Interpretation of Statutes

INTERPRETATION OF STATUTES PROJECT NATIONAL LAW UNIVERSITY ODISHA

INTERPRETATION OF STATUTES

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

SUBMITTED TO :

PROF.ABHIK MAJUMDAR ASSISTANT PROFESSOR OF LAW NATIONAL LAW UNIVERSITY ODISHA.

SUBMITTED BY: PURNIMA SRIVASTAVA

(2011/B.A.LL.B /040) RIYANKA ROY CHOUDHURY

(2011/BBA.LL.B./060)

1|Page

INTERPRETATION OF STATUTES PROJECT TABLE OF CONTENTS

INTRODUCTION ................................................................................................................................ 3 UNDERSTANDING PARLIAMENTARY AND LEGISLATIVE HISTORY ...................................................... 4 Parliamentary history ................................................................................................................. 4 Legislative history ....................................................................................................................... 4 IS LEGISLATIVE HISTORY BINDING .................................................................................................. 4 LEGISLATIVE HISTORY AND LEGISLATIVE INTENTION ...................................................................... 5 REASONS FOR THE COURT'S USAGE OF LEGISLATIVE HISTORY ....................................................... 6 IS LEGISLATIVE HISTORY USAGE MOTIVATED BY DISAGREEMENT AMONG THE JUSTICES.............. 7 THE

USE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN THE INTERPRETATION OF INDIAN

STATUTES :WITH REFERENCE TO CASE LAWS ................................................................................... 8 CONCLUSION .................................................................................................................................. 13

2|Page

INTERPRETATION OF STATUTES PROJECT

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

INTRODUCTION Interpretation is as ancient as language. Highly structured “rules of interpretation” were developed at a very primitive stage of the Hindu civilization. Interpretation is a knack of finding out the object of an enactment by construing the words in their natural and ordinary meaning. The Court is not supposed to interpret arbitrarily and thus certain basic principles have been evolved. These principles are described as ‘rules of interpretation’. Its object is to ascertain the intention of the legislature communicated expressly or impliedly in the language used. As stated by Salmond, "By interpretation or construction is meant, the process by which the courts seek to ascertain the meaning of the legislature through the medium of authoritative forms in which it is expressed." When the words in a statute are unclear. It is the task of the court to interpret it by referring to internal as well as external aids. Apart from the intrinsic aids such as preamble and the purview of the act, the court considers resources beyond the act, these are called extrinsic aids. They mainly deal with the history of the act. But this Historical setting are not used as an aid if the words are clear, if the wordings are unclear, the historical setting may be taken into account in order to achieve the proper construction. Historical setting comprises of parliamentary history, historical facts, statement of objects and reasons, report of expert committees.1

1

Ca. Rajkumar S. Adukia , Interpretation of Statutes

3|Page

INTERPRETATION OF STATUTES PROJECT UNDERSTANDING PARLIAMENTARY AND LEGISLATIVE HISTORY Parliamentary history stands for the procedure by which an act is enacted. This contains conception of an idea, drafting of the bill, the debates, the amendments etc. Speech made during over of the bill, amendments contemplated during the progress of the bill are considered in parliamentary history while the papers sited before the cabinet which pronounced for the introduction of the bill are not germane since these papers are not sited before the parliament.2

Legislative history means (i) The legislative antecedents of the statutory provision under consideration ,i.e. corresponding provisions in previous enactment since repealed and re-enacted with or without modification3 (ii) Pre parliamentary materials relating to the provision or the statue in which it is contained ,e.g. reports of committees and commission (iii) Parliamentary materials

IS LEGISLATIVE HISTORY BINDING This notion is completely rejected. On contrary, there seems to be broad consent that legislative history is just a tool with acts as a "guiding function" for the courts. Variation of opinion arises regarding the relative weight to be provided to the historical interpretative method in relation to other methods. Advocates of legal discourse theory suggest a ranking that usually places arguments based on legislative intent higher than others." furthermore, increasing number of scholars are of the view that while a categorical duty of the courts to stick to legislative history might not exist, an obligation to refer the materials does .4

2

Justice A.K. Srivastava, Interpretation of Statutes These are not the same thing as statutes in parimateria 4 Kenneth R. Dortzbach, Legislative History: The Philosophies of Justices Scalia and Breyer and the Use of Legislative Historyby the Wisconsin State Courts Volume 80, Issue 1 2006 3

4|Page

INTERPRETATION OF STATUTES PROJECT LEGISLATIVE HISTORY AND LEGISLATIVE INTENTION It is important to differentiate between legislative history and legislative intent. According to Black's Law Dictionary legislative intent 5 means "the design or plan that the legislature had at the time of enacting a statute." It does not essentially reveal the meaning of each word; however it does offer courts with a ways of selecting between competing interpretations. Few schools of legislative interpretation offer that the court's obligation is to determine and uphold the intention of the legislature; while some should the existence of a collective intention and the necessity to determine such, even if it does exist. For those in the former school, it is one mode to discern legislative intent.

According to Black's Law Dictionary legislative history means "The back ground and events leading to the enactment of a statute, including hearings committee reports, and floor debates."6 In the beginning of the definition- "the background and events" is in fact broader than the general perception of legislative history and, if it were not restricted by the remainder of the definition, would appear to cover more than the documents drafted during the legislative process. It includes the "documents [legislatures generate] in the course of enacting statutes.7

5

Black's Law Dictionary, at 919. Black's Law Dictionary, at 919. 7 Stacey l. Gordon and Helia Jazayeri, lost legislative Intent: What will montanans do when the meaning Isn't plain? mont. L. Rev. 1 2009 6

5|Page

INTERPRETATION OF STATUTES PROJECT REASONS FOR THE COURT'S USAGE OF LEGISLATIVE HISTORY Many scholars have tried to understand the motive of judges for citing legislative history.The usage of legislative history is motivated by a combination of legal and ideological considerations. Usually, the legal variables have a considerably greater impact on the possibility of legislative history use than the ideological variables, but the influence of the ideological variables cannot be denied. The intricacy of a statute amplifies the likelihood of legislative history usage, while routinely amended statutes are less prone to obtain such treatment. 8 The age of the statute is also relevant, but its outcome is neither linear nor monotonic: extremely new and old statutes are less likely to extract legislative history usage than statutes of intermediate age. The facts also recommend that the usage of legislative history by one justice induces other justices to respond in the similar kind. With regard to the effect of ideological factors, liberal justices are usually more likely than conservative justices to use legislative history. Consequently, the rightward shift in the ideological composition of the Court has greatly corresponded with a falloff in the overall usage of legislative history since the mid-1980s.9

8

James J. Brudney &Corey Ditslear, Liberal Justices' reliance on Legislative history: Principle, Strategy, and The Scalia effect, 29 Berkeley J. Emp. &lab. L. 117 (2008) 9 David s. Law & David Zaring, law versus ideology: The Supreme Court and the Use of legislative history51 Wm. & Mary l. Rev. 1653 2009-2010

6|Page

INTERPRETATION OF STATUTES PROJECT IS LEGISLATIVE HISTORY USAGE MOTIVATED JUSTICES

BY

DISAGREEMENT AMONG

THE

There is one question that has to be delving into, to what limit, if any, do the Justices refer to legislative history in order to retort to the arguments and positions of other Justices? Difference over the meaning of a statute enhances the usage of legislative history. When Justices differ on the merits, it is expected from them to resort to legislative history as a way of strengthening their own arguments, and weakening those of the opponents.

It appears that Court's legislative history opinions yields little aid for this hypothesis. Indeed, the opposite view can be: Opinions for a unanimous Court are considerably more likely to refer to legislative history than other kinds of opinions. However, this finding is deceptive. It is an error to suppose that unanimity enhances legislative history usage. Most of the majority opinions are unanimous opinions and majority opinions-unanimous or else-are more likely to refer to legislative history than are minority opinions.10

10

David s. Law & David Zaring, Law versus Ideology: The Supreme Court and the Use of Legislative history 51 Wm. & Mary l. Rev. 1653 2009-2010

7|Page

INTERPRETATION OF STATUTES PROJECT

THE USE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN INTERPRETATION OF INDIAN STATUTES: WITH REFERENCE TO CASE LAWS

THE

The parliamentary history may be referred for ascertaining the intention, but not for construction, is pedantic. In fact all such material out freely to be referred to and it is only by resort to such material that the object of the legislation and how the legislature intended to achieve that object by the particular statute can be correctly ascertained by the court 11. The reliance which is placed on legislative history by the courts in determining an issue can be seen in many case laws. REFERENCE TO PROCEEDING OF LEGISLATURE WHILE DISCUSSING THE CASE LAWS In Administrator-General of Bengal v. Premlal Mullick12, the question was whether a Hindu executor was a “private executor” within the meaning of Section 31 Administrator General’s Act, 1874. The Privy Council held reversing the High Court, that he was a “private executor” within the meaning of Section 31 of the Act. Their Lordships observed: “The two learned Judges, who constituted the majority in the appellate court, although they do not base their judgement upon them, refer to the proceedings of the legislature which resulted in the passing of the Act of 1874 as legitimate age to the construction of Section 31. Their Lordships think it right to expresses their dissent from that proposition. The same reasons which exclude these considerations when the clauses of an Act of the British Legislature are under construction are equally cogent in the case of an Indian statute”13. In A. Thangla Kunju Musaliar v. M. Venkatachalarn Patti.14, the questions were whether Section 5(1) of the Travancore Taxation on Income (Investigation Commission) Act, 1124 (ME) was discriminatory and whether the Commission had authority to investigate any case suomoto. It was observed: The question at once arises as to why it was that the legislative authority took the view that there were possible cases of tax evasion. It has been said that although the statement of the objects and reasons appended to a bill is not admissible as an aid to the construction of the Act as passed, yet, it may be referred to only for the limited purpose of ascertaining the conditions prevailing at the time which necessitated the making of the law15.

11

Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the new modified textualism, 119 Yale l.J. 1750 (2014) 12

(1894-95) 22 IA 107: ILR (1895) 22 Cal 788 St. J. Langan, Maxwell on the Interpretation of Statutes (12th ed., 1969)

13

14 15

AIR 1956 SC 246: 29 ITR 349 Ibid at 3

8|Page

INTERPRETATION OF STATUTES PROJECT In S C. Prashar v. Vasantsen Dwarkadas16, S.K. Das, J. observed: The statement of objects and moons for introducing a particular piece of legislation cannot be used for interpreting the legislation if the words used therein are clear enough. But the statement can be referred to for the purposes ascertaining the circumstances which led to the legislation in order to find out what was the mischief which the legislation aimed at17. And Kapur, J. observed: In construing an enactment and determining its true scope it is permissible to have regard to all such factors as can legitimately be taken into account to ascertain the intention of the legislature such as the history of the Act, the reason which led to its being passed, the mischief which had to be cured as well as Site cure as also the other provisions of the statute. This is the rule in Heydon case". Taking this principle into account it appears that the object of the amendment was to validate certain notices after the 1959 amendment and after the lapse of eight years from the end of the assessment year and also to nullify the effect of the Calcutta judgment in Debi Dutta Moody case. In Balchand Jain v. State of M.P18. for holding that an order for anticipatory bail could be issued under Section 438, Criminal Procedure Code, 1973, to a person apprehending arrest under Rule 184 of the Defence and Internal Security of India Rules, 1971, the Court relied on the legislative history of the provision and on the recommendations of the Law Commission and observations in the Law Commission Report. In Emperor v. Benoari Lal Sarma19, Rownand, J. observed: Sen, J. ,has said in his judgement that it is not open to us to take into account historical facts or any extraneous evidence either as to whether an emergency existed or whether the Governor General had judged an emergency to have arisen. But according to Lord Halsbury in Powell v. Kempton Park Racecourse Co., such topics as the history of legislation and the facts which give rise to the enactment may usefully be employed to interpret the meaning of the statute, though they do not afford conclusive argument20. In State of Travancore-Cochin v. Bombay Co. Ltd21, the respondents claimed exemption from sales tax on the ground that their commodities to foreign buyers in CIF or FOB contracts were sales "in the course of export of the goods out of the territory of India” within the meaning of Article 2860)(b) of the Constitution. The High Court held in favour of the respondents. The 16

AIR 1963 SC 1356: (1964) 1 SCR 29

17

S.G.G. Edgar, Craies on Statute Law (1999)

18

(1976) 4 SCC 572 :1976 SCC (CRI) 689 AIR 1943 FC 36: 1943 FCR 96: (1943) 2 MAD LJ 207. 20 Vepa P. Sarathi, Interpretation of Statutes (4th ed., 2003) 19

21

AIR 1952 SC 366: 1952 SCR 1112

9|Page

INTERPRETATION OF STATUTES PROJECT Supreme Court confirmed the Judgment, but observed: The use made by the learned Judges below of the speeches made by the members of the Constituent Assembly in the course of the debates on the Draft Constitution is unwarranted. That this form of extrinsic aid to the interpretation of statutes is not admissible has been generally accepted in England, and the same rule has been observed in the construction of Indian statutes. The reason behind the rule was explained by one of us in A.K. Gopalan v. State of Madras22.; thus: 'A speech made in the course of the debate on a Bill would at best be indicative of the subjective intent of the speak, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the Bill. Nor is it reasonable to assume that the minds of all the legislators were in accord'23; or as it is more tersely put in United States v. Trans-Missouri Freight Assn24. 'Those who did not speak may not have agreed with those who did; and those who spoke might differ from each other.' The rule of exclusion has not always been adhered to in America, and sometimes distinction is made between using such material to ascertain the purpose of a statute and using it for ascertaining its meaning. It would seem that the rule is adopted in Canada and Australia. In State of Bihar v. Khas Karanpura Collieries Ltd 25 , while holding that Section 30-A was inserted retrospectively by Act 15 of 1958 in the Mines and Minerals (Regulation and Development) Act, 1957 and that it gave temporary immunity front the applicability of Sections 9(0 and 16(1) of the Act to statutory mining leases until the Central Government by notification made the provisions applicable with or without modification to such leases, the Court observed: There can be no room for doubt that the legislature intended that Section 30-A of the 1957 Act should cover the aforesaid statutory leases as well. It will be apposite in this connection to refer to the statement of objects and reasons given in the Bill which sought to introduce Section 30-A in the 1957 Act with retrospective effect which can be usefully resorted to for ascertaining the true scope of the section and the extent of the protection afforded by it. The Explanatory Memorandum attached to the Rules, is in the nature of Statement of Objects and Reasons, and may be referred to P.S. Mahal v. Union of India26: The aids which Parliament availed of such as the report of a special committee preceding the enactment, existing state of the law, the environment necessitating the enactment of the legislation, and the object sought to be achieved, are useful for deciphering the real intention of the Parliament and therefore cannot be denied to the court. Therefore, reports of the committee which preceded the enactment of legislation, reports of joint 22

AIR 1950 SC 27: (1950) 51 CRI LJ 1383 G.P. Singh, Principles Of Statutory Interpretation (11th Ed., 2008)

23

24

169 US 290 (1897). (1976) 4 SCC 134 26 (1984) 4 SCC 545: 1985 SCC (L&S) 61 25

10 | P a g e

INTERPRETATION OF STATUTES PROJECT parliamentary committees, report of a commission set up for collecting information leading to the enactment are permissible external aids to construction." Report of joint Select Committee on Bill to amend the Act was referred to see the object and purpose. In Narain Khamman V. Parduman Kumar Jain27., it was held that: Though the Statement of Objects and Reasons accompanying a legislative Bill cannot be used to determine the true meaning and effect of the substantive provisions of a statute, it is permissible to refer to the Statement of Objects and Reasons accompanying a Bill for the purpose of understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute, and the evil which the statute sought to remedy. In Union of India v. Tulsiram Patel, it was held: Support to the conclusion that provision wholly excluded natural justice rules sought from factors such as existence of provision in the Constitution since inception, its conscious introduction after considerable debate and deliberation and democratic ideology of the members of the Constituent Assembly. In Bachan Singh v. State of Punjab, it was held: Constitutional law raises, in a legal context, problems of economic, social, moral and political theory and practice to which non-lawyers have much to contribute. When judges are confronted by issues to which there is no legal answer, there is no reason (other than a desire to maintain a fiction that the law pros-ides the answer) for judicial discretion to be exercised in a vacuum, immune from non-legal learning and extra-legal dispute. The judges must also consider while deciding an issue of constitutional adjudication as to what would be the moral, social and economic consequences of a decision either way. In Special Reference No. z of 2002, Re, (Gujarat Assembly Election matter)28the debates in the Constituent Assembly on Articles 85 and 174 was looked into. Khare, J. (as the learned Chief Justice then was) referred to Kesavananda Bharti cases29 in support of the proposition that the Constituent Assembly Debates are permissible aids in construction to ascertain the intention of the Constitution. The learned Judge observed as follows. One of the known methods to discern the intention behind enacting a provision of the Constitution and also to interpret the same is to look into the historical legislative developments, Constituent Assembly al provision. Debates or any enactment preceding the enactment of the constitution. In Kesavananda Bharti v. State of Kerala 30 , it was held that Constituent Assembly Debates although not conclusive, yet show the intention of the framers of the Constitution enacting provisions of the Constitution and the Constituent Assembly Debates can throw light in ascertaining the intention behind such provisions. Reference to Constituent Assembly Debates in 27

(1985) 1 SCC 1 (2002) 8 SCC 237 AT P. 265 29 (1973) 4 SCC 225: AIR 1973 SC 1461 30 (1973) 4 SCC 225: AIR 1973 SC 1461 28

11 | P a g e

INTERPRETATION OF STATUTES PROJECT interpreting a Constitutional provision: In Kesavananda Bharti v. State of Kerala, H.R. Khanna, J. observed that the speeches in the Constituent Assembly can be referred to for ascertaining the history of the constitutional provision. In Fagu Shaw v. State of W.B 31 Bhagwati, J. observed: It was at one time thought that the speeches made by the members of the Constituent Assembly in the course of the debates on the Draft Constitution were wholly inadmissible as extraneous aids to the interpretation of a constitutional provision, but of late there has been a shift in this position and following the recent trends in juristic thought in some of the Western Countries and the United State, the rule of exclusion rigidly followed in Anglo-American jurisprudence has been considerably diluted. In Ashoka Kumar Thakur v. Union of India32, while justifying the separate treatment given to minority institutions on the basis of constitutional provision the Court observed that it is a settled position that in statutory interpretation external aids have only a limited use. [I respectfully submit that all aids external and internal are for the purpose of finding out the object of a statutory provision or a word or phrase and that interpretation is on the basis that it achieves that object and fits the context.] The only comment I have to make is, instead of looking for the object if there is a doubt, it is better to start with the object, because, I respectfully submit it will lead to greater certainty, shorter judgments and no dissents. The difference between consolidation and codification is that in the latter both statutes and case law are integrated and enacted as a whole after the necessary dovetailing, reconciliation and distillation33.

31

(1974) 4 SCC 152: 1974 SCC (CRI) 316 (2008) 6 SCC 1 33 Vepa P. Sarathi, Interpretation Of Statutes (4th Ed., 2003) 32

12 | P a g e

INTERPRETATION OF STATUTES PROJECT CONCLUSION

The conception that the legislative history must be sternly adhered to barely has any advocates now a days. It is just a tool and "aid" or "guide" as stated in Pepper v. Hart 34 -“To better understand ambiguous provisions”. Now the discussion has thus swung towards ascertaining the significance given to it. There exist no universal rules on the interpretation of legislative. It is, though, a worthwhile duty for legal academics to examine the possibilities and confines of a hierarchical order of different legislative materials, ranging from preparatory reports by expert panels to commentary by the Ministry. Besides, judges and legal scholars should observe the detail process of how statutes are made in order to be in a better position to consider their value.35 So far as the Indian judiciary is concerned they have tried to clear the poison of these external sources by way of verdicts. Debates have been referred many a time by the court in order to reach a conclusion in a case. Recently SC has cleared that in S.R. Chaudhuri v. St. of Punjab36 “That it is a settled position that debates in the Constituent Assembly may be relied upon as an aid to interpret a Constitutional provision because it is the function of the Court to find out the intention of the framers of the Constitution.” But on speeches in K.S. Paripoornan v State of Kerala and 37others while making a distinction between speeches of the mover and that of the other members, they held“Speeches made by the Members of the Parliament at the time of consideration of a Bill, it has been held that they are not admissible as extrinsic aids to the interpretation of the statutory provision. However, speeches made by the mover of the Bill or Minister may be referred to for the purpose of finding out the object intended to be achieved by the Bill” Regarding Law Commission’s Report it was held that, “It can also be referred to where a particular enactment or amendment is the result of recommendations of Law Commission Report.”

34

[1993] AC 593 Holger Fleischer, Comparative approaches to the use of Legislative History in Statutory Interpretation, 60 am. J. Comp. L. 401 2012 36 (2001) 7 SCC 126 37 AIR 1995 SC 1012 35

13 | P a g e

INTERPRETATION OF STATUTES PROJECT This judgment was further validated by The Supreme Court in Rosy and another v State of Kerala and others 38 , where they considered Law Commission of India, 41st Report for interpretation of section 200 (2) of the Code of Criminal Procedure, 1898. Finally as far as Statement of Objects and Reasons, accompanying a legislative bill is concerned; court has cleared that in Devadoss v. Veera Makali Amman Koil Athalur39 “It is permissible to refer to it for understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute and the evil which the statute sought to remedy. But, it cannot be used to ascertain the true meaning and effect of the substantive provision of the statute.” Thus it has been understood that there has been quite a bit ambiguity in interpretation of statutes through legislature history. Hence it needs to be adhered to and intent of the parliamentarian is of the prime importance for understanding the intent of the legislature in the framework of the statutes.

38 39

(2000) 2 SCC 230 AIR 1998 SC 750

14 | P a g e

INTERPRETATION OF STATUTES PROJECT BIBLIOGRAPHY

Statutes Referred 

Constitution of India, 1949



Mines and Minerals (Regulation and Development) Act, 1957



Criminal Procedure Code, 1973



Travancore Taxation on Income (Investigation Commission) Act, 1124



Administrator General’s Act, 1874

Books Referred 

St. J. Langan, Maxwell on the Interpretation of Statutes (12th ed., 1969)



Vepa P. Sarathi, Interpretation of Statutes (4th ed., 2003)



G.P. Singh, Principles Of Statutory Interpretation (11th Ed., 2008)

Articles Referred 

Kenneth R. Dortzbach, Legislative History: The Philosophies of Justices Scalia and Breyer and the Use of Legislative History Volume 80, Issue 1 2006



Stacey l. Gordon and HeliaJazayeri,lost legislative Intent: What will montanans do when the meaning Isn't plain? Mont. L. Rev. 1 2009



James J. Brudney&Corey Ditslear, Liberal Justices' reliance on Legislative history: Principle, Strategy, and the Scalia effect, Berkeley J. Emp. &lab. L. 117 (2008)



David s. Law & David Zaring, law versus ideology: The Supreme Court and the Use of legislative history51 Wm. & Mary l. Rev. 1653 2009-2010



Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the new modified textualism, 119 Yale l.J. 1750 (2014)



Holger Fleischer, Comparative approaches to the use of Legislative History in Statutory Interpretation, 60 am. J. Comp. L. 401 2012

15 | P a g e

INTERPRETATION OF STATUTES PROJECT

Internet Sources 

http://www.jstor.org/stable/10.2307/23251934?Search=yes&resultItemClick=true&searc hText=The&searchText=role&searchText=of&searchText=parliamentary&Statutes



http://ijtr.nic.in/articles/art21.pdf



http://www.lawyersclubindia.com/articles/Interpretation-of-Statute5430.aUwTmSwSN



http://www.nhs.vic.edu.au/library/legaldate/LegalDate_Vol_19_No_2_May_2007.pdf



http://caaa.in/Image/Interpretation%20of%20Statutes.pdf

16 | P a g e