External Aids To Interpretation
EXTERNAL AID
They are the Statement
of Objects and Reasons when the Bill was presented to Parliament, the reports
of the Committee, if any, preceded the Bill, legislative history, other
statutes in pari material and legislation in other States which pertain to the
same subject matter.
The history of
legislation, the enactments which are repealed, the parliamentary debates,
dictionary commentaries etc. are external aids to construction.
There has been
a controversy in India regarding the use of parliamentary debates for
interpreting the Constitution. It is now settled that the court can always
refer to the debates in the legislature while interpreting the statute to know
the intention if there is a doubt about the provision.
More often than
not, a provision is introduced in the Bill and after some debate either it is altered
or modified or amended before finally it receives the assent of the President.
Such external aids are helpful in interpreting the law.
Where the
Legislature has not chosen to define the expression the court of law have,
therefore, to fall back upon other aids for finding the intention of the
Legislature; for example by reference to the context and object and purpose of
the legislative measure in question. The court may further have resort to
dictionaries and judicial interpretation of this award as used in other statutes;
but it cannot be denied that these methods are not as satisfactory as a precise
and clear legislative definition in the statute itself.
In B. Prabhakar Rao v.
State of Andhra Pradesh the observations , quoted below, are
illuminating:-
"Where internal
aids are not forthcoming, we can always have recourse to external aids to discover
the object of the legislation. External aids are not ruled out. This is now a
well settled principle of modern statutory construction. Thus 'Enacting
History' is relevant: "The enacting history of an Act is the surrounding
corpus of public knowledge relative to its introduction into Parliament as a
Bill, and subsequent progress through, and ultimate passing by, Parliament. In
particular it is the extrinsic material assumed to be within the contemplation
of Parliament when it passed the Act." Again "In the period
immediately following its enactment, the history of how enactment is regarded
in the light of development from time to time." "Official statements
by the government department administering an Act, or by any other authority
concerned with the Act, may be taken into account as persuasive authority on
the meaning of its provisions." Justice
may be blind but it is not to be deaf. Judges are not to sit in sound proof
rooms.
Further, in the
case of District
Mining Officer and others v. Tata Iron & Steel Co. and another the
Supreme Court has observed: “It is also a cardinal principle of construction
that external aids are brought in by widening the concept of context as
including not only other enacting provisions of the same statute, but its preamble,
the existing state of law, other statutes in pari materia and the
mischief which the statute was intended to remedy.
In K. P. Verghesse v. Income Tax Officer Ernakulam,
the Supreme Court said, “Interpretation of statute being an exercise in the ascertainment
of meaning, everything which is logically relevant should be admissible.
Committee
reports, Parliamentary debates, Policy statements and public utterances of
official spokesmen are of relevance in statutory interpretation. But 'the
comity, the courtesy and respect that ought to prevail between the two prime
organs of the State, the legislature and the judiciary', require the courts to
make skilled evaluation of the extra textual material placed before it and
exclude the essentially unreliable.
"Nevertheless
the court, as master of its own procedure, retains a residuary right to admit
them where, in rare cases, the need to carry out the legislature's intention
appears to the court so to require.
PARLIAMENTORY HISTORY
– FACTS AND CIRCUMSTANCES
The leading
authorities do not provide a precise meaning of the term “legislative history.”
Generally, the term is used to denote documents relating to events that
occurred during the conception, preparation, and passage of the enactment.
Peter Hogg
considers legislative history to include the following materials:
1. The report
of a royal commission or law reform commission or parliamentary committee
recommending that a statute be enacted;
2. A government policy paper (whether called a white paper, green paper, budget paper or whatever) recommending that a statute be enacted;
3. A report or
study produced outside government which existed at the time of the enactment of
the statute and was relied upon by the government that introduced the
legislation;
4. Earlier
versions of the statute, either before or after its introduction into
Parliament or the Legislature;
5. Statements
by ministers or members of Parliament –const assembly debtes / CAD
6.Speeches in
the Parliament or Legislature when the bill is being debated.
In order to
arrive at the intention of the legislature, the state of law and judicial
decisions antecedent (before n after) and at the time the statute was passed
are material matters to be considered.
An erroneous
assumption by the legislature as to the state of the law has no effect and
would not become a substantive enactment. In the construction of a statute the
worst person to construe it is the person who is responsible for its drafting.
Courts
sometimes make a distinction between legislative debates and reports of
committees and treat the latter as a more reliable or satisfactory source of
assistance.
According to
the traditional English view the Parliamentary History of a statute was not
considered as an aid to construction. The Supreme Court of India in the
beginning enunciated the rule of exclusion of Parliamentary History in the way
it was traditionally enunciated by the English Courts but on many an occasion,
the court used this aid in resolving questions of construction.
In Indira Sawhney v. Union of India while
interpreting Article 16(4) of the Constitution the Supreme Court referred to
Dr. Ambedkar‟s speech in the Constituent Assembly as the expression backward
class of citizens’ is not defined
The court held
that reference to Parliamentary debate is permissible to ascertain the context,
background and objective of the legislatures but at the same time such
references could not be taken as conclusive or binding on the courts. Thus in
the Mandal Reservation Case, the Supreme Court resorted to Parliamentary
History as an aid to interpretation.
In Harsharan Verma v.
Tribhuvan Narain Singh, the appointment of Tribhuvan Narayan Singh
as the chief minister of Uttar Pradesh was challenged as at the time of his
appointment he was neither a member of Vidhan Sabha nor a member of Vidhan
Parishad. While interpreting Article 164(4) of the Constitution, the Supreme
Court held that it did not require that a Minister should be a Member of the
Legislature at the time of his being chosen as such, the Supreme Court referred
to an amendment which was rejected by the Constituent Assembly requiring that a
Minister at the time of his being chosen should be a member of the Legislature.
Article 164(4)-
who for any period of six months is not a member
of legislature of state –cease to be a minister
(A) ENGLISH PRACTICE
English practice can be discussed under three sub-headings.:
(I) TRADITIONAL VIEW
English traditional view is that ‘the intent of the Parliament which
passed the act is not to be gathered from the parliamentary history of the
statute.’
The Bill in its original form or the amendments considered during its
progress in the legislature are not admissible as aids to construction.
Recommendations contained in the report of a Royal Commission which may
have led to the introduction of the measure in Parliament cannot be used as
evidence for the purpose of showing the intention, i.e., purpose or object of
the Act.
The Courts are entitled to consider such external facts as may be
necessary to understand the subject-matter to which the statutes relate or they
can also have regard to the mischief which the statute is intended to remedy.
The exclusionary rule has been relaxed to admit the reports of the Commission
preceding statutory measure as evidence of surrounding circumstances with
reference to which the words in the statute are used.
In Black Clawson International Ltd v Papierwerke Waldhof
Aschaffenburg, AG, the House of Lords unanimously held
that the report of a committee presented to the Parliament proceedings, the
legislation could be seen for finding out the then state of law and the
mischief required to be remedied.
But the majority held that the report could not be looked at for finding
out the intention of the Parliament, ie, for a direct statement of what the
proposed enactment meant even though the report set out a draft bill which was
enacted without any alteration.
The minority view was that when the draft bill was enacted without any
alteration, it was Parliament’s intention to do what the committee recommended
and to achieve the object the Committee had in mind and, therefore, the Committee’s
observations on the draft bill would form the most valuable guide to the
intention of the Parliament.
(II) CRITICISM OF TRADITIONAL
VIEW
The English practice continued to make the distinction drawn between the
refusal to admit the report of a Committee for purpose of finding out the
intention of Parliament and its relevance as evidence of surrounding
circumstances or as aid to understand the subject-matter to which the statute
relates or as indicative of the evil or defect which the act was intended to
remedy, is somewhat obscure. Prof. Allen in his book has referred to it as ‘casuistical’.
(INTELECTUALLY DISHONEST)
If the key to opening of every law is the reason and the spirit of the
law and if a statute is best interpreted when we know why it was enacted then
the steps taken for understanding or defining the object of or the mischief
intended to be dealt with by the statute are themselves a part of the process
for getting its meaning.
When the courts start upon the task of interpreting a statute, it is
unrealistic and impractical to divide the exercise into different compartments
viz, one leading to discerning the object or mischief and the other leading to
discerning the true meaning of the statute.
The exercise in its entirety is one process for discerning the true
meaning of the Act, or, in other words, the intention of the legislature.
It was held in R v Shivpuri that
reports of law commissions preceding legislation constitute an important material
for understanding the legislation and it has been acknowledged that a careful
reading of such a report would have avoided an erroneous construction
(III) MODERN TREND
In construing statutes, the school of thought that open
use should be made of parliamentary history has been gaining ground. The rule
against references to legislative history is no longer so much a ‘canon of
construction’ as a ‘counsel of caution’. In other words, it is for the Courts
to consider what weight is to be given to the materials that emerge from the
scrutiny of legislative history rather than to automatically to exclude such
materials from all considerations as an aid to interpretation.’ The
legislative history of a statute can be looked into only in case of ambiguity
and not otherwise.
In Pepper v Hart, this trend found
an approval. It was held that reference to Parliamentary material should be
permitted as an aid to construction of legislation which is ambiguous or
obscure or the literal meaning of which leads to absurdity.
Even in such cases, references in court to
parliamentary material should only be permitted where such material clearly
discloses the mischief aimed at or the legislative intention lying behind the
ambiguous or obscure words.
It was further held in this case that ‘the court
cannot attach a meaning to words which it cannot bear, but if the words are
capable of bearing more than one meaning, why should not Parliament’s true
intention be enforced.’ It was also observed that ‘given the purposive approach
to construction now adopted by courts in order to give effect to the true
intention of the legislature, the fine distinctions looking for the mischief
and looking for the intention is using words to provide the remedy is
inappropriate.
The facts
of the case were:
There was an appeal by taxpayers who
were teachers in a school. Under a scheme of the school, the members of the
staff were entitled to have their children educated at the school on payment of
only one-fifth of the normal fee chargeable from members of the public. Cash
equivalent to this benefit’ was chargeable to income-tax under Section
61 (1) of the Finance Act, 1976.
IN the House of Lords reference was made to the
Parliamentary history and statements made by the Financial Secretary to the treasury
during the Committee stage of the bill which clearly showed that the Parliament
had passed the legislation with the intention that the concessionary benefits
for teacher’s children . On this basis the construction contended for by the
tax payers was upheld.
Although it is generally accepted that “debates in
Congress are not appropriate or even reliable guides to the meaning of the
language of an enactment”, it has been held that the said rule “is not violated
by resorting to debates as a means of ascertaining the environment at the time
of enactment of a particular law, that is, the history of the period when it
was adopted.”
Further, it appears to be well accepted that “the
reports of a committee, including the bill as introduced, changes made in the
frame of the Bill in the course of its passage and the statement made the
committee chairman in charge of it, stand upon a different footing, and may be
resorted to under proper qualifications.”
Prof. Reed Dickerson after analyzing the uses and
abuse of legislative history concludes that “the more realistic approach to
legislative history would be to end or severely limit its *judicial use.”
On the other hand, those who support the liberal
use of legislative materials for the purpose of construction says that the meaning
of the words of a statute is resolved in the light of their setting in the
legislative process rather than in the light of the intuition of the judge.
According to this view, liberal use of legislative material is one of the
modern efforts so that judicial lawmaking under the guise of interpretation may
be reduced to its necessary minimum.
It will appear that a wholesale inclusion of
parliamentary history as also a wholesale inclusion thereof are both extremes
equally open to objections, and the correct solution lies in finding out a middle
course
In a few cases, it has been held that the
legislative history within circumspect limits may not be consulted by the
Courts in resolving ambiguities. Legislative history and precedent English
statutes may be taken into consideration in giving a beneficent interpretation
to a provision in an act. In determining legislative intent, even a minister’s
budget speech was taken into consideration.
In State of Travancore v Bombay Co Ltd,
it was held that a speech made in the course of the debate on a bill could at
best be indicative of the subjective intent of the speaker, 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 those
legislators were in accord.
. In Chiranjit Lal Chowdhary v Union of India,
Fazal Ali, J, admitted Parliamentary history including the speech of the
Minister introducing the Bill as evidence of the circumstances which
necessitated the passing of the Act, a course apparently approved in later
decisions
In Union of India v Harbhajan Singh,
extensive references were made to speeches in the Constituent Assembly to
support the construction that wealth-tax on net-wealth including the capital
value of agricultural lands fell within the residuary power of the Parliament.
In Indira Sawhney v Union of India,
the Supreme Court referred to Dr. Ambedkar’s speech in the Constituent Assembly
and observed interpreting Article 16 (4), ‘that the debates in the
Constituent Assembly could be relied upon as an aid to interpretation of a
constitutional provision is borne out by a series of decisions of the Court.’
Since the expression backward classes of citizens
are not defined in the Constitution, the reference to such debates is
permissible to ascertain at any rate the context, background, and objective
behind them. Particularly where the courts want to ascertain the ‘original
intent’ such reference may be unavoidable.
The amendments considered during the
progress of a bill were ruled out as inadmissible for purposes of construction
of the Act. This principle was modified by the Supreme Court in the case of Express
Newspapers (Pvt) Ltd v Union of India.
The Court observed that there is a consensus of
opinion that the circumstances under which a particular word came to be deleted
from the original Bill as introduced in the Parliament is applicable only when the terms of a
statute are vague or ambiguous.
In K.S.Paripoornan v State
of Kerala, it was held that speeches of
members of Parliament are not admissible as extrinsic aids, although the speech
of the mover of the bill can be referred to find out the object intended to be
achieved by the Bill. Similarly, it was held that statements made by a Minister
in the house who had moved the Bill in Parliament could be referred to ascertain
the mischief sought to be remedied by legislation but it could not be relied on
for interpreting provisions of the enactment
The Supreme Court in S.R. Chaudhuri v. State of Punjab and
others has stated 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 as far as speeches in Parliament are concerned, a
distinction is made between speeches of the mover of the Bill and speeches of
other Members.
PARLIAMENTARY SPEECH
Parliamentary debates at the time
of introduction of bill may be used as an external aid in interpretation. It is
a settled position that there can only be limited use of Parliamentary Debates.
The court should not normally critically analyze the proceedings of
Parliament.
In Milton v DPP, in interpreting the term ‘prosecution’ under the Income Tax Act, a minister’s speech at the time of introduction of Bill has been taken into consideration.
In my opinion, the evidentiary importance given to such speeches by the judiciary has increased from 1950 to 2015.
In the 1950s and 1960s the apex court had expressed two positions. According to one line of cases,
[1] The speech made by a sole minister is unable to capture the intent of majority vote that led to the legislation being passed.
[2] Instead, the speech only indicates the minister’s “subjective intent”
[3] Therefore, these cases held the minister’s speech as inadmissible evidence in interpreting a statute.
A similar position was taken by dissenting Judge Shah in Shyamlal Mohanlal v. State of Gujarat: “In construing the words used by the Legislature, speeches on the floor of the Legislature are inadmissible. I do not refer to the speech for the purpose of interpreting the words used by the Legislature, but to ascertain the historical setting in which the statute … came to be enacted”
Thus, by end of 1960s, there existed two views. The first view, regarded such speeches to be completely inadmissible. The second view, on the other hand, regarded these speeches inadmissible for the purpose of interpreting the statute. However, the speeches were considered relevant to decipher the historical background of the statute.
In my opinion, the second opinion was the advent of a new evidentiary threshold for speeches. This threshold, nevertheless, was harmonised with the first view by ensuring that a statute was not given a particular interpretation on the basis of a single speech orated during its formation. The speech was merely used to understand the context in which a given statute was being passed.
From 1970s, the judicial trend has favoured the second view. In State of Mysore v. R.P. Bidap Justice Krishna Iyer, speaking for the Court, stated that the first view is being whittled down and that there is no harm in admitting all extrinsic evidence that is logically relevant, though only when ambiguities exist in the plain meaning interpretation.
Justice Iyer carried forward this view and explicitly held in B. Banerjee v. Anita Pan that one can no longer ignore the “voices from parliamentary debates” and that it is essential to listen to the “legislative authors when their artefact is being interpreted”
This view has been repeated in a number of judgments since then. However, it must be noted that the Court has never used the speeches to directly interpret a statutory provision but only to decipher the context in which the statute was passed.
On January 2, 2017, the Apex Court delivered a much-debated judgment of Abhiram Singh v. C.D. Commachen, which interpreted Section 123(3) of the Representation of People Act, 1951 (hereinafter, RPA). Section 123(3) defines a “corrupt electoral practice” as:
“The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or.”
The issue before the court was whether the word “his” in the section referred to – (i) the religion of the candidate (or his agent) making the appeal, (ii) (ii) the religion of the elector, or (iii) both (i) and (ii).
Both the majority opinion And dissenting Judge Chandrachud relied on the speech given by the law minister A.K. Sen when an amendment to Section 123 RPA was being passed. The majority relied on the speech to decipher the reason as to why the amendment was made. However, upon the careful perusal of Justice Chandrachud’s opinion, He states: “The speech of the Law Minister, who moved the Bill leaves no manner of doubt that the expression ‘his’ referred to the religion of the candidate (or his caste, community, race or language) for whom votes were sought or of the candidate whose election was sought to be prejudicially affected by an appeal to refrain from voting.”
I agree that the judge later goes on to use the speech to understand the mischief that RPA seeks to resolve.
If that was the intention of the learned Judge, then this would further strengthen the evidentiary importance given to speeches orated by movers of respective legislations.
It would mean that, from the time these speeches were held to be inadmissible, we have come to a situation where in these speeches can be used to interpret an entire provision in case of an ambiguity.
Opinion of critics , such a situation would be precarious. It would amount to imposing the view of a person who sponsored the legislation on everybody else to whom the statute applies.
In case of legislations passed long ago, it would result in the imposition of a view that may not hold relevance in present times.
Therefore, the speeches orated by ministers should be used minimally and carefully
Historical Facts And Surrounding Circumstances
Historical Facts Are Very Essential To
Understand The Subject Matter Of The Statute Or To Have Regard To The
Surrounding Circumstances Which Existed At The Time Of Passing Of The Statute.
The Rule Of Admissibility Of This External Aid Is Especially Useful In Mischief/
Social Evil /Issue Rule.
The Rule That Was Laid Down In The Heydon’s
Case (1584), Has Now Attained The Status Of A Classic. The Mischief Rule
Enables The Consideration Of Four Matters In Construing An Act:
· What Was The
Law Before The Making Of The Act?
· What Was The Mischief
For Which The Law Did Not Provide?
· What Was The Remedy
Provided By The Act?
· What Was The Reason
Of The Remedy?
This Rule Was Applied In Bengal Immunity Co. V. State Of Bihar
In The Construction Of Article 286 Of The Constitution In Which The Supreme
Court Held That A State Has The Legislative Competence To Impose Sales Tax But
On The Same Transaction Sales Tax Cannot Be Imposed By Several States. Since
The Function Of The Court Is To Find The Meaning Of The Ambiguous Words In A
Statute, A Reference To The Historical Facts And Surrounding Circumstances That
Led To The Enactment Assist The Courts In Efficient Administration Of Speedy
Justice. The Rule Permits Recourse To Historical Works, Engravings, Pictures
And Documents Where It Is Important To Ascertain Ancient Facts Of A Public
Nature.
In Keats V. Lewis
Merthbyr Consolidated Collieries Ltd. (1911) It Was Held That The
External Aid In The Form Of Historical Facts And Circumstances Surrounding The
Legislation Is Necessary And Quite Useful In Understanding The Subject Matter
Of The Statute And Thereby To Arrive At The Legislative Intent
Express Newspaper V Union Of India
Sc Clearly Held
That History Of Legislation And Other External Sources Can Be Looked Into In Case
Of Ambiguity
State Of West Bengal V Nirpendra Nath
Sc Held That Courts
Are Free To Consult Earlier State Of Law To Find Out True Meaning Of Enactment
John Vallamattom V Union Of India
While Interpreting
A Statute Court May Not Only Consider Past History But Also Manner In Which It
Has Been Dealt With By The Original Legislature.
Auckland Jute Co Ltd. V Tulsi Chandra Goswami ,Mukherjee J
Observed That For The Purpose Of Ascertaining The Object And Scope Of An Old Statute And For Explaining Language That Is Susceptible To Diff Meaning It May Be Useful To Remember Well Known Historical Facts Which Lead To The Enactment
Lord Halsbury– Subject Matter With Which Legislation Was Dealing And The Facts Existing With Respect To Such Legislation Are Legitimate Topics To Consider In Ascertaining What Was The Object And Purpose Of Act
LETTERS
The letter written by Law
Minister cannot override the statutory provision. When the statute is very
clear, whatever statement made by the Law Minister on the floor of the House
cannot change the words and intendment borne out from the words. It was held
that such a letter cannot be read to interpret the provisions of Section 100A CPC. The
intention of the Legislature is more than clear in the words and the same has
to be given its natural meaning and cannot be subject to any statement made by
the Law Minister in any communication. The words speak for themselves. It does
not require any further interpretation by any statement made in any manner.
STATEMENT OF OBJECTS AND REASONS
The Statement
of Objects and Reasons, seeks only to explain what reasons induced the mover to
introduce the bill in the House and what objects he sought to achieve
But those
objects and reasons may or may not correspond to the objective which the
majority of members had in view when they passed it into law.
The Bill may
have undergone radical changes during its passage through the House or Houses,
and there is no guarantee that the reasons which led to its introduction and
the objects thereby sought to be achieved have remained the same throughout
till the Bill emerges from the House as an Act of the Legislature, for they do
not form part of the Bill and are not voted upon by the members.
The statement of objects and reasons accompanying a
legislative bill cannot be used to ascertain the true meaning and effects of
the substantive provisions of the legislation, but it can certainly be pressed
into service for the limited purpose of understanding the background, the
antecedent state of affairs and the object that the legislation seeks to
achieve. If the meaning of the provision of a statute is clear and explicit, it
is not necessary to advert to the objects and reasons thereof.
The Statement of Objects and
Reasons is undoubtedly an aid to construction but that by itself cannot be
termed to be and by itself as an aid to the construction of a statute. It is a
useful guide but the interpretations and the intent shall have to be gathered
from the entirety of the statute.
In Ashwini Kumar’s case,
the statement of Objects and Reasons was ruled out as an aid to the
construction of a statute.
When the validity of a particular statute is brought into
question, a limited reference may be made to the Statement of Objects and
Reasons but it may not be relied on. It may be employed for the purposes of comprehending
the factual background, the prior state of legal affairs, the surrounding
circumstances in respect of the statute and the evil which the statute has
sought to remedy. It cannot be the exclusive footing upon which a statute is
made a nullity through the decision of a court of law.
The Statement of Objects and Reasons can be referred only
for understanding the background, the antecedent state of affairs, the
surrounding circumstances in relation to the state of affairs, and the evil
which the statute has sought to remedy. It can be referred to only to ascertain
conditions prevailing at the time which prompted the introduction of Bill but where
the language of the statute is clear and plain it is not required to be
referred to.
It cannot be utilized for the
purpose of restricting and controlling the plain meaning of the language
employed by the legislature in drafting a statute and excluding from its
operation such transactions which it plainly covers.
In Babu Ram v State of U.P, it was held that the statement of
Objects and Reasons can be referred to ascertain mischief sought to be remedied
by the statute.
USE OF FOREIGN DECISIONS
Reference
to English and American decisions may be made, because they have the same
system of jurisprudence as ours, but do not prevail when the language of the
Indian statute or enactment is clear. They are of assistance in elucidating
general principles and construing Acts in pari material. But Indian statutes
should be interpreted with reference to the facts of Indian life.
Reference
to decisions of the English Courts was a common practice in the administration
of justice in pre independent India. The reason behind this was that the Modern
Indian Legal System owes its origin to the English Common Law System.
But
after the commencement of the Constitution of India as a result of the
incorporation of the Fundamental Rights, the Supreme Court of India gave more
access to American precedents.
It
cannot, however, be doubted that knowledge of English law and precedents when
the language of an Indian Act was not clear or express, has often been of
valuable assistance. Speaking about Indian Codes Shri M.C.Setalvad has stated:
“Where the language of the code was clear and applicable, no question of
relying on English Authority would arise. But very often the general rule in
the Indian Code was based on an English Principle and in such cases the Indian
Courts frequently sought the assistance of English Decisions to support the
conclusions they reached. They could not otherwise for not only the general
rules contained in the codes but some of the illustrations given to clarify the
general rules were based on English decisions
In
the case General
Electric Company v. Renusagar Power Company30 , the Supreme Court of
India held that when guidance is available from Indian decisions, reference to
foreign decisions may become unnecessary. Different circumstances may also
result in non acceptance of English precedents by the Indian Courts.’
In the case M.V.Elisabeth v. Harwan Investment and Trading
Pvt. Ltd., the Supreme Court differed from English decisions and
interpreted the words „damage caused by a ship‟ in Section 443 of the Merchant
Shipping Act, 1958 as not limited to a physical damage caused by a ship by
reason of its coming into contact with omething; it intended to include damage
to the cargo carried in a ship. The Supreme Court in this case differed in its
opinion because in India there is no other Act covering claim of damages for
damage to the cargo carried in a ship but in England this subject is covered
expressly by a different Act.
TEXTBOOKS
Sometimes,
courts, while interpreting a statute refer textbooks authored by distinguished
jurists and eminent scholars, so as to arrive at a true meaning of an enactment.
However, it is not necessary that the meaning of the words given in the
textbooks should correspond to the views/opinions of the Courts. In certain
cases, Vedas are quoted with approval by the courts. For example- Manu Smriti,
Agna Valkya Smriti, Jimutavahana, Vignaneswara, Kanitilya etc. Kesavananda Bharati
v. State of Kerala (1973) In this case, the Supreme Court referred a
large number of textbooks. The majority opinion was that, in view of many
opinions and counter opinions expressed by the authors and jurists in the
textbooks, it was not desirable to follow the opinions quoted in the textbooks.
Precedent is a legal principle or rule that is created by a court
decision. This decision becomes an example, or authority, for judges deciding
similar issues later.
Stare decisis is the doctrine that obligates courts to look to precedent when
making their decisions.
A decision made by a superior court, or by the same court in
an earlier decision, is binding precedent that the court itself and all its
inferior courts must follow.
A court may overturn its own precedent, but should do so
only if a strong reason exists to do so, and even in that case, should be
guided by principles from superior, lateral, and inferior courts
Stare decisis furthers fair and efficient adjudication by
sparing litigants the need to relitigate (and judges the need to reconsider)
every issue in every case, and it discourages a rush of litigation whenever a
change of personnel occurs on the bench. Third, stare decisis promotes public
confidence in the judiciary by providing some constraints on judges power
through the obligation to build upon prior decisions in a fashion that may
withstand professional criticism
Taylor v.
Sturgell, "[S]tare
decisis will allow courts swiftly to dispose of repetitive suits
..."
Payne v. Tennessee,
501 U.S. 808, at 827 (1991): "Stare decisis is the preferred course
because it promotes the evenhanded, predictable, and consistent development of
legal principles, fosters reliance on judicial decisions, and contributes to
the actual and perceived integrity of the judicial process."
Under this
rule, a principle of law which has become settled by a series of decisions is
generally binding on the courts and should be followed in similar cases.
The Government of India Act,
1935 expressly made the
decisions of the Federal court and the Privy Council binding on all Courts in
British India and thus gave statutory recognition to the doctrine of stare
decisis. The Federal courts were not bound by its own decisions. After
independence, the doctrine of precedent continues to be followed in the
country.
Article 141 of the Constitution of India makes the ‘law
declared’ by the Supreme Court binding on all courts within the territory in
India. The Expression ‘law declared’ implies the law creating role of the
Supreme Court. The Supreme Court is not bound by its own decisions.
In Bengal Immunity Co. v. State of Bihar the court observed that there is nothing in the
Indian constitution that prevent the Supreme Court from departing from its own
previous decision if it is convinced of its error and baneful effect on public
interest. In so far as high court are concerned, the decisions of a High Court
are binding on all subordinate courts within the jurisdiction of High Court.
The rule is
based on expediency and public policy.
In Voltas Ltd.
v. Rolta India Ltd.,870 the Supreme Court has held that: “We are absolutely
conscious that a judgment is not to be read as a statute
Hari Singh v. State of Haryana, it was noted that it is true that in the system
of justice which is administered by courts, one of the basic principles to be
kept in mind that the courts of co-ordinate jurisdiction should have consistent
opinions in respect of similar sets of facts and circumstances or question of
law
If opinions given on
identical facts are inconsistent, instead of achieving harmony in the judicial
systems, it will lead to judicial anarchy. The view that has held the field for
a long time must not be disturbed merely because of the possibility of another
view.
In the case of Narmada Bachao
Andolan v. State of Madhya Pradesh & Anr., 871 the Supreme Court
has observed that: “The Court should not place reliance upon a judgment without
discussing how the factual situation first in with a fact situation of
the decision on which reliance is placed, as it has to be ascertained by analyzing
all the material facts and the issues involved in the case and argued on both
sides. A judgment may not be followed in a given case if it has some
distinguishing features. A little difference in facts or additional facts may
make a lot of difference to the l value of a decision. A judgment of Court is
not to be read as a statute, as it is to be remembered that judicial utterances
have been made in setting of the facts of a particular case.
One additional
or different fact may make a world of difference between the conclusions in two
cases. Disposal of case by blindly placing reliance upon a decision is not
proper.
In Mishri Lal v.
Dhirendra Nath importance of this doctrine was emphasized for the
purpose of avoiding uncertainty and confusion
This Court in Maktul v.Manbhari
explained the scope of the doctrine of stare decisions with reference to
Halsbury’s Laws of “Apart from any question as to the courts being of
coordinate jurisdiction, a decision which has been followed for a long period
of time, and has been acted upon by persons in the formation of contracts or in
the disposition of their property, in the general conduct of affairs, or in legal
procedure or in other ways, will generally be followed by courts of higher
authority than the court establishing the rule, even though the court before
whom the matter arises afterwards might not have given the same decision had
the question come before it originally. But the Supreme Appellate Court will
not shrink from overruling a decision, or series of decisions, which establish
a doctrine plainly outside the stature and outside the common law, when no
title and no contract will be shaken, no persons can complain, and no general
course of dealing be altered by the remedy of a mistake.”
In the case of Sakshi v. Union of Inaia & Others, (2004) the
Supreme Court has observed that: “ Stare decisis is a well-known doctrine in
legal jurisprudence. The doctrine of stare decisis, meaning to stand by decided
cases, rests upon the principle that law by which men are governed should be
fixed, definite and known, and that, when the law is declared by a court of
competent jurisdiction authorized to construe it, such declaration, in absence
of palpable mistake or error, is itself evidence of the law until changed by
competent authority. It requires that rules of law when clearly announced and
established by a court of last resort should not be lightly disregarded and set
aside but should be adhered to and followed. What is precludes is that where a
principle of law has become established by a series of decisions, it is binding
on the courts and should be followed in similar cases. It is a wholesome
doctrine which gives certainty to law and guides the people to mould their
affairs in future”.
“Per
incuriam”
are those decisions given in ignorance or forgetfulness of some statutory provisions
or authority binding on the Court concerned, or a statement of law caused by
inadvertence or conclusion that has been arrived at without application of mind
or proceeded without any reasons so that in such a case some part of the
decision or some step in the reasoning on which it is based, is found, on that
account to be demonstrably wrong.
Doctrine Of Prospective Over
Ruling
Although the
doctrine of precedent is the normal course followed, decisions that are erroneous
or that do not hold good in view of challenged circumstance, may be overruled
by higher forums.
Prof. Laksminath notes that a decision may be overruled
where it is recent or there is a divided opinion, the opinion is erroneous, the
decision is unclear, causes in convenience and hardship, the error in the prior
decision cannot be easily corrected by the legislative process or the decision
is vague.
Once overruled, a prior decision is no longer
a binding precedent.
y the
application of this doctrine, changes in the position of law that are laid down
by the court are made applicable only prospectively from the date that the
change in law has been brought about by the court or from any other date
specified by the Court so as not to disturb past matters that have been finally
settled
LC Golaknath v. State of Punjab which
overruled its earlier decisions in Shakari Prasad`s case and Sajjan Singh`s
case by which the first and seventeenth amendments.
Patterson v. McLean Credit Union
"Our precedents are not sacrosanct, for we have overruled prior decisions
where the necessity and propriety of doing so has been established."
ADVANTAGES
having precedent
facilitates the development of a coherent body of legal principles that can be
used in the future. Courts have to use reason and logic in applying the law,
and so that their decisions are not merely arbitrary
Note. The whole common law principle, especially
judicial activism, seems much more arbitrary than codified law. Court
decisions (and therefore precedents) are freely available to everyone to read
and understand, and so this is transparent and fair
CRITICISM
One of the most
prominent critics of the development of legal precedent on a case-by-case basis
as was philosopher Jeremy
Bentham.
He famously attacked the common law as
"dog law":
When your dog
does anything you want to break him of, you wait till he does it, and then beat
him for it. This is the way you make laws for your dog: and this is the way the
judges make law for you and me.
and the slow
growth or incremental changes to the law that are in need of major overhaul.
every case is
different, and so it is unjust to simply apply the same reasoning as in a past
case. This injustice is difficult to fix because only a superior court, faced
with a case that raises the unjust precedent, can overrule the precedent
DICTIONARY
The meaning of
particular words in an Indian statute is to be found not so much in a strict
etymological propriety of language nor even in popular sense, as in the subject
or occasion on which they used. But it is well known that words are generally
used in their ordinary sense and therefore, though dictionaries are not to be
taken as authoritative in regard to the meanings of the words used in statutes,
they may be consulted.
In Voltas Ltd. v. Rolta India Ltd.,864 the Supreme
Court has held that: “Dictionaries can hardly be taken as authoritative
exponents of the meanings of the words used in legislative enactments for the plainest
words may be controlled by a reference to the context
in the words of Ram Lal,J. in Daulat Ram v. Colkart Bros.,865"
a dangerous method of interpretation."
Lord
Coleridge : “I am quite aware that dictionairies
are not to be used as authorative exponents of meanings of words but well known
rule of courts of law that words have to be understood in their ordinary sense.
Hence we are directed towards these books.
Dictionaries
can be consulted by the courts whenever the need arises to know the ordinary
sense of a word. However, in selecting one out of the various meanings of a
word, regard must always be had to the context as it is a fundamental rule that
“the meanings of words and expressions used in an Act must take their colour
from the context in which they appear
In Ramavtar v.
Assistant Sales Tax officer, the question before the court was
whether betel leaves are vegetables and, therefore, exempt from imposition of
sales tax under the central Provinces and Berar Sales Tax Act, 1947 as amended
by Act 16 of 1948. The dictionary meaning of ˜vegetable was sought to be relied
on wherein it has been defined as pertaining to, comprised or consisting of or
derived or obtained from plants or their parts.
It was held that the dictionary meaning could not be said to reflect the true
intention of the framers of the sales tax law and betel leaves should be
understood in the same sense in which they are commonly understood. Therefore, sales
tax could be levied on the sale of betel leaves.
In Motipur Zaminday Company private Limited
v. State of Bihar,{3) the question was
whether sales tax could be levied under the Bihar Sales Tax Act 1947 on the
sale of sugarcane. The applicant argued that sugarcane being green vegetable
was exempt from imposition of tax.
The dictionary meaning of vegetable was quoted in Support of the argument. The
Supreme Court rejected the contention and held that in the context of the Act vegetables
mean only such vegetables as can be grown in a kitchen garden and used during
lunch and dinner as articles of food.
This was the common
parlance meaning of the term and the legislature intended the word to be under stood
only in such sense and consequently, the dictionary meaning was not of much
consequence under the circumstances of the case.
In Kanwar Singh
v. Delhi Administration, the appellants beat up the officers of the
respondents while the latter were pounding up stray cattle. The appellants were
charged under section 332, Indian Penal Code but they pleaded the right of
private defense of property. The question was whether the cattle being pounded
up were abandoned within the meaning of section 418, Delhi Municipal
Corporation Act, 1957.
The appellants emphasized on the dictionary meaning of the term which means ‘Complete
leaving of a thing as a final rejection of one responsibilities so that it becomes ownerless.
Observing that the acceptance of dictionary meaning would destroy the primary
purpose of the Act itself which could never is the intention of the
legislature; the court held that abandoned means Unattended or let loose, in
the present context of the statute.
In Balram
Kumawat v. Union of India, {5) the supreme court remarked that where
the object of the Parliament was to stop not only trade in imported elephant
ivory but ivory of every description under the wildlife protection Act, 1972 as
amended by Act 44-of 1991 vide Section 49-C, the word ivory will include ivory
of every description imbedding mammoth ivory as is clear from the dictionary
meaning of the word Ivory.
In Peyare
lal v/s Mahadeo Ramachandra, {6) the appellant was charged under the
Prevention of Food Adulteration Act, 1954 for selling supari sweetened with a
lamed artificial sweetener. The question was whether such a supari was an
adulterated food within the meaning of the Act.
The appellant relied on the dictionary meaning of the word food and contended
that he had committed no offence. Rejecting the contention, the Supreme Court
held that dictionary meaning is not of much value when the word is defined in
the Act itself. The word food has been defined under the Act very widely and covers
all articles used as food as also every component entering into it including flavoring
and coloring matters and preservative.
Mangoo singh v election tribunal
Appellant at
the time fo fillibg nomination foe election, owned municipal taxes in excess of
one years demand. He however paid up all the taxes before the date of poll and was
elected. His election was set aside .
He contended
before SC that important date was not date of filing of nomination but date of poll
and further no notice of demand was filed on him
Dismissin his
petititon, SC held that relevant date is the date of nomination.
Section 13D(g)
of up Municipalities Act, 1916 read as – a person shall be disqualified for
being chosen as for being member of municipal board if he is in arrears in
payment of municipal tax or other dues inexcess of one years demand.
Alamgarh V State of Bihar
Appellant was
charged with having committed an offence under section 498 IPC for keeping with
him a married woman.
Section498: Enticing or taking away or detaining Whoever
takes or entices away any woman who is and whom he knows or has reason to
believe to be the wife of any other man, from that man, or from any person
having the care of her on behalf of that man, with intent that she may have
illicit intercourse with any person, or conceals or detains with that intent
any such woman, shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.
One of teh contention of accused was that woman had come to
live with her voluntaruily leaving her husband behind , he could not have
deatined her.
Rejecting the contention SC held that dictionary meaning of
dentention may mean – detaining against the will but here the provision tries
to protect the right of the husband against anyone interfering with it by
depriving him of company of his wife and this context dictionary meaning might
not be accepted.
EMPLOYEE
STATE INSURANCE CORP V TATA ENGINEERING LOCOMOTIVE COMPANY
Ques was whther
respondents were bound to contribute monetarily under ESI Act. Dictionary
meaning of apprentice is someone who is trained by the company and agree on
mutual terms and conditions . SC held that that even if apprentice is givens
some money does not make him employee
State of UP V
Kores ltd.
Sec 3A UP SALES
TAX ACT , sale of paper was also to be taxed. SC held that carbon paper should
be interpreted in its popular and commercial sense. Ordinarily paper is used
for writing, print, packaging but it is a special kind of paper manufactured
through special process and used to copy documents.
Therefore
carbon paper was not intended to be covered under the notification
State of
Orissa v Tirathgarh Paper Mills
SC observed
that dictionary meaning cannot be looked where word has been statutory defined
or judicially interpreted. But if no such definition , court may take aid of
dictionary to ascertain meaning in common parlance bearing in mind the relevant
context.
S SAMUEL V UNION OF INDIA
In common parlance curt observed that food is something that is eaten. Wider sense it may include a drink also. Posses the quality to maintain life and its growth. Nutritive or nourishing value. Tea is not food in common parlance or diction. Essential comm not include tea
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