but "the formula through which the conscience of
equity finds expression.”
When there is divergence in the rules, what should the judge do? Page 43:
 “When they begin to diverge, and we must make a choice be- tween them.
History or custom or social utility or some compelling sentiment of justice or
some- times perhaps a semi-intuitive apprehension of the pervading spirit of
our law, must come to the rescue of the anxious judge, and tell him where to
go.”
3/10/2022
o For MidSem: Limit ourselves to the first chapter and an additional reading. If you
don’t go through the reading, it’s okay. See the cases which we would go through
today from the perspective of the first chapter, should suffice.
o Recap: Cardozo providing an insider view: what does the judge look at, what
proportion, how much they contribute. Sometimes, what if a precedent is applicable:
when to follow, when to not and how should they lay down the law if no precedent.
o Try to contextualize Chap 1 with contemporary Indian Case Laws since Cardozo is an
old text and written in an American context.
o Two factors: Conscious factors which you can identity and sub-conscious factors
which affect the judge’s reasoning. As long as a straight jacket formula, then only
application. However, when there is a gap in the law, it becomes significant.
o Deduction and Induction: In induction, you draw a generalization from instances and
that is a better method of how judicial reasoning works. The rules laid down are
hypothesis which are tested in the laboratory of law. (Internal Page 23)
o 4 methods by Cardozo: Method of philosophy (logical progression), next chapter
Method of History (how is the law evolving in terms of historical evolution), Method
of Sociology (based on needs of society, social justice etc). Chap 1 is logical
progression: when do judges follow precedent and how to they follow it.
o Internal Page 31: Logic from induction acquires primacy and tested time to time.
They follow precedent which is to only not be followed
o Page 33: essentially saying that judges must give out even handed judgements. Can't
give divergent decisions for similar issues. If a principle is decided against me, and
tomorrow I’m a plaintiff, it should be applied in my favour. Page 34
o It is not a quest of symmetry but a sentiment of justice which underlies adherence to
precedent
o Page 35: “But as a system of case law develops, the sordid controversies of litigants
are the stuff out of which great and shining truths will ultimately be shaped. The
 accidental and the transitory will yield the essential and the permanent. The judge
who moulds the law by the method of philosophy may be satisfying an intellectual
craving for symmetry of form and substance. But he is doing something more. He is
keeping the law true in its response to a deep-seated and imperious sentiment”
o Essentially, he says that it is this sentiment which underlies the most logical,
symmetrical. While a judge may be following precedent for satisfying symmetry, it is
a response to this sentiment. [Out of the 4 methods, this is the least subjective]
o Page 40: Even merely applying precedent, the directive force of logic doesn’t always
exert itself along a single path. Riggs v. Palmer: Legacy could be held in constructive
trust and wanted to ensure that the law on estates is not destroyed but the legatee
doesn’t benefit from their mistake. Why did the judges take this? Page 43: When we
go forward with logic, we reach a certain point. At first no trouble with paths they
follow the same. When they diverge, then we need to use logic, history,
considerations of justice etc
o Page 44: Judges follow precedent even if unfair or sometimes do not follow because
of an overarching notion of justice.
o 44-45: Those who are rigid about precedent do not understand that “the inspiration of
the rule [of logic and precedent] is a mere sentiment of justice. That sentiment
asserting itself, we have proceeded to surround it with the halo of conformity to
precedent.”
o 45: constant dialectic between justice and logic. Constant dialogue which results in a
decision. If a judge decides to do complete justice but you may create an inconsistent
rule and infirmity. But rigidly precedent may lead to injustice. Must be seen that what
is the court’s understanding of stare decisis and when does the court deviate from it?

o Now: Having done a close reading of the Chapter:

o Article 141: “The law declared by the Supreme Court shall be binding on all courts
within the territory of India.” Is the law declared by the SC binding on itself since it
uses all courts and not all other courts. In US, SCOTUS all judges sit for the hearing
but the SC in India sits in benches of 2/3. How does the Court in India see stare
decisis? The rule of larger bench: implies that only a larger bench can overrule the
decision and the benches are bound by the larger and previous coordinate bench
decisions. But in reality, benches often overrule the ruling of a coordinate bench.
o Reading, which will be sent: Aparna Chandra studied 56 of 115 cases were overruled.
From 1950 to present, Courts decision were less and less grounded in precedent where
adherence to precedent is less optional. The larger bench rule is not in the text of the
Consti. In Bengal Immunity Company Ltd v. State of Bihar: the court has stated
that under 141, courts does not include the SC which means it is binding on lower
courts. Thus, the rule of larger bench rule should be followed for certainty and is a
judicial principle. The law becomes more uniform, why? What would be virtue in
larger bench rule? More difficult to get a larger bench to overrule an existing position
and because of that, the Courts try to apply the law as it is. Example: Judge on a 2
bench judge, and you want to do complete justice. Matter of liberty, would you risk
the matter going out of your hand since CJ decides the larger bench and more time
would be wasted. So they decide themselves expeditiously. More difficult for larger
bench also to overrule the precedent set. It is also essentially an issue of uniformity
and non-arbitrariness [Cardozo: even handed justice]
o 4 principles which emerge for stare decisis, why we need it:
o Quest for certainty: will base decisions on what the law is and if it is
uncertain, can't predict decisions. Costs of decisions and transactions will
increase and become inefficient. Judges should consider the disturbance in
overruling the line of reasoning would cause. Example: Arbitration Seat vs
Venue, lay person wouldn’t know what to do. Legal Advice will have to be
taken, which increases cost.
o There should be uniformity: Espouses a principle of equality. Admin Law,
PNJ: justice must be done and must be seen to be done. Court decides on a
case-to-case basis and does brilliant justice but when the citizen sees the law
and creates a perception of litigants/citizens that Court gives divergent rulings
which may seem unjust. [All interlinked as certainty will lead to uniformity,
and lack of uniformity creates the citizen’s perception which may affect the
Court’s own legitimacy]
o Judiciary’s Institutional legitimacy: Stare decisis limits personal preferences
of the judges and this protects the court’s legitimacy. Cardozo: Judges
expected to be objective and people must feel court being objective. Public
Legit as legally it may be legit but public should see it to be legit or else courts
legit would fade.
 o Ensuring Judicial Efficiency: If you keep reexamining issues which are
settled in the precedents and reopening cases, then will increase case-load and
reduce inefficiency.
o Method of philosophy does not emerge blindly but idea of justice which underlies.
These 4 principles: quest for certainty, uniformity, to preserve legitimacy and
efficiency. Now, we see there is an empirical trend that court is not relying on
precedents as much as it used to.
o What is the Court doing while not applying the precedent? Will see cases tomorrow.
Stare Decisis operates in interesting ways as a decision by 9 bench (8:1) will be
overruled by 11 bench (7:4). 7 judges opinion overrules 8 in that sense.
o Even the rule of per incuriam is not settled. Can a smaller bench hold that that the
decision of a 5 judge bench is per incuriam?
o RC Cooper’s bench was larger where they said who can approach the Court in PIL
but in later cases, such as SP Gupta, this was not followed.
04/09/2022
o Looking at how the SC applies or refuses to apply the precedent. What way does it
shirk way from applying a binding precedent. A binding precedent is a decision of a
coordinate or larger bench. The way stare decisis applies is that a bench is bound by a
decision of larger or an earlier coordinate bench. But empirically, we see that the
Courts have not applied the binding precedents. [Con law cases, need to see only
precedent and not substantive law or Consti reasoning]
o The first two sets of cases: not doing a close reading because the Court doesn’t
engage with precedent at all. Doesn’t cite as if it doesn’t exist.
o First case: S P Gupta v. Union of India (1981 Sup SCC 87) Law laid down is
that locus standi was widened and who can approach the court. In RC
Cooper, SC in bank nationalization where petitioner was shareholder and
whether seizure of property affected him. Court laid down that you cannot
approach the court unless you are the aggrieved party only exception Art 17,
23, 24 or Habeus Corpus Case. It was a bench of 11 (10:1) decided. The bench
in SP Gupta was 6 judges in the majority. S P Gupta refuses to meaningfully
engage with law laid down in RC Cooper. What Justice Bhagwati says that the
rule of locus is colonial, ancient vintage and we need to widen because we
need to engage meaningfully. Doesn’t even refer to RC Cooper. The
 judgement derogates the law laid down in RC Cooper and should be per
incuriam. Should have referred to a larger bench. [The reasoning is not a
problem, not referring it to the precedent is the problem]
o Bandhua Mukti Morcha v. UoI: Some people were bonded labour, petition
filed and maintainability was questioned. Justice Bhagwati w/o referring to
RC Cooper: says traditional rule of Anglo Saxon Jurisprudence does not apply
to the transformative vision of the Constitution. In terms of precedent, the
Court simply turns a blind eye on binding precedent in RC Cooper.
o These two cases do not refer to the relevant precedent.
o Another set of cases where this has happened: 226 before 32
o Romesh Thapar: Law from jurisdictional standpoint, went to SC under Art
32. This individual has approached the Court directly before HC under 226
and a prelim objection by Adv Gen of Madras that HC should have been
approached (Para 3) Court rejected this by saying the remedy provided under
Art 32 is a guarantee under FR and the remedy itself is a remedy. We cannot
refuse to entertain application on this basis.
Court said: Art 32 is not only after exhausting Art 226.
o Kanubhai Brahmbhat v. State of Gujarat (1989 2 SCC 310): Here a 2
judge bench of the SC, uses an analogy for SC being a super specialist heart
surgeon and if the Court entertains everyone else, then they can't perform heart
surgeries. So litigants should go to general hospital first.
Why litigants should go to HC first before coming to SC:
1. No reason why HC cant dispense justice
2. Should inspire faith in litigants that HC will do justice
3. SC has a lot of SLPs pending
Just doesn’t engage with Romesh Thapar which was 7 (6:1) Bench. [Have to
see the total bench strength and not what is the number in majority]
o Another Set of cases: Art 21 Rt to Livelihood
o Re Santram (1960): 5 Judges: Facts were that a person in the premises of the
Court who was alleged to be an agent to get work done. He was evicted from
court premises and claimed Rt to Livelihood and the Court goes into a textual
analysis while rejecting. Court says Rt to life doesn’t include livelihood and
19(1)(g) and 16 to an extent includes it but not Art 21.
 This is significant as what the Court does: based on a textual reading we
cannot infer a Rt to livelihood under Art 21. (Para 12: With reference to the
terms of Art. 21, it was also argued by the appellant himself, after he had been
permitted by the Court to dispense with the services of his advocate, that life
must include livelihood. The argument that the word "life" in Art. 21 of the
Constitution includes "livelihood" has only to be stated to be rejected. The
question of livelihood has not in terms been dealt with by Art. 21 of the
Constitution. That question is included in the freedoms enumerated in Art. 19,
particularly clause (g), or even in Art. 16 in a limited sense, but the language
of Art. 21 cannot be pressed into aid of the argument that the word "life" in
Art. 21 includes "livelihood" also. Even if this extreme proposition were to be
accepted as well founded, the appellant will have to be kept out of the precinct
of the Court only after the procedure established by the rules of this Court has
been observed. We have already held that the rule in question is not ultra
vires.”
Court laying this down in a general sense and not in the facts of the case.

o Olga Tellis: Rt to Life includes Rt to Livelihood under Art 21. The Bench
strength is 5 judges
Now, Court in Olga says that Sant Ram deals with nefarious activities and
in that respect it is a binding precedent but not in humble and honorable
livelihood which is protected under Art 21 (Para 34: Distinguished with
Santram) The ratio in Santram is in general sense but instead of referring to a
larger bench, Court says that it is distinguishable on this ground but it is not
the case. Bench of coordinate strength should have referred. The reason why
Courts doesn’t refer cases is because they fear loss of control over the
outcome because CJI is the master of the roster. [If you see the bench,

o Next set of cases: Free Speech

o Hamdard Dawakhana : Commercial Speech is not speech under 19(1)(a).
1960 decision of the 5 judge bench. What’s interesting is that Court relied on a
US Case (Valentine): Commercial Ads won't be counted as speech. The
 question is how is this decision by a 5 judge bench is dealt with in 1985 case
of Indian Express.
o Indian Express Newspapers v. UoI: This is a 3 judge bench and the custom
duty on print paper was increased and the Indian Exp said that we can't
advertise and have to reduce which is a violation of free speech. Govt said no,
Hamdard applies. The Court said that (Para 93) 1) observations in Hamdard
was too broad and court went beyond what was needed. 2) Court says
Valentine in US was overruled by Virgnia State Pharmacy v. Virginia State
Consumer Council and therefore, since the case Hamdard followed is not good
law, why should be look at it? Two problematic reasons to not look at
precedent.
o Tata Press Ltd v. MTNL (1995): What this case did was a combined reading
of Hamdard and Indian Express to say that commercial speech is protected
under 19(1)(a). [5 judge bench says commercial speech not speech, then 3
judge bench says too broad, included in speech and then the next 3 judge
follows the previous 3 judge and the 5 bench decision is not visible anywhere]
Problem in Tata is the Court says commercial speech is about idea but that is
opposite to Hamdard which says commercial speech does not include the core
of idea. Tata does the opposite in the name of doing a combined reading.
Problematic because the Court is doing away with precedent.

o Obscenity Cases:
o Ranjit Udeshi: 5 judge bench says basically you need to apply Hicklin Test
(English test) which says how will obscenity affect those who are the most
vulnerable i.e. children and influenceable adults. Looked at the Roth Test in
US which says frame of reference is an average person not child. Court said
Roth Test is not compatible in India but rather Hicklin is better suited. This
became the law of the land for obscenity
o Avik Sarkar v. WB: Interracial Couple on the cover of a magazine and semi-
naked which was displayed in the Store. Store owner was prosecuted. This
was 2 judge bench and said that the Hicklin Test is outdated and no longer
keeping up with the society and the standard of obscenity should change.
Instead, the Court Para 23: Community Standard Test to see how an average
 person would be affected (This reminds of Roth Test which was expressly
rejected in Ranjeet Udeshi) Court says outdated and we need a new standard.
Essentially, the Court not applying binding precedent because the times have
changed. If the Court would have showed a shift in judicial reasoning for
obscenity would be fine but the Court discards the test saying that the times
have changed. Court should have made a reference to a larger bench.

o Manifestly Arb:
o KT Plantation v. State of Karnataka (2011 9 SCC 1) arose in relation to Rt
to property after it was not FR. Court says we cannot substitute Legislatures’
wisdom as our own and we cannot strike down a legislation because
manifestly arbitrary.
o Shayra Bano: Test of Manifest Arbit (5 Judges). Shayara Bano does not
engage with a coordinate strength decision.
In Shayara Bano Nariman: All he does is that he reproduces certain
paragraphs and says a plea of manifestly arb cannot be used to strike down a
legis when Rt to prop is not an FR. What happens here: In KT Plantation (Para
120) a submission is made by the counsel that whenever there is arb in State
Action, then Art 14 comes into play and can be struck down. This was
rejected. The Author says that this broad argument was raised but was
rejected. Can we not say the Court is laying down a general proposition not
just Rt to Prop
o Reservation
o Indira Sawhney: No reservation for promotion and then amendment to
16(4A) which was challenged in M Nagraj which says reservation can be
made in promotion but needs to quantify with data on backwardness. IN
Jarnail Sigh, the requirement for data is wring because Sawhney says SC and
ST are backward by the virtue. All three are 5 judges. Court says
o Don’t look at substance/merits of cases but just precedent application.

For exam: Cardozo Chap 1: what is he saying about the method and the Shrutanjaya
Reading.