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Introduction
CHAPTER 1
INTRODUCTION
1 Scope of Research
2 Object of Research
3 Significance of Research
4 Hypothesis
5 Design, Research Method
6 Meaning of Interpretation and Construction
6.1 Interpretation
6.2 Construction
6.3 Mimansa
6.4 Meaning of Statute
6.5 Meaning of Judge
7 Object of Interpretation
8 Ambiguity
9 Application of various modes of interpretation
INTRODUCTION:
All courts perform a dual function; they resolve disputes and they
regulate the future. A court’s decision purports to justify the result in the
controversy before it and to guide the behaviour of the others – whether
1
private individuals, corporate officers or public officials – whom
someday may wish to avoid similar controversy.1
1
Harry H. Wellington: Interpreting the Constitution – First Indian Reprint 2005, p. 3
2
Harry H. Wellington: Interpreting the Constitution, Ibid, p. 5
2
The main duty of the court is, to deal with the substantive law, with
which they are supplied by the State, and with the facts, with which the
parties proposed to supply that. To assist them in respect of the greater
duty, there is the law of evidence. To assist them as regards the former
duty, there are the rules of interpretation. Thus, the rules of interpretation
stand side-by-side with the rules of evidence. Yet, the rules of
interpretation have scarcely received that degree of attention as to the
rules of evidence.3 One of the reasons is a conception that the judges
know to interpret the law without any hard and fast rules to guide them.
3
This research work is intended to focus on the various principles of
interpretation which are being adopted by the Courts as well as the
mimansa rules of interpretation during the process of administering the
justice to the people. It also includes the case studies as well as analytical
study of the principles of interpretation of the statutes.
1 SCOPE OF RESEARCH:
2 OBJECT OF RESEARCH:
4
Earlier the most popular opinion was that Judges should always, in
every decision, follow the Law rather than try to improve upon it. They
may not like the Law they find but they must enforce it. According to this
procure opinion, some Judges do not accept that vice constraint; covertly
or even nakedly, they bend the Law to their own purposes or politics or
thinking. They are labeled as bad Judges, the usurpers and destroyers of
the democracy. Of course, some people take the contrary view that
Judges should try to improve the Law whenever they can.
It is said that the Judges who enforce the Law as it is with no care
for the misery or injustice or inefficiency that follows are termed as
Mechanical Judges. Whereas the Judges who try to improve and to do
Justice by bending Law are termed as Progressive Judges.
5
3 SIGNIFICANCE OF RESEARCH:
4 HYPOTHESIS:
6
During this research work various aspects relating to the process of
interpretation will be tested.
6.1 INTERPRETATION:
Interpretation is a familiar feature of law and legal practices.
Interpretation is an important aspect of the practice of law. Interpretation
has very important role in justice administration in the sense that it helps
the legal system “understand” the law.
7
explanation by the Judges of the meaning of the words or phrases
contained in a statute.
Interpretation is the art of finding out the true sense of any form or
words; i.e. the sense which their author intended to convey, and of
enabling other to drive from them the same idea which the author
intended to convey. Interpretation only takes place if the text conveys
some meaning or other.5
8
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.10
10
Gray: Nature and Sources of Law, as referred to by Benjamin N. Cardozo in The
Nature of the Judicial Process, Ibid, p. 15
11
Benjamin N. Cardozo, Ibid, p. 20
12
Holland on Jurisprudence, Thirteenth Edi., Indian Economy Reprint, 2011, p. 425
13
Roscoe Pound – Jurisprudence, Vol.III , pp. 424-425
9
Interpretation is also an agency of growth of the traditional element
of law in that it is one of the points of contact between law and morals.14
A point of contact between law and morals is to be found in
interpretation. As an agency of growth, interpretation has to do with the
imperative element of a system of law.
14
Roscoe Pound – Jurisprudence Ibid, p. 467-468
15
Roscoe Pound: Jurisprudence, Vol. I, 1959 Edition, p. 166
16
Dias – jurisprudence, 5th Edition, 1994, p. 166
17
Roscoe Pound: Jurisprudence ,Vol.III, p. 473
10
implications of pre-existing rules or the logical content of legal
principles.18
18
Roscoe Pound – Jurisprudence, Vol.II, 1959 Edi., p. 240
19
Roscoe Pound – Jurisprudence, Vol. IV, Application and Enforcement of Law, 1959
Edi., p.7
20
Murty, B.S. “Prescriptions of Social Policy”, Vol-25 [2] JILI-1983- p.174.
11
statute is a craft as much as a science and the judge as craftsman select
and apply the appropriate rules as the tools of their trade.21
Interpretation is the act of finding out the true sense of any form of
words, that is, the sense which the author intended to convey, and of
enabling others to derive from them the same idea which the author
intended to convey. In the legal jargon the words Judicial Interpretation
and Statutory Interpretations are being used. Judicial Interpretation means
an interpretation of law by judiciary whereas in Statutory Interpretation
there is determination of the meaning of the legislation. It only text place
if the text conveys some meaning or other.
12
apparent when the word is considered abstractly, or when given its usual
meaning. Words in any language are not scientific symbols having any
one precise or definite meaning, and language is but an imperfect medium
to convey one’s thought, much less of a large assembly consisting of
persons of various shades of opinion. 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. The problem of interpretation is a problem
of meaning of words and their effectiveness as medium of expression to
communicate a particular thought. A word is used to refer to some object
as situation in the real world and this object or situation has been assigned
a technical name referred.24 Each word is but a symbol which may stand
for one or a large number of objects.25
24
Jusice G.P. Singh: Principles of Statutory Interpretation, 5th Edition, p. 3
25
Dy. Chief Controller of Imports & Exports v. Kosalram, A.I.R. 1971 S.C., pp.
1283, 1289.
26
U.P. Bhoodan Yagra Samiti v. Brij Kishor: [1989] 4 S.C.C., p. 281
27
Benjamin N. Cardozo, Ibid, p. 17
13
6.2 CONSTRUCTION:-
The Court has to harmonise the letter and spirit of an enactment.
The idea is to get at the ‘intent of the legislature’. But this expression is
ambiguous. It may connote either the meaning or the purpose of
legislation. And the two methods are known respectively by
“interpretation” and “construction”. In practice, one cannot be separated
from the other, because it is difficult to see where ‘interpretation’ leave
off and ‘construction’ begins.
14
Construction is the drawing of conclusions respecting subjects that
lie beyond the direct expressions of the text, from elements known from
and given in the text, conclusions which are in the spirit, though not in the
letter of the text. Construction is resorted to when, in comparing two
different writings of the same individual, or two different enactments by
the legislative body, there is found contradiction where there was
evidently no intention of such contradiction in one or another, or where it
happens that part of a writing or declaration contradicts the rest. When
there is the case in the nature of the document or declaration, or whatever
also it may be, is such as not to allow as to consider the whole as being
invalidated by a partial or other contradiction, then resort must be had to
construction; so too, if found to act in cases which have not been foreseen
by the framers of those rules, by which we are nevertheless obliged for
some binding reasons, faithfully to regulate as well as we can our action
respecting the unforeseen case.
6.3 MIMANSA:
The Mimansa – the rules of interpretation of the sacred scriptures
of ancient Hindu Law is one of forensic source of law. The various rules
of mimansa has been systematically developed in most scientific manner.
15
Equity and Good Conscience. Dharma or the Justice, and Yukti or the
Equity and the reason were the foundations of justice or “No decision
should be made merely exclusively according to the letter of shastra, for
in a decision devoid of Yukti, failure of justice occurred. (Brihaspati
II.12, Artha.III.II.51.55) Nyaya always referred Equity and Reason and in
case of difference between different smritis first Manu Smriti was to be
followed otherwise that Smriti which agreed with principles of Nyaya
(Equity and good conscience) was to be followed. [Yajnavalkya II.21,
Gautama XXVII.48, Manu.XII.108]
16
was written in the middle of the 19th Century) we have been doing
interpretation for 2500 years or so.28
17
compensation. The LIC policy mentioned that compensation was payable
on death or permanent disability. Permanent disability was defined in the
policy as (a) loss of both the eyes, or (b) amputation of both legs, or (c)
amputation of both the hands, or (d) amputation of one hand and one leg.
The LIC rejected the claim, saying that the right hand was only paralyzed,
and not amputated. It was observed that now, if we follow the literal rule
of interpretation the LIC was correct. However, Hon’ble Justice Katju
allowed the petition holding that here the literal rule has not to be
followed, and instead the linga or lakshana principle has to be followed as
after all, paralysis of the hand was as bad as amputation of the hand,
because both lead to loss of the use of the hand.
32
AIR 1992 ALL 351
18
that the State Government must give opportunity of hearing, otherwise it
would expressly have mentioned it in the second proviso (as it had in the
first). However, using the anushanga principle which states that an
expression occurring in one clause is often also meant for a neighboring
clause, and it is only for economy that it is not mentioned in the letter,
Hon’ble Justice Katju held that the State Government must also give
opportunity of hearing.
19
principles have rarely been used in our law Courts. It is nowhere
mentioned in our Constitution or any other law that only Maxwell’s
Principles of Interpretation can be used by the Court. We can use any
system of interpretation which helps us solve a difficulty. In certain
situations Maxwell’s principles would be more appropriate, while in other
situations the Mimansa Principles may be more suitable.34
34
M/s. Ispat Industries Ltd. v. Commissioner of Customs, Mumbai, 2006 (9) Scale
652; Gujarat Urja Vikash Nigam Ltd v. Essar Power Ltd., AIR 2008 SC 1921;
Surjit Singh v. Mahanagar Telephone Nigam Ltd., AIR 2008 SC 2226; Dr. Rajbir
Singh Dalal v. Chaudhari Devi Lal University, Sirsa & Anr., AIR 2009 (Supp.)
768; B. Premanand & Others v. Mohan Koikal & Others, AIR 2011 SC 1925
35
Surjit Singh v. Mahanagar Telephone Nigam Ltd., AIR 2008 SC 2226
20
Pathakarmanyaya:
Dyayo-Pranayantinyaya:
Hadhyadipikanyaya:
Mandukaplutinyaya:
Gobalivardanyaya:
‘Cattle and bull’. If two words having similar meaning are used
and one is general and the other is more specific, the later word
qualifies the former. (ejusdem generis).
Ghatapatanyaya:
If two words of different gerera appear one after other they do not
control the meaning of each other.
Samanjavisheshanyaya:
Kakadantaparikshanyaya:
21
Shringagrahikanyaya:
“Seizing the bull by its horns”. To meet the most difficult point
first.
Kakataliyanyaya:
Jalanayananyaya:
(Modern: “Qui facit per alium, facit per se”, who does through
another does it himself.)
Ahishiddhamanumatam:
Ajatputranamokkirtananyayaha:
22
JAIMINIS’ RULES OF INTERPRETATION:
The well known scholar Jaimini has enumerated various rules of
interpretation which may be called as Mimansa Rules of Interpretation.
Summarily, they may be mentioned as follows: -
(8) From express texts dealing with one subject, a rule can be deduced
by analogy (Atidesa) as applicable to another subject of the same
class when there is no impediment.
23
(11) Mimansa Rules of interpretation prescribed logical Methods:
Purvapaksha = proposition to be discussed, then Uttarpaksha = a
refutation of wrong view, then Siddhanta = conclusion.
(12) The Sarthakya axiom provided that every word and sentence has
some meaning and purpose. The texts shall be interpreted in such a
way that no provision is rendered meaningless.
(14) The arthaikatva maxim required that the same word or sentence
should not be given different meanings in the same law.
24
(17) Under the Vikalya rule if there was real conflict between two
provisions it should be presumed that those were allowed options.
36
P. M. Baxi: Legal Interpretations (Ancient & Modern), Ibid, p. 3
25
It is said that the attempt to define the term “law” is a useless
endeavour.37
The law in the wider sense covers all spears of human activities. It
is concerned with social relationship of men and the social consequences
ensuing there from. It is said that the aim of the law is to secure ends of
justice and it is to reach this end that courts of law have been established.
A very old use is to mean the order of the universe. A modern use
is o refer to regular sequences of phenomena explained by hypothesis of
rules or principles underlying the sequences. The phenomena of physical
nature, of biology, of history, of linguistics, and of morals may be
referred to laws in this way.38
Philosophical school has used the term in the phrase “natural law”
to mean a body of ideal principles, for the guidance of conduct and
ordering of relations, derived by reason.
37
W. Friedmann, Legal Theory, 4th Edition, 1960, p. 273
38
P. M. Baxi: Legal Interpretations (Ancient & Modern), Ibid, p. 5
39
P. M. Baxi: Legal Interpretations (Ancient & Modern), Ibid, p. 23
26
According to Analytical, ‘law’ is aggregate of sanctioned rules of
conduct which have the guinea stamp of a politically organised society, or
as the aggregate of rules and principles for determining controversies
recognised or established by the appointed authorities of such a society,
or as a body of threats of exercise of the force of such a society, or as a
body of predictions as to how and when that force will be applied.
40
Roscoe Pound: Interpretation of Legal History, p. 156
27
guidance of an intelligent being by an intelligent being having power over
him.”41
41
Austin: 1 Jurisprudence (3rd Edi.1864) p. 88 as referred to by Roscoe Pound, Ibid,
p. 71
42
Principles of Morals & Legislation (1780) 330 as referred to by Roscoe Pound:
“The Nature of law” – Jurisprudence – Vol.III, p. 69
43
Roscoe Pound, Ibid, p. 70
44
Roscoe Pound: Jurisprudence, Volume I, 1959 Edition, p. 12
28
silently and unconsciously from one age to another. But law is also
conscious or purposed growth.
In another sense the term “law” is used to mean the legal order. It
is used to mean the regime of ordering human activities and adjusting
human relations though the systematic application of the force of a
politically organized society.48
45
Benjamin N. Cardozo, Ibid, p. 112
46
Benjamin N. Cardozo, Ibid, p. 113
47
Roscoe Pound, Ibid, p. 6
48
Roscoe Pound, Ibid, p. 13
29
whether as it actually text plays or as it is conceived it ought to take
place.49
Law in the sense of the legal order has for its subject matter
relations of individual human beings with each other and the conduct of
individuals so far as they affect others or affect the social or economic
order.
49
Roscoe Pound, Ibid, p. 14
50
Benjamin N. Cardozo, Ibid, p. 127
51
Roscoe Pound – Jurisprudence, Vol. III, p. 5
30
The law is not a homeless, wandering ghost. It is a phase of human
life located in time and space. 52 The law consists of the rules recognized
and acted on by courts of justice through in the modern concept of law
with social emphasis it also balances the benefits secured by its obedience
with the harm resulting from enforcement by its compulsion.
It is for the expression and realization of justice that the law has
been created, and, like every other work of men’s hands, it must be
defined by reference to its end and purpose. In idea law and justice are
co-incidence. The law is the instrument which the State uses to promote
justice. Justice was regarded as maintenance of the social status quo, and
philosophers were busied in planning an ideal society in which everyone
was put in the right place, to be kept there henceforth by the law.53Justice
demanded an unanimity in which there would be no violation of mutual
claims or spheres of authority i.e. in which each would keep within his
appointed sphere, and right and law took account primarily of relations of
inequality in which individuals are treated in proportion to their worth,
and only secondarily of relations of equality.54 Justice looks to an ideal
social order; the moral ideal to an ideal man.
52
[M. R. Chohen: Reason and Law, 4 (1950)]
53
Roscoe Pound, Jurisprudence , Vol.I, 1959 Ed., p. 465
54
Roscoe Pound, Jurisprudence , Ibid, p. 467
31
making through legislation is indispensable to the regulation of the
modern state.
Law looks to acts and only to thoughts and feelings so far as they
indicate the character of acts and determine the threat to the general
security which they involve.56The term ‘law’ is used to mean the legal
order, that is, the regime of adjusting relations and ordering conduct by
the systematic and orderly application of the force of a politically
organized society.57 Law is the sum of the general rules for the common
life of man which themselves point out the source of their obligatory
force.58
55
Roscoe Pound: The Nature of Law, Vol.II, 1959, p. 6-7
56
Roscoe Pound Ibid, p. 253
57
Roscoe Pound Jurisprudence, Vol. II , pp. 104-105
58
Roscoe Pound – Jurisprudence, Vol. I, 1959 Edi., pp. 172-173
32
variety of interactions between social evolution and legal change. Logic,
and history, and custom, and utility, and the accepted standards of right
conduct, are the forces which singly or in combination shape the progress
of the law.59The final cause of law is the welfare of the society.
The law that has its source in legislation is called enacted law or
statute law. A statute law is expressed in general or abstract terms. Statute
law is the principal source of modern law. It is quickly made, definite,
easy of access and easy to prove. A statute, it is said, is law as soon as it
is passed; it does not have to wait for recognition by the courts before
becoming entitled to the name ‘law’. The courts recognize a statute
because it is law; it is not law merely because the courts recognize it.
Statute may be regarded as a body of universal, absolute, binding rules.
Law is meant to serve the living and does not beat its abstract
wings in the jural void. Its functional fulfilment as social engineering
depends on its sensitized response to situation, subject-matter and the
complex of realities which require ordered control. A holistic
understanding is simple justice to the meanings of all legislations.
Fragmentary grasp of rules can misfire or even backfire.60
59
Benjamin N. Cardozo, Ibid, p. 112
60
Board of Mining Examination v. Ramjee, AIR 1977 SC pp.965, 967 : (1977) 2 SCC
256 : (1977) 34 Fac. L.R. 381 : (1977) 2 SCR 904
61
M/s. Bishamber Dayal Chandra Mohan v. State of U.P., AIR 1982 SC pp.32, 48
33
down a general course of conduct. The term ‘Law’ in Article 245 of the
Constitution must be construed so as to include in its scope all legislative
Acts enacted in the prescribed manner and form.62
Statute law and judge-made law are not the only laws. There is
something like a common or general law, the principles of which govern
the making of judicial decisions and which courts and Tribunals state
from time to time.64
34
to his personal matters and may have no impact on the public at large.
That is why it is unsound to suggest that the jurisprudential distinction
between orders which are judicial, executive or legislative or in relation
to purely individual and personal matters should be treated as irrelevant
in dealing with Acts or orders passed even by an absolute monarch.65
The word “law” in its literal sense, may include constitutional law
but it was pointed out that “there is a clear demarcation between ordinary
law, which is made in exercise of legislative power, and constitutional
law which is made in exercise of constituent power. The scheme of the
relevant provisions of the Constitution was then examined and ultimately
the Court reached the conclusion that though both Articles 13 and 368 are
widely phrased, the harmonious rule of construction requires that the
word “law” in Art, 13 should be taken to exclude law made in exercise of
the constituent power.67
65
Raj Kumar Narsingh Pratap Singh Deo v. State of Orissa, AIR 1964 SC pp.1793,
1797 : 1964 All LJ 921 : (1964) 2 SC W.R. 40 : 1965 (1) Cr. L.J. 94
66
K. O. John v. State, AIR 1956 TC pp.117, 118 : 1955 K.L.T. 752 : ILR 1955 TC
1274
67
Sajjan Singh v. State of Rajasthan, AIR 1965 SC pp.845, 856 : (1965) 1 Mad L.J.
(SC) 57 : (1965) 1 SCJ 377 : (1965) 1 An WR (SC) 57
68
AIR 1958 SC 538; R. Jacob Mathew v. State of Kerala, AIR 1964 Ker pp.39, 67 :
1963 Ker. L.T. 783 : 1963 Ker. L.J. 820
35
A law must follow the customary forms of law-making and must
be expressed as a binding rule of conduct. There is generally an
established method for the enactment of laws, and the laws when enacted
have also a distinct form. It is not every indication of the will of the Ruler
however expressed, which amounts a law. An indication of the will meant
to bind as a rule of conduct and enacted with some formality either
traditional or specially devised for the occasion, result in a law but not an
agreement to which there are two parties, one of which is the Ruler.69
The mere fact that the Executive Head also enjoyed legislative
powers for the State does not lead to the conclusion that every order
passed by him, in whatever capacity, would have the status of “law” or “a
provision having the force of law”. It is not correct to say that the Ijlas-i-
khas order was a law in Patiala State and therefore, it became the law for
the State of Pepsu. It was merely an executive order issued by the
Executive Head of the State with a view to lay down certain guiding
principles in the matter of determining seniority of its subordinate
officers. Therefore, the Order or the Rules framed by it did neither
amount to “law”, or “having framed thereunder” nor “a provision having
the force of law”. It was merely an executive Order. It is the nature of the
order that would determine its source and the capacity in which it was
made. The name assigned to it may not be very much material, but the
purpose for which the Order was made may be regarded as one of the
decisive factors. Under the circumstances, the Rules could at any time be
amended, superseded or annulied as the exigency demanded by the
Rajpramukh the Executive Head of the Pepsu State. The contention that it
69
Bengal, Nagpur Cotton Mills Ltd., AIR 1964 SC 888; State v. Bundi Electric
Supply Company, AIR 1970 Raj. pp.36, 46 : ILR (1969) 19 Raj. 340 : 1969 Raj
LW 473
36
was for the Legislature of the State to alter or amend those rules was
repelled.70
The expression “law” used in clause (5) does not mean merely the
direct expression of the will of the Legislature; in its context the
expression “law” must include the lawful expression of the will of some
authority to whom power is delegated by the Legislature. The expression
“property declared by law to be evacuee property” includes property
which is declared by notification issued by the Custodian under the
Administration of Evacuee Property Act to be evacuee property.72
When the Supreme Court construed Art. 286 (1) of the Constitution
in the United Motors case, their interpretation became the law not only
70
Gurbachan Singh v. State of Pepsu, AIR 1956 Pepsu pp.26, 28
71
B.S.M. S. Samity v. State, AIR 1961 Cal. pp.214, 217 : 95 Cal. W.N. 685
72
S. A. Mills Corpn. V. Custodian of Evacuee Property, AIR 1957 Bom. pp. 119, 129
: ILR 1957 Bom, 668 : (1957) 59 Bom. 668 : (1957) 59 Bom. LT 309
37
from the date of decision but it should be deemed to be the correct
interpretation from the date of Constitution itself. The consequential
effects flowing from the law so laid down should necessarily follow
subject of course to the law of limitation or special rule such as res
judicata in civil cases or autre fois acquit or convict in criminal cases
provided in the special statutes.
Statutes are not always rational and it may not be within the
province of the court to import rationality in an enactment under the guise
of interpretation.73
73
Lakshmi Ammal v. Ramchandra, AIR 1960 Mad, pp.568, 570
74
Roscoe Pound – Jurisprudence, Ibid, p. 324
75
John Austin: The Province of Jurisprudence Determined Indian Economy Ed. 2012,
p. 26
38
the state. On the other hand, there is the idea of law as the manifestation
of an immutable and eternal right and justice.76
“The law is what the judges say it is. If the House of Lords were
to give an Act of Parliament a meaning which no one else
thought it could reasonably bear, it is their construction of
words used on preference to the words themselves that would
become the law”.81
76
Roscoe Pound, Ibid, p. 23
77
Jones v. Secretary of State for Social Services, (1972) AC 944, (1972) 1 All E R pp.
145-184 as referred to by Dias, Ibid, p. 167
78
Salmond, Ibid, p. 116
79
Salmond on Jurisprudence, 12th Edition, p. 48
80
Salmond, Ibid, p. 115
81
Delvin, Samples of Law Making P.2, as referred by Dias, Ibid, p. 166
39
6.5 MEANING OF JUDGE:
82
Holland on Jurisprudence, Ibid, p. 325
83
Benjamin N. Cardozo: “The Nature of the Judicial Process”, Fifth Indian Reprint
2004, pp. 133-134
40
power to overrule even the most deliberate and popular decisions of other
department of government if it believes they are contrary to the
constitution, and it therefore has the last word on whether and how the
States may execute murderers or prohibit certain things etc.
Any Judge, one might, suppose, would find it easy to describe the
process which he had followed a thousand times and more. Nothing could
be further from the truth. Let some intelligent layman ask him to explain:
he will not go very far before taking refuge in the excuse that the
language of craftsmen is unintelligible to those untutored in the craft.
Such an excuse may cover with a semblance of respectability an
otherwise ignominious retreat. It will hardly serve to still the pricks of
curiosity and conscience.
41
(8) At what point shall the quest be halted by some discrepant
custom, by some consideration of the social welfare, by any
own or the common standards of justice and morals?84
42
without any fear or favour. A judicial Judgment should be a judgement of
objective right and no subjective and free opinion; a verdict and not a
mere personal fiat.
According to Professor Gray, “We all agree that many cases should
be decided by the courts on notions of right and wrong, and, of course,
everyone agree that a judge is likely to share the notions of right and
wrong, prevalent in the community in which he lives; but suppose in a
case where there is nothing to guide him but notions of right and wrong,
that his notions of right and wrong differ from those of the community –
which ought he to follow – his own motions, or the notions of the
community?
Cardozo says that “My own notion is that he would by under a duty
to conform to the accepted standards of the community, the mores of the
times. In such cases one of the highest functions of the judge is to
establish the true relation between conduct and profession.85
The judge, even when he is free, is still not wholly free. He is not
to innovate at pleasure. He is not knight-errant roaming at will in pursuit
of his own ideal of beauty or of goodness. He is to draw his inspiration
85
Cardozo, Ibid, pp. 108-109
86
Cardozo: Ibid, p. 129
43
from consecrated principles. He is not yield to spasmodic sentiment, to
vague and unregulated benevolence. He is to exercise a discretion
informed by tradition, methodized by analogy, disciplined by system, and
subordinated t the primordial necessity of order in the social life.87
44
they interpret contract, property, vested rights, due process of
law, liberty, they necessarily enact into law parts of a system of
social philosophy; and as such interpretation is fundamental,
they give direction to all lawmaking. The decisions of the courts
on economic and social questions depend upon their economic
and social philosophy; and for the peaceful progress of our
people during the twentieth century we shall owe most to those
judges who hold to a twentieth century economic and social
philosophy and not to a long outgrown philosophy; which was
itself the product of primitive economic conditions.”90
90
As quoted by Cardozo – Ibid, p. 170
91
Cardozo – Ibid, p. 173, 174
92
Geny – as quoted by Cardozo – Ibid, pp. 173-174
45
a formalist, another a latitudinarian, one is timorous of change, another
dissatisfied with the present; out of the attrition of diverse minds there is
beaten something which has a constancy and uniformity and average
value greater than its component elements.”93 “Judges ought to be in
sympathy with the spirit of their times.”94
46
the custom. It is the customary morality of right-minded men and women
which he is to enforce by his decree.98
The first thing he does is to compare the case before him with the
precedents, whether stored in his mind or hidden in the books. If found,
then next step is to examine and compare them. If they are plain and to
the point, there may be need of nothing more. Judge has a authority to
settle all disputes which come before him.
98
Benjamin N. Cardozo –Ibid, p. 106
99
Benjamin N. Cardozo – Ibid, p. 14
100
Benjamin N. Cardozo – Ibid, p. 15
47
decisis.101 Power is never without responsibility and quantum of
responsibilities bears direct ratio to the amplitude of power. Whenever
public power is vested, the beneficiary is the people.102
Judges may differ as to the point at which the line should be drawn,
but the only sure safeguard against crossing the line between adjudication
and legislation is an alert recognition of the necessity not to cross it an
instinctive, as well as trained, reluctance to do so.103
7 OBJECT OF INTERPRETATION:
101
Dias Jurisprudence, Ibid, p. 166
102
Ibid, p. 40
103
W. Friedmann, Ibid, p. 461
48
The language of law has a rather dubious reputation in the lay
public. It is something that one cannot understand or at least not so easily,
it is full of special technical expressions, one can get away with saying
things in it that one cannot get away with in ordinary language or at least
not so easily, and so on. The use of legal language is a technical use of
language and thus distinct from ordinary use of language.
Communication pertaining to the domain of law takes place between the
law giver and the men of law in the first instance. This is typically one-
way communication from the law giver, who is not necessarily initiated
into the mysteries of law, to the judge and the counsel, who are
necessarily so initiated being men of law. This one-way communication
takes the form of statutes. It is often said that the statute is often
fragmentary and ill-considered and unjust.104
104
Benjamin N. Cardozo, Ibid, p. 16
105
Dias – Jurisprudence, 5th Edition First Indian Reprint 1994, p. 167
106
Benjamin N. Cardozo, Ibid, pp. 64-65
49
Words are often ambiguous. As such often it is necessary for a
judge to elucidate the meaning thereof. A court hears the evidence and
determines the facts, and any doubt as to the scope and applicability of a
given statutory provision may well be resolved by the view taken of the
facts. So discretion, even in the application of statute, is unavoidable.107
In the Middle Ages it was felt that the task of interpreting the law
should be discharged by those who ordained it, for the very word
‘interpretation’ connoted evasion.108
Under the Indian legal system equal importance is given to both (i)
Statutes and codes and (ii) Precedents. Because of the primacy of written
law, statutory interpretation assumes enormous importance. However,
India does not have any code of interpretation and statutory interpretation
function is done by judicial officer guided by different things.
107
Dias, Ibid, p. 168
108
Dias, Ibid, p. 168
50
A statute is the will of the legislature. One of the characteristics of
enacted law is its embodiment in authoritative formula. The very words in
which it is expressed – the litera scripta – constitute a part of the law
itself. Legal authority is possessed by the letter, no less than by the spirit
of the enactment. Hence it is that in the case of enacted law a process of
judicial interpretation or construction is necessary.109 The object of
interpretation is to find out the intention of the legislature.110
109
Salmond, Ibid, p. 131-132
110
Omar Tyab v. Ismial Tyab, AIR 1928 Bom., pp.69, 73
111
Julius Stone: Legal System and Lawyers’ Reasoning, First Indian Reprint 1999, p.
216
112
Jamnabai v. Suryabai, A.I.R. 974, Bom. 142.
51
Sometimes the rule of constitution or of a statute is clear, and then
the difficulties vanish. Even when they are present, they lack at times
some of that element of mystery which accompanies creative energy. We
reach the land of mystery when constitution and statute are silent, and the
judge must look to the law for the rule that fits the case.113
In order that the competent court may rightly apply the appropriate
law, it is necessary that the words of the law shall be properly
constructed–interpreted.
The difficulty calling for interpretation may be: (1) which of two or
more coordinate rules to apply; (2) to determine what the law maker
intended to prescribe by a given rule; (3) to meet deficiencies or excesses
in rules imperfectly conceived or enacted. Really it is a judicial finding or
making of law where legislation or the judicial or juristic tradition is
deficient, and ought to be recognized as such.114
8 AMBIGUITY:
52
of the meanings is intended. In the use of multi-defined words requires
the author or speaker to clarify their context, and sometimes elaborate on
their specific intended meaning. The goal of clear conscience
communication is that the receivers have no misunderstanding about what
was meant to be conveyed115.
115
http://www.wikipedia.com
116
Motor Owner’s Insurance Co., Ltd., v. Jadavji Keshoji Modi, (1981) 22 Guj LR
1208 (SC)
117
C.I.T., Madras v. Indian Bank Ltd., Madras, AIR 1965 SC 1473
53
penumbra of border-line cases.118 The usefulness of an analysis of
“meaning” for the clarification of legal language in statutes, court
decisions and legal treatises is obvious.119 An analysis of meaning can
uncover hidden ambiguities or inarticulate value assumptions, but it
cannot indicate directions.
The words of a statute when there is doubt about their meaning are
to be understood in the sense in which they best harmonise with the
subject of the enactment and the object which the Legislature has in view.
Their meaning is found not so much in a strictly grammatical or
etymological sense of language, not even its popular use, as in the subject
or in the occasion on which they are used and the object to be attained.121
Changes in the meaning of technical terms have to be reckoned with.122
118
W. Friedmann, Ibid, p. 273
119
W. Friedmann, Ibid, p. 273
120
Inland Revenue Commissioner v. Joiner, (1975) 2 All ER 1050 (HL), pp. 1058,
1059
121
Maxwell’s Interpretation of Statutes, 12th Ed. p. 76; State of U.P. v. Torlbit, AIR
1958 SC pp.414, 416; The Hyderabad (Sind) Electric Supply Co., Ltd. v. Union of
India, AIR 1959 Punj 199; Amrithammal v. Marimuthu, AIR 1967 Mad pp.77, 82
122
Roscoe Pound; Jurisprudence, Vol.III, 1959 Edition, p. 491
54
If a literal meaning has been given to the laws which forbade a
layman to ‘lay hands’ on a priest, and punished all who drew blood in the
street, the layman who wounded a priest with a weapon would not have
fallen within the prohibitions, and the surgeon who bled a person in the
street to save his life would have been liable to punishment. On a literal
construction of his promise Mohammed II’s sawing the Venetian
Governor’s body in two was no breach of his engagement to spare his
head; nor Tamerlane’s burying alive a garrison, a violation of his pledge
to shed no blood. On a literal construction, Paches, after inducing the
defender of Notium to a parley under a promise to replace him safety in
the citadel, claimed to be within his engagement when he detained his foe
until the place was captured, and put him to death after having conducted
him back to it; and the Earl and Argyll fulfilled in the same spirit his
promise to the laird of Glenstave, for he did not hang him until after he
had taken him safely across the Tweed to the English Bank.123
123
Maxwell: Interpretation of Statutes, 11th Ed., p. 17
55
question. Lord Atkin took the strong view that “the words in question
have a plain and natural meaning, that that meaning has invariably been
given them in many statements of the common law and many statutes,
that there has been one invariable construction of them in the courts….”
On the other hand, the majority (Viscount Maugham, Lords Macmillan,
Wright and Romer) regarded them as ambiguous, since they might
equally mean either (1) that the Secretary of State must have reasonable
cause, or (2) that he must in good faith think he has reasonable cause or
be “satisfied” that he has reasonable cause so to believe. In the context
and in the light of the policy of the Regulation they preferred the latter,
and held therefore that the good faith of the Minister being admitted, the
court could not inquire into the reasonableness of his belief.124
124
Liversidge v. Anderson, [1941] 3 All E R p. 338
125
http://www.wikipedia.com
56
into force after independence, shall be in force in the new territory? Or
does it mean that only such rules of common law and equity as are in
force at the date of independence shall apply in the territory? In other
words the phrase “in force at the date of independence” may govern all
three terms “common law, the rules of equity and the statutes “or it may
govern merely the term “statutes”.126 Only re-writing the sentence or
placing appropriate punctuations can resolve syntactic ambiguity.
57
has not occurred to the mind of the legislature, than that there exists with
respect to it a real intention which by inadvertence has not been
expressed.128 What, then, is the rule of interpretation in such cases? May
the courts correct and supplement the defective sententia legis, as well as
the defective litera legis? The answer is that they may and must.
All legal rules are far less certain than was once imagined. In so far
as rules of law are expressed in ordinary language, they too are prone to
this inherent imprecision, and even where the law defines the word with
new precision, this new definition must be given in terms of other words
belonging to ordinary language, so that uncertainty is never completely
ruled out.129
The other case where the letter of the law need not be taken as
conclusive is where a literal interpretation of the statute would lead to
such absurdity and unreasonableness as to make it self-evident that the
legislature could not have meant what is said. For example, there may be
128
Salmond, Ibid, pp. 136-137
129
Salmond, Ibid, p. 39
130
Salmond, Ibid, p. 137
58
some obvious clerical error in the text, such as a reference to a section by
the wrong number, or the omission of a negative in some passage in
which it is clearly required.
If the words used in the statute does not include the complete
thought of the legislature or if the words are equally susceptible of several
meanings the Judge has a greater liberty to interpret it and give proper
meaning to it then. It is said that when a court declares a statute as
ambiguous it asserts that some of the words used may refer to several
objects in the manner of that used does not disclose the particular object
to which the word refers. A word is but a symbol which directs the reader
to a reference, but in a case the reference is not sufficiently accurate to
make the referent determinable for the litigation before the court then in
that case it is the function of the court to make the referent determinant or
as determinant as possible from the information and evidence which is
presented to it. This exercise of the court will necessarily result in some
new meaning of the word of the statute.
59
words in the general unrestricted sense, or in a restricted sense with
reference to some particular subject matter.131
60
that the words to express a vital condition have been altogether left out,
the section should be construed as though the word ‘would’ were
transposed in the manner indicated.134
134
Salisbury v. Gilmore, (1941) 2 ALL ER 817; Lyde v. Barnard, (1836) 5 LJ Ex 117
135
Ijjatulla Bhuyan v. Chandra Mohan Banerjee, ILR 34 Cal pp.954, 969, 970 (FB);
John Summers & Soms, Ltd. v. Frost, (1955) All ER 870
136
Ram Nandan v. Kapil Deo, 1951 SCR pp.138, 144; Chandu Kutti v. Maha Devi,
AIR 1928 Mad 534
137
Vithoba v. Govindrao, AIR 1933 Nag pp.193, 197 (FB); State of U.P. v. Ram
Naran Lal, AIR 1966 All 63
138
Rukhmanibai v. Keshavlal Ramlal, AIR 1959 MP 187; Harbans Singh v. State of
Punjab, 1972 Cur LJ pp.168, 180; R. L. Sahni & Co. v. Union of India, AIR 1966
Mad pp.416, 418; R. D. Saxena v. State Industrial Court, 1982 JLJ 702 (MP)
139
H.R. Desai v. B. M. Batliwala, AIR 1968 Bom pp.62, 67; Sevantilal Maneklal
Sheth v. C.I.T., AIR 1968 SC 697
61
the absence of any ambiguity, there is no question of taking any external
aid to the interpretation.140 Even if there is some ambiguity in the
language of the University Ordinance or prospectus, one should accept
the interpretation placed upon it by the syndicate.141
Where the words used are ambiguous, it would clearly be the duty
of the Court to assign to them such meaning as would give effect to the
Act and as would be consistent with the object of the Legislature in
passing the Act.142 It is but fundamental that when two interpretations are
possible that which better effectuates the intention of the Legislature
would be adopted.143
62
interfere with the liberty of the subject.146 Where two constructions of a
provision of law are possible, the benefit of doubt must always be given
to the person on whose liberty an inroad has been made without trial.147
Where there is a reasonable ground for doubt as to the correct
interpretation of an enactment that interpretation should be adopted which
is most in favour of the person to be penalized, especially in fiscal and
penal statutes and which will prevent or will not permit an abuse of the
process of the law.148 Where an equivocal word or ambiguous sentence
leaves a reasonable doubt of its meaning which the canons of
interpretation fail to solve, the benefit of doubt should be given to the
subject and against he Legislature which has failed to explain itself.149
146
Karamvir v. State, AIR 1954 J&K 7
147
Ghulam Nabi v. State, AIR 1954 J&K 7
148
Emperor v. Himanchal Singh, AIR 1930 All 265 (FB); In Re Ghin Ah Yaing, 24 IC
pp.823, 825 as referred to in N. S. Bindra’s Interpretation of Statutes, Ibid, p. 491
149
Nagin Singh v. Jaggan Natha, AIR 1944 Lah 422, quoting Maxwell on the
Interpretation of Statutes, 7th Ed. At p. 248; Narendra Kumar v. State, AIR 1972
Bom pp.184, 189, as referred to in N. S. Bindra’s Interpretation of Statutes, Ibid,
p. 491
150
State of Punjab v. Prem Sukhdeo, 1977 UJ (SC) pp.281, 282; Commissioner of
Sales-tax v. Radha Krishan, (1979) 2 SCC pp.249, 257; Corborandum Universal
Ltd. v. Trustees of Port of Madras (1994) 1 MLW 183
63
and normal conceptions of what is right and what is wrong and of what is
just and what is unjust.151
151
Kalu Ram v. New Delhi Municipal Committee, ILR (1966) Punj 145: 67 Punj LR
1190
152
Rameshwar v. Jot Ram, AIR 1976 SC 1516,; Union of India v. B. N. Prasad, AIR
1978 SC 411; Shiveshwar Prasad Singh v. Ghurahu, AIR 1979 SC 413; State of
Haryana v. Sampuran Singh, AIR 1975 SC 1952.
153
Gangadhar v. Nirvachan, etc. Society, AIR 1971 MP pp.16, 19 : L. Bal Mukund v.
Lajwanti, 1975 ALL LJ 256 (SC)
154
Mukhdeo v. Harakh Nayarayan, AIR 1931 Pat pp.285, 291.
155
Sheo Nandan v. Emperor, AIR 1918 Pat pp.103, 105 (FB)
64
respectively in its quest for the true intention of the Parliament. In general
if it is alleged that a statutory provision brings about a result which is so
startling, one looks for some other possible meaning of the statute which
will avoid such a result, because there is some presumption that
Parliament does not intent its legislation to produce highly inequitable
results.156 When the words are capable of another interpretation which
gives effect to the policy underlying the section, such interpretation
should be preferred.157 If there are two possible interpretations, it is the
duty of a Court to accept that one which is more reasonable, more
consistent with ordinary practice and less likely to produce impracticable
results.158
156
Fry v. Inland Revenue Commissioners, (1958) 3 All ER pp.90, 94; Critts & CO. v.
Inland Revenue Commissioners (1953) 1 All ER pp.418, 421, as referred to in N.
S. Bindra’s Interpretation of Statutes, Ibid, p. 495
157
Smt. Bobba Suramma v. Peddireddi Chandramma, AIR 1954 Andhra pp.568, 570
158
United Provinces v. Mst. Atiqa Begum, 1940 FCR pp.110, 150; AIR 1941 FC 16;
Parameshwaran v. Narayanan AIR 1950 Mad 221
159
General Commercial Corporation v. Income-tax Commissioner, AIR 1955 Mad
pp.64, 66; Abdul Karim v. Municipality, Gulbarga, AIR 1967 Mys 127.
160
Controller of Estate Duty v. Alladi Kuppuswamy, (1977) 2 SCC pp.385, 396
65
The duty of the judicature is to discover and to act upon the true
intention of the legislature – the mens or sentential legis. The essence of
the law lies in its spirit, not in its letter, for the letter is significant only as
being the external manifestation of the intention that underlies it.
Nevertheless in all ordinary cases the courts must be content to accept the
litera legis as the exclusive and conclusive evidence of the sententia legis.
They must in general take it absolutely for granted that the legislature has
said what it meant, and meant what it has said.161 There are however,
cases where the letter of the law need not be taken as conclusive. The first
of these is where the law is logically defective. A Statute may suffer from
these different types of logical defect. First, it may be defective by virtue
of ‘semantic’ ambiguity. A word in an Act of Parliament may be
ambiguous as a result of the ‘open texture’ of language. A second kind of
ambiguity, which may be termed ‘syntactic’ ambiguity, arises from the
ambiguity of formal words like ‘or, ‘and’, ‘all’ and so forth. It is for
instance court is empowered to ‘fine or imprison” does this mean that the
court can either fine or imprison but not both? Or does it mean that the
court can fine, or imprison or both? In other words is the word “or” being
used exclusively or inclusively? In all such cases of ambiguity, whether
conceptual or syntactic, the letter of the Statute provides no solution.
Here the courts must decide between the two alternatives. In such a case
it is the right and the duty of the courts to go behind the letter of law and
to ascertain from other sources as best they can the principle intention
which has thus failed to attain perfect expression. A third kind of
ambiguity may be that such ambiguity may be that such ambiguities do
not arise from a failure to express accurately the intention of the
legislature. Perhaps the legislature speaks ambiguously because there is
no single and definite meaning to be expressed. If the words of the
161
Salmond: Jurisprudence – 12th Edition – p.132.
66
legislature are self contradictory, it is possibly due to some repugnancy
and confusion in the intention itself. If the text contains omissions which
make it logically imperfect, the reason is more often that the case in
question has not occurred to the mind of the legislature, than that there
exists with respect to it a real intention which by inadvertence has not
been expressed. In such a case the court can correct and supplement the
defective verbal expressions of the law. If the letter of the law is logically
defective, it must be made logically perfect, and it makes no difference in
this respect whether the defect does or does not correspond to one in the
intention itself. Where there is a genuine and a perfect intention lying
behind the defective text, the courts must ascertain and give effect to it;
where there is none, they must ascertain and give effect to the intention
which the legislature presumably would have had, if the ambiguity, in
consistency or omission had been called to mind. The other case where
the letter of the law need not be taken as conclusive is where literal
interpretation of the statutes would lead to such absurdity and
unreasonableness as to make itself evident that the legislature could not
have meant what it said.162
162
Salmond on Jurisprudence – p. 137
163
Salmond, Ibid, p. 136
67
9 APPLICATION OF VARIOUS MODES OF
INTERPRETATION:
A statute expresses a more or less general proposition. The task of
the judge is to find how far the facts before him can be fitted into the
abstract and generalizing definition of the statute. In applications of
precedent, on the other hand, the sorting out process starts with the
comparison of one set of facts with another set of facts. Even if the judge
in either case is possessed by a strong desire to do justice rather than to be
dominated by statutory texts or precedent, he will seek to attain his
objective by different ways.164
B. Golden Rule
164
W. Friedmann, Ibid, p. 451-452
165
W. Friedmann, Ibid, p. 456
166
Dias, Ibid, p. 170
68
A. Grammatical- Literal meaning Rule:
B. Golden Rule:
C. Mischief Rule:
69
These rules are being applied by the Courts while interpreting
various statutes. These rules are here as to interpret laws so that the
legislation serves its purpose for which it was enacted. The rules examine
the wording of the particular statute and are the most common approach
of interpretation of the English legal system. The three rules take different
approaches in the interpretation and some judges use one rule while
another prefers to use another rule. That is why we have three rules not
just one. This means that in English Legal System, the interpretation of
statute may differ depending upon which judge is hearing the case. Once
an interpretation has been made, a Judge can form a new precedent for
future cases in the same area of law. Since the three rules can result in
vary varied outcomes, it is important to understand the three rules. In the
succeeding chapters, these rules are discussed in detail.
70