PART A

WEEK 1
Andrew Stumpff, The Law is a Fractal: The Attempt to Anticipate Everything

INTRODUCTION
This section includes quotes from Leo Tolstoy and Thomas Aquinas, both of which suggest that it is
impossible for a rule or law to account for every possible scenario. The section goes on to define
inappropriate rules as those that can produce unintended and unacceptable results, even for the rule's
author. Despite this, rule writers often attempt to create perfect advance enumeration, which can lead
to significant costs for those being regulated. No man is so wise as to be able to take account of every
single case, wherefore he is not able sufficiently to express in words all those things that are suitable
for the end he has in view. And even if a lawgiver were able to take all the cases into consideration, he
ought not to mention them all in order to avoid confusion. – Thomas Aquinas, Summa Theologica, ca.
1270
® An Inappropriate rule: Define an inappropriate rule as a rule that, if followed literally, would
in some cases lead to an unintended or unforeseeable result (which even the author did not
account for)
® It is impossible for a rule writer to write an appropriate and objective rule to cover every
situation in advance.
® However, Rule writers act today as though they were unaware of this impossibility of perfect
rule making.

I. THE NUMBER LINE

® Writing an appropriate, objective, and specific rule for every imaginable situation is impossible.
It resembles certain mathematical phenomena.

® Legal rules resemble the number line, where an infinite number of points lie between any two
points.

® Writing an exhaustive set of specific and appropriate rules in any context is equivalent to
assigning labels to all the points on the number line, which is an infinite task. The same is true
for any rule system, and it is impossible to cover all specific factual situations that might
arise. The goal of writing an exhaustive set of specific and appropriate rules in any context is
not attainable.

® It is impossible, even in principle, to write an appropriate, objective, and specific rule for every
imaginable situation. The law resembles a particular mathematical formula.
o For example, there are an infinite number of points between point 1 and point 2 on a
number scale.

® From a certain vantage, legal rules are analogous. Imagine, for example, that instead of a
number line we were considering a collection of unique factual scenarios and a rule that
assigned legal consequences to each of those scenarios.
 o For instance, we might consider a municipal park for which a city had adopted the rule,
“no vehicles are allowed in the park.” We could treat “Point 1” on the number line as
representing the act of driving a car through the park and “Point 2” as representing
refraining from driving a car through the park. The rule would assign the label of
“illegal” to Point 1 and “legal” to Point 2.
® As has been famously pointed out, these two points and the rule itself are insufficient to cover
all the specific factual situations that might arise involving vehicles in a park. At least they are
insufficient in any reasonable rule system. What if, for example, a police vehicle has to enter
the park on an emergency call? If we want an appropriate, specific rule, we would need another
point, between Points 1 and 2, corresponding to the factual scenario, “A police vehicle entering
the park.” Point 1.5, let’s call it, to which we would assign, like Point 2, the label “legal.” But
what if the driver of the car were a thief who had stolen it from the police? This would fall at
1.2.

® Given the numberless potential variations, foreseeable and unforeseeable, in “vehicles,”

motives, and circumstances, there can, provably, be no end to the possible specific scenarios—
and thus no limit on the number of rules that would result from trying to write an appropriate
one for each possible, distinct fact situation.

® 2nd Example: Rule prohibiting killing someone. What if it is self Defence? Therefore, writing
an exhaustive set of specific and appropriate rules in any context is equivalent to assigning
labels to all the points on the number line; that is to say, it is literally an infinite task.

® You cannot account for all factual scenarios because all of them will be distinct, so rule makers
cannot account for all situations. The author draws an alalogy between this and the number of
points between 1 and 2 on a number scale and explains how you cannot label each point since
they are infinite.

I. THE FRACTAL

® The number line, being one-dimensional, is not the perfect metaphor for rules. We think of
rules as defining an “area” of conduct that is legal and a “border” between what is legal and
illegal. (Hence the phrase “bright-line rule.”) Thus, a two-dimensional analogy better reflects
intuition. Employing this metaphor, we say that everything “within the border” of the area of
proscribed conduct is illegal, and everything outside is legal.

All points outside the designated area are legal

Area of Illegality
All points inside are illegal.

® This section discusses the idea of a rule being represented by an infinitely complicated border,
rather than an infinitely large number of factual scenarios.

® The example of the rule "no vehicles in the park" is used to illustrate how exceptions can
complicate the border of the rule.
 ® The exception for police vehicles would involve introducing a complication to the
border—making legal a small portion of what would otherwise be illegal.
® An exception to that exception would be necessary for stolen police vehicles

Area of Area of
Illegality Exception Illegality Exception to the Exception

® The section also mentions the possibility of subjective rules covering every situation, but that
they are disfavoured due to predictability and rule-of-law concerns.
® The focus of the article is on rules that cover every fact situation but leave no room for
subjectivity. The designated area inside the border of the rule is considered “illegal.”
® The legal and illegal areas can be infinitely intricate due to necessary rule refinements
and exceptions.

® Fractal: It happens that a corresponding mathematical construct, the “fractal,” has been
developed to capture just this idea. This concept was described, and the term invented, relatively
recently by Benoit Mandelbrot.
® A fractal is a type of shape whose contour is infinitely complicated.
® The coast of England is an example of a fractal shape.
§ Fractals are shapes that are self-similar at different scales, meaning that they have
an infinite number of smaller and smaller inlets and bays that make up their
contours.
® The concept of fractals has been applied to legal issues in different ways.
® This section discusses the concept of seemingly smooth surfaces and how they appear
to become more complex upon closer inspection.
® The author uses the example of police vehicles appearing smooth at first glance, but
becoming jagged upon closer magnification.
® The author also notes that even at the atomic and subatomic levels, there is no verifiably
"smooth" surface.

® Fractal shapes are scale-insensitive, meaning their relative complexity remains the same
regardless of scale.
® A mathematical formula can be written to graph a fractal shape with this property at
every scale.
® The graph of a fractal can only be approximated, and the shape cannot be fully resolved
even at infinite magnification. The Mandelbrot set is an example of a fractal shape.

® The law is also a fractal, as there can never be perfect resolution between all possible specific
actions that are either legal or illegal.
 ® New facts and circumstances can always create unresolved "grey areas" between
resolved regions of fact space.

II. A BRIEF HISTORY OF RULE PHILOSOPHY

® This section discusses the philosophical debate surrounding the specificity of legal rules. It is
impossible to create a specific rule for every possible scenario, and that attempting to do so
would be unwise.
o Instead, legislators must strike a balance between specificity and generality, and use
vagueness to avoid incompleteness.

® This debate has been ongoing for centuries, with scholars such as Aristotle, St. Thomas
Aquinas, and Oliver Wendell Holmes contributing their perspectives.

® The section also mentions Roscoe Pound's hierarchy of legal guidelines, which ranges from
specific rules to general standards, and suggests that different situations may require different
approaches.

® Writers have considered, among other things, whether it is better, or more just, or more
predictable for legislatures to spell out as much as possible in advance, or instead simply to
repose discretion in the eventual decision maker (or, indeed, whether the eventual decision
maker always effectively does have discretion, whatever the legislature intends or says).

® A summary of what could be called “the philosophy of rule specificity,” insofar as relevant to
present purposes, might begin with the year 350 BCE, when Aristotle expressed his opinion
that at least in certain contexts, a general rule can never be appropriate for every specific case:
o “[A]ll law is universal but about some things it is not possible to make a universal
statement which shall be correct. We do not know if this was accounted for but 1,500
years later, St. Thomas Aquinas found it necessary to make the statements employed
as this Article’s second epigraph, to the effect that for a lawgiver to describe all possible
cases in advance would be both (1) impossible, and anyway, (2) not a good idea. From
there, one begins to find in the historical record references to problems of generality
and specificity that become, along with extant published legal philosophy generally,
more frequent.

® Oliver Wendell Holmes discussed specificity in the development of the common law. He
suggested a general rule or standard would always be available as a default principle when a
rule of more specific application could not be found—that is, even if a specific rule were not
provided for every situation, that would not mean some rule did not apply to every case.

® Roscoe Pound had constructed a hierarchy, based more or less on specificity, of types of legal
guidelines, ascending from “rules” through “principles,” “conceptions,” and “doctrines,” and
ending with the most general category, “standards,” the latter of which he offered the
“reasonable prudent man” as an example.

® The text discusses the problem of interpreting rules and laws.

 • Using the example of a simple prohibition against vehicles in a park, the author notes that
even seemingly straightforward rules can have ambiguous or unclear areas at their borders.
H. L. A. Hart referred to this problem as the "open texture of the law," meaning that a law
may have clear cases but also a "fringe of open texture" where interpretation is difficult.
• This insight suggests that legal interpretation is not always straightforward and that there
may be room for debate or disagreement even within apparently clear rules.
• In 1958, H. L. A. Hart addressed himself to the problem of “vehicles in the park.” That
such a simple prohibition could give rise to so many interpretive difficulties led Hart to
conjecture that any rule— while it may have a “core of settled meaning”—at its margins
would inevitably be characterized by “a penumbra of debatable cases.”29 As another term
for this “penumbra,” Hart (borrowing from the existing terminology of linguistic
philosophy) described the problem of the difficult rule border as the “open texture of the
law”—as in a law’s having an area of clear cases and a “fringe of open texture. All these
shapes describe the borders of a fractal.

® Fredrick Schauer: The text discusses the problem of hard cases in legal and philosophical
contexts.
• Hard cases are those where an objective rule gives an unacceptable answer, such as a police
car responding to an emergency in a park where vehicles are prohibited.
• However, most cases are easy cases where the rule is applied without issue.
• The problem with hard cases is that attempts to eliminate them are frustrated by the fractal
border problem, where it is always impossible to locate the border of a rule in advance to
avoid all potential hard cases.
• The only difficulty-free alternative is to entrust all power to a perfectly enlightened despot
to decide each case as it arises, which is unavailable.
• More recently, Frederick Schauer restated the problem in terms of “easy cases” and “hard
cases.”
• Hard cases for this purpose involve an objective, clear rule—e.g., “no vehicles allowed in
the park”—applied to a specific factual situation where that rule gives an unacceptable
answer, such as a police car responding to an emergency.
• The phenomenon with which all writers have struggled is that two things are
simultaneously true:
• It is always possible to have mostly easy cases on both sides of a rule's border, and yet
i. it is always impossible to locate that border in advance in a sufficiently precise
way to avoid all potential hard cases because the number of the latter is infinite.

III. GENERALITY AND AMBIGUITY

® The section references various scholars who have discussed the issue, including Scalia,
Kennedy, and Surrey. It discusses the limitations of the objective-subjective and detailed-
general axes in legal rules.

® The general-specific dimension is different from the objective- subjective dimension. A rule’s
generality refers to the range of situations to which the rule applies, which is not the same as
the rule’s objectivity.
® There also exists a different continuum, running from “subjectivity” to “objectivity.”
Kennedy’s term for this second continuum is the degree to which a rule is “formally realizable.”
For example, a highly formally realizable rule is: “Driving faster than 55 mph is always illegal;
and driving less rapidly than 55 mph is always legal.” A highly non-formally realizable (or
subjective) rule would be: “Driving in a safe manner is always legal, and driving in an unsafe
manner is always illegal.

® If rules are not objectively realizable, then decisions will effectively be delegated to the judge
or other decision maker and will therefore inevitably be affected or even determined by that
particular decision maker’s value system and prejudices.

® Discussions of formal realizability raise issues like whom we want making a particular
decision—the legislature or a judge— and questions such as Kennedy’s battle between the
values of “communitarianism” and “individualism.”

® Whether rules ever actually constrain decision-makers. At its philosophical extension, this
inquiry is a special case of the question of whether language itself can ever have fixed meaning.
For present purposes, I simply assume that there can exist such a thing as an objective rule that
can constrain decision makers. I make this assumption mostly because if there is not such a
thing, then my contention is already proved: having an exhaustive set of perfectly specific rules
is in that case already obviously pointless, with no further need for discussion about the
feasibility or merits of specificity. Specificity is meaningful only if determinateness is possible.

® One writer who did think about the specific-general continuum was Bayless Manning,.
Hyperlexis is the pathological condition caused by an overactive lawmaking gland.” A
significant part of the hyperlexis problem arises from the effort to deal with problems with too
great particularity.

® Manning also proposed a “Law of Conservation of Ambiguity”: Elaboration in drafting does

not result in reduced ambiguity. Each elaboration introduced to meet one problem of
interpretation imports with it new problems of interpretation. Replacing one bundle of legal
words with another bundle of legal words does not extinguish debate, it only shifts the terms in
which the debate is conducted. Essentially, the draftsman can control and select what will be
left ambiguous, but he cannot banish or control the aggregate amount of ambiguity. –
FRACTAL

® At the same time, vagueness can have practical benefits. As many have pointed out, a vague
rule denies people the benefit of a clear line up to which they could otherwise toe.

® The tendency toward over-elaboration is driven by people, like Justice Scalia, who do not prefer
a subjective rule because it is unpredictable. However, an objective rule will simply be wrong
for many situation.

® While the subjective, general side has a definite bound, the opposite end of both spectra is
infinite, leading to hard cases and rules-cynicism.
 ® Lawmakers often write rules without considering these limitations, resulting in the elaboration
approach, which enumerates as many foreseeable factual occurrences as possible and writes a
specific rule for each.
o However, this approach can result in rules that are too lengthy to read and impose
untenable burdens on the regulated population.

® The text discusses the two different continuums of rule styles that should be recognized as
distinct - generality to specificity, and subjectivity to objectivity.
o The former refers to the range of situations to which the rule applies, while the latter
relates to the degree to which a rule is formally realizable. The text argues that
specificity has its own problems, including futility, as it is impossible to have a specific
rule for every situation.

® The article also highlights the "Conservation of Ambiguity" principle, which states that
elaboration in drafting does not result in reduced ambiguity. The article contends that the rule
writer cannot have it all and that the approach one prefers is a function of which values one
prioritizes.

® The text concludes by emphasizing that, if the rule writer is too detailed, the rules will become
too lengthy to read, imposing untenable burdens upon the regulated population.

Few things are clear:

® That the approach you prefer is in large degree a function of which values you prioritize.
® Another is that certain relevant observations seem to have been made but then mostly
ignored; or if not ignored, at least insufficiently emphasized.
® elaboration” approach: trying to enumerate as many foreseeable factual occurrences as
possible and write a specific rule for each.
® Thus, the second insufficiently recognized point is that if you try too hard—if the rule writer
is too detailed—the rules will become, literally, too lengthy to read. Their mere existence
will tend to impose untenable burdens upon the regulated population.

IV. COMPLEXITY AND ITS COSTS

® The original U.S. Internal Revenue Code was much shorter in 1913, consisting of only 12,000
words on 27 pages. However, by 1942, it had grown to 79,000 words and now exceeds 3.4
million words and 5000 pages, with one sentence alone exceeding 2800 words. This growth in
length makes it difficult to understand and comply with the code.

® This section discusses the complexity of legal scholarship, particularly in tax and employee
benefits law. The author argues that the complexity of these fields arises from a large number
of rules and their interconnections, leading to a maze-like complexity that is difficult to access.

® This complexity is an emergent property of simple elements, similar to a network of pipes or a

computer chip.
® The author suggests that this kind of complexity is distinct from other types of complexity, such
as judgmental complexity, and proposes a definition of "maze-like complexity" as
"inaccessibility due to volume.".

® What, exactly, is the matter with employee benefits law? The most commonly offered answer
is that the field is “complex.” It is not, though, that the subject is complex in the sense of being
difficult to understand, in the way that quantum mechanics is considered to be complex. These
things are complex in the sense the word is used in the phrase “a complex web.”

® The complexity of these subjects has, in the end, to do with the number of rules and ways they
relate to each other—e.g., the cross-references, the defined terms. Maze-like complexity—
“elaborative complexity,” it has been called, to distinguish it from other types of complexity—
might be defined as “inaccessibility due to volume.” Such complexity is borne, at least in part,
of the attempt to be specific about every possible fact situation.

® The Internal Revenue Code is a complex and intricate system that can be difficult to navigate.
The complexity is caused by various factors, including the necessity of legislative compromise
and the desire for advance certainty.

® For instance, the following passage can be found among the regulations promulgated by the
U.S. Department of Treasury, interpreting the rules that apply to “qualified” retirement plans
under section 401(a) of the Internal Revenue Code (it is one among a very large number of
provisions that could have been chosen to illustrate the point): “Q: When does an employee
attain age 70 1⁄2? A: An employee attains age 70 1⁄2 as of the date six calendar months after
the 70th anniversary of the employee’s birth.” - rule writer was trying to leave nothing to
chance.

® The need for certainty is understandable, but attempting to provide exhaustive rules creates
complexity, which can have a significant cost. The cost of complexity is often overlooked, and
each newly added rule may contribute to the group property of complexity.

® The desire for certainty is especially prevalent in fields like tax and employee benefits law,
where the economic quantities at stake can mean clients are anxious to go just exactly as far as
they are able without triggering a penalty.

® First, if we really mean to construct a complete rule system in which every instance that rises
to this level of potential ambiguity is to be specifically identified and eradicated in advance,
think of the number of rules that would be required. Second, observe that even this regulation
does not eliminate all potential debate about when exactly a particular person may be said to
have reached age 70 1⁄2. What if the employee travels, for example, across the International
Date Line? Does she attain the requisite age on the appropriate date as measured in the place of
her birth, or that of her new location

® And what may not be obvious—because, again, the problem is emergent: each newly added
rule may well itself be simple, so that the rule writer may not even be aware of the group
property of complexity he or she is helping to make worse—is the full cost of trying to satisfy
 this unsatisfiable need for certainty.95 In attempting to be exhaustive, the rule writer creates
complexity, the cost of which at some point outweighs the benefits of precision.

® The degree to which these costs have been ignored or misjudged by legal writers, such as law
and economics scholars purporting to calculate the optimal level of rule precision, is striking.
The usual operating assumption seems to have been that because uncertainty is costly, the
existence of a rule for every situation will always reduce transaction costs. If the number of
rules were infinite, then so would be the cost in any specific case of accessing the applicable
one.

® The section argues that excessive precision in legal rules, particularly tax laws, leads to an
increase in compliance costs and a decrease in deterrence value. The cost of tax compliance in
the US is estimated to be $431 billion annually, and the tax compliance industry employs more
people than several large corporations combined.

® The pursuit of precision in legal rules is not always desirable, as it can lead to an explosion in
accessibility costs and encourage aggressive planning.

® The section also highlights the potential cost of the elaborative rule style for substantive policy
choices, as excessively lengthy rules are frequently associated with government intrusion and
employed as an argument against regulation itself. The principle of rule accessibility is
universal.

CONCLUSION

® This section discusses the challenges of achieving certainty in American tax and employee
benefits laws, which seem to have been written with the goal of creating a rule for every
possible fact situation.

® However, the existence of these heavily detailed rules actually leads to ambiguity and
unfortunate consequences.

® The author argues that the tendency towards elaboration in modern law, including the U.S. tax
code, is due to the relative ignorance of fact and indeterminacy of aim that human legislators
face.

® One of the architects of the modern tax regime, Stanley Surrey, was pessimistic about the
prospects for improvement. Overall, the section highlights the difficulties of achieving certainty
in complex legal systems.

® The complexity of tax law is inevitable and likely to increase, and the solution is not in
simplification or nostalgia for a simpler code. The challenge is finding the most efficient way
to manage tax complexity, which involves paying attention to rule style.
 ® The use of safe harbour rules, which combine general principles with a few more precise rules,
could strike a better balance between specificity and accessibility, and minimize the number of
hard cases.

® The fractal quality of every rule means that complete elaboration is futile, and some rule
vagueness should be accepted and even preferred. The challenge for rule writers is to strike a
balance between generality and hand-tailoring, and to study the social operation of legislation
to make it effective.

Ronald Dworkin, Law’s Empire

Dworkin’s Law’s Empire:
® Dworkin says effects of interpretation of statute by judiciary are felt more severely by the
common man. Interpretation can be classified as statecraft and tyranny.
o Every time a judge gives a landmark decision, they are inventing law or creating
exceptions or establishing principles that did not exist before rather than discovering
law.
o Judges should consider impact of judgement on common man.
o They must not divert from actual intent of the statute and interpretation should not
move from statecraft to tyranny. There must be no abuse of power. Dworkin makes an
argument on open justice. Society thinks a good judge will be someone who holds
justice more important than law (their loyalties lie with the public and not statute) and
tries to improve law with every judgement while a bad judge is someone who applies
the law mechanically by looking at precedents, principles, etc. and applies them strictly.
There would be no change in society if there were no good judges. We need to have
good judges, but we also need to have outer limits.
o When judgements are pronounced, what is acceptable to the public is the classic
approach method (look at texts, precedents and then make an analogy). The classical
approach is apparently more acceptable to judges and the public. Dworkin says we
cannot completely do away with legal pragmatism but when done, one should avoid
judicial overreach.
® ‘Chain Novel’ means judges should keep adding value by looking at old judgements and look
at text of statute and stick to integrity of original lawmakers and build on what has been
established.
o This is how one can avoid judicial overreach. When judges go beyond codified law,
they deploy certain principles in their reasoning. In their reasoning they should justify
how principles fit within scheme of act and can it be read alongside provisions and can
it be read along with the statute.
o Judges should give justification whether use of these principles is morally and ethically
sound. Dworkin says even if something is in the statute, they do not have to enforce the
law if they can prove it was not within the intention of lawmakers.
Riggs v Palmer –
Facts: Elmer murdered his grandfather – he poisoned him – in New York in 1882. He knew that his
grandfather's existing will leave him the bulk of the estate, and he suspected that the old man, who had
recently remarried, would change the will and leave him nothing.
Issue: Was Elmer legally entitled to the inheritance his grandfather's (the testator’s) last will provided
(i.e. if he had indeed killed his grandfather)?
The law pertaining to will stipulates the form a will must take to be considered valid in law: how many
and what kinds of witnesses must sign, what the mental state of the testator must be, how a valid will,
once executed, may be revoked or changed by the testator, and so forth. The New York statute of wills,
like most others in force at that time, said nothing explicit about whether someone named in a will could
inherit according to its terms if he had murdered the testator. Elmer's lawyer argued that since the will
violated none of the explicit provisions of the statute it was valid, and since Elmer was named in a valid
will he must inherit.
1. Judge Gray (dissenting opinion) argued for literal interpretation. This method of interpretation
requires that no context-dependent and unexpressed qualifications be made to the general
language, so Judge Gray insisted that the real statute, constructed in the proper way, contained
no exceptions for murderers. He voted for Elmer.
2. Judge Earl (writing for majority opinion) chose the path of intentionalism. He wrote, "that a
thing which is within the intention of the makers of a statute is as much within the statute as if
it were within the letter; and a thing which is within the letter of the statute is not within the
statute, unless it be within the intention of the makers." He said that statutes should be
constructed from texts not in historical isolation, but against the background of what he called
general principles of law: he meant that judges should construct a statute to make it conform as
closely as possible to principles of justice assumed elsewhere in the law. He offered two
reasons. First, it is sensible to assume that legislators have a general and diffuse intention to
respect traditional principles of justice unless they clearly indicate the contrary. Second, since
a statute forms part of a larger intellectual system, the law as a whole, it should be constructed
so as to make that larger system coherent in principle.
Earl argued that the law elsewhere respects the principle that no one should profit from his own wrong,
so the statute of wills should be read to deny inheritance to someone who has murdered to obtain it.
Judge Earl's views prevailed. They attracted four other judges to his side, while Judge Gray was able to
find only one ally. The final outcome of Riggs v Palmer case was that he should not inherit his
grandfather’s property after killing him.

Snail Darter Case

Facts:
1. The United States Congress enacted the Endangered Species Act. It empowers the secretary of
the interior to designate species that would be endangered, in his opinion, by the destruction of
some habitat he considers crucial to its survival and then requires all agencies and departments
of the government to take "such action necessary to ensure that actions authorized, funded, or
carried out by them do not jeopardize the continued existence of such endangered species."
2. A group of conservationists based in Tennessee had been opposing dam construction projects
of the Tennessee Valley Authority, not because of any threat to species but because these
projects were altering the geography of the area.
3. The conservationists discovered that one almost finished TVA dam, costing over one hundred
million dollars, would be likely to destroy the only habitat of the snail darter, a three-inch fish
of no particular beauty or biological interest or general ecological importance.
 4. They persuaded the secretary to designate the snail darter as endangered and brought
proceedings to stop the dam from being completed and used.
5. The authority argued that the statute should not be construed to prevent the completion or
operation of any project substantially completed when the secretary made his order.
6. It said the phrase "actions authorized, funded, or carried out" should be taken to refer to
beginning a project, not completing projects begun earlier.
7. It supported its claim by pointing to various acts of Congress, all taken after the secretary had
declared that completing the dam would destroy the snail darter, which suggested that Congress
wished the dam to be completed notwithstanding that declaration.
8. The Supreme Court nevertheless ordered that the dam be halted, in spite of the great waste of
public funds. (Congress then enacted a further statute establishing a general procedure for
exemption from the act, based on findings by a re- view board.)
Chief Justice Warren Burger (majority opinion) recognized the relevance of congressional intention
to the decision what statute Congress had made. If the acontextual meaning of the words in the text is
clear – if the words "carry out" would normally include continuing as well as beginning a project – then
the Court must assign those words that meaning, unless it can be shown that the legislature actually
intended the opposite result. The legislative history leading up to the enactment of the Endangered
Species Act did not warrant that conclusion, he said, because Congress plainly wanted to give
endangered species a high order of protection even at great cost to other social goals, and it is certainly
possible, even if not probable, that legislators with that general aim would want the snail darter saved
even at the amazing expense of a wasted dam. Burger's theory is Gray's, though in a less rigid form that
gives some role to legislative intention.
Justice Lewis Powell wrote a dissent for himself and one other justice. Powell said that the courts
should accept an absurd result only if they find compelling evidence that it was intended.

McLoughlin v O’Brian
Facts: Mrs. McLoughlin's husband and four children were injured in an automobile accident in England.
She heard about the accident at home from a neighbor at about 6 P.M. and went immediately to the
hospital, where she learned that her daughter was dead and saw the serious condition of her husband
and other children. She suffered nervous shock and later sued the defendant driver, whose negligence
had caused the accident, as well as other parties who were in different ways involved, for compensation
for her emotional injuries. Her lawyer pointed to several earlier decisions of English courts awarding
compensation to people who had suffered an emotional injury on seeing serious injury to a close
relative. But in all these cases the plaintiff had either been at the scene of the accident or had arrived
within minutes.
1. There is a strict and relaxed doctrine of precedent.
2. The strict doctrine obliges judges to follow the earlier decisions of certain other courts, even if
they believe those decisions to have been wrong.
3. The relaxed doctrine of precedent, on the other hand, demands only that a judge give some
weight to past decisions on the same issue, that he must follow these unless he thinks them
sufficiently wrong to outweigh the initial presumption in their favor. This relaxed doctrine may
embrace the past decisions not only of courts above him or at the same level in his jurisdiction
but of courts in other states or countries.
4. The trial judge thought that suffering injury away from the scene was an important difference
because it meant that Mrs. McLoughlin's injury was not "foreseeable" in the way that the injury
to the other plaintiffs had been. The claimant must be in proximity in both time and place.
5. She appealed his decision to the next highest court in the British hierarchy, the Court of Appeal.
 6. That court affirmed the trial judge's decision – it refused her appeal and let his decision stand –
but not on the argument he had used.
7. The Court of Appeal said it was reasonably foreseeable that a mother would rush to the hospital
to see her injured family and that she would suffer emotional shock from seeing them in the
condition Mrs. McLoughlin found. That court distinguished the precedents not on that ground
but for a very different reason that what it called "policy" justified a distinction.
8. The precedents had established liability for emotional injury in certain restricted circumstances,
but the Court of Appeal said that recognizing a larger area of liability, embracing injuries to
relatives not at the scene, would have a variety of adverse consequences for the community.
9. It would encourage many more lawsuits for emotional injuries, and this would exacerbate the
problem of congestion in the courts. It would open new opportunities for fraudulent claims by
people who had not really suffered serious emotional damage but could find doctors to testify
that they had. It would increase the cost of liability insurance, making it more expensive to
drive and perhaps preventing some poor people from driving at all.
10. The claims of those who had suffered genuine emotional injury away from the scene would be
harder to prove, and the uncertainties of litigation might complicate their condition and delay
their recovery.
Mrs. McLoughlin appealed the decision once more to the House of Lords, which reversed the Court of
Appeal and ordered a new trial. They did not believe that the risk of a "flood" of litigation was
sufficiently grave, and they said the courts should be able to distinguish genuine from fraudulent claims
even among those whose putative injury was suffered several hours after the accident. Congestion in
the courts or a rise in the price of automobile liability insurance, they said, however inconvenient these
might be to the community, cannot justify refusing to enforce individual rights and duties that have
been recognized and enforced before. They said these were the wrong sorts of arguments to make to
judges as arguments of law, however cogent they might be if addressed to legislators as arguments for
a change in the law. They said it would be wrong for courts to deny recovery to an otherwise meritorious
plaintiff for the kinds of reasons the Court of Appeal had mentioned, and which the other law lords had
said might be sufficient in some circumstances.

Pragmatism:
® The pragmatist takes a sceptical attitude toward the assumption we are assuming is embodied
in the concept of law: he denies that past political decisions in themselves provide any
justification for either using or withholding the states coercive power. He finds the necessary
justification for coercion in the justice or efficiency or some other contemporary virtue of the
coercive decision itself, as and when it is made by judges, and he adds that consistency with
any past legislative or judicial decision does not in principle contribute to the justice or virtue
of any present one.
® Pragmatism as a conception of law does not stipulate which of these various visions of good
community arc sound or attractive. It encourages judges to decide and act on their own views.
® Pragmatism, on the contrary, denies that people ever have legal rights; it takes the bracing view
that they are never entitled to what would otherwise be worse for the community just because
some legislature said so or a long string of judges decided other people were.
® Pragmatists argue, on pragmatic grounds, that judges must sometimes act as if people had legal
rights, because acting that way will serve society better in the long run.
® Civilization is impossible unless the decisions of some well-defined person or group are
accepted by everyone as setting public standards that will be enforced if necessary, through the
police power.
® So, pragmatism may be an eligible interpretation of our legal practice after all, if it turns out
that our judges declare people to have legal rights only, or mainly, when a self-consciously
pragmatist judge would pretend that they did.
® Pragmatism is an interpretive conception of law, not a semantic theory. It is, as I shall try now
to show, a more powerful and persuasive conception of law than conventionalism, and a
stronger challenge to law as integrity.
® A pragmatist judge would stand ready to revise his practice by enlarging or contracting the
scope of what he counts as legal rights as experience improved the intricate calculations on
which any such strategy would depend. He would undoubtedly, for the reasons canvassed,
include in his list of as-if legal rights the rights that clear legislation purports to create.
® A pragmatist might make his conception as openly pragmatic as he dares, disguising only those
elements his doctrine of obsolescence, perhaps that the community is not quite ready to accept.
® We tested conventionalism against two perspectives on our practice: in (cross-section, as an
account of what particular judges do about particular cases, and over time, as a story about how
legal culture develops and changes as a whole. Conventionalism failed from the latter
perspective.
® Conventionalism also failed on the first perspective. It could not explain the most prominent
feature of adjudication in hard cases
® A pragmatist judge will find room in his working theory of as-if legal rights for some doctrine
of precedent.
® So, a pragmatist has no direct reason to strain to discover the "true" ground of that decision by
attempting to read the minds of the judges who decided it or by any other process of divination.
® Once again, pragmatism can be defended as providing a good fit with what judges actually do
and say in hard cases only if we assume that a pragmatist would have noble-lie reasons for
constructing and deferring to the best account of the principle underlying past cases in these
situations. Once again, this assumption is very implausible
® So, pragmatism can be rescued as a good explanation for our cross-section picture of
adjudication only by procrustean machinery that seems wildly inappropriate
® Pragmatism requires epicycles to survive as an eligible interpretation of our own practice, and
these epicycles can be tolerated only if pragmatism is so powerful along the second dimension
of legal interpretation, so attractive as a political justification for state coercion, that it merits
heroic life support
® Pragmatism is a sceptical conception of law because it rejects genuine, nonstrategic legal rights.
o It does not reject morality or even moral and political rights.
o It says that judges should follow whichever method of deciding cases will produce what
they believe to be the best community for the future, and though some pragmatic
lawyers would think this means a richer or happier or more powerful community, others
would choose a community with fewer incidents of injustice, with a better cultural
tradition and what is called a higher quality of life.
o Pragmatism does not rule out any theory about what makes a community better. But it
does not take legal rights seriously.
o It rejects what other conceptions of law accept: that people can have distinctly legal
rights as trumps over what would otherwise be the best future properly understood.
o According to pragmatism what we call legal rights are only the servants of the best
future: they are instruments we construct for that purpose and have no independent
force or ground.
® It takes pragmatism to be the content of a vast, overarching convention that judges should
decide cases in the pragmatist way.
® The pragmatist may say: judges decide on pragmatic grounds all the time, and the people do
not revolt or call for impeachment. That begs two questions.
o First, it assumes that pragmatism provides the best explanation of how judges decide
cases.
o Second, it assumes that the community believes and accepts the pragmatist explanation
of how judges decide cases, and that assumption seems just wrong
® So, if we want to support pragmatism on the second, political dimension, we must accept and
then exploit its central feature, its skepticism about legal rights.
® The fact that a true pragmatist rejects the idea of legal rights is not a decisive argument against
that conception. For it is not self- evident that the idea of legal rights is attractive.
® On the contrary, it is quite easy to make that idea seem foolish. The pragmatist will pay
whatever attention to the past is required by good strategy.
® He denies that the decision in McLoughlin should turn on whether any distinction in principle
can be found between the case of emotional injury suffered at the scene of an accident and the
same kind of injury suffered later
® He acknowledges that if he finds against Mrs. McLoughlin the law of emotional injury will
then be incoherent in principle. But he counts that no disadvantage
® But he may not have the power to overrule the precedents; in any case, reasons of strategy argue
against this. So, he does the best he can to limit the damage done by the past, in efficiency or
justice, by deciding against Mrs. McLoughlin; if we object, we seem to have succumbed to a
fetishism of doctrinal elegance, slavery to coherence for its own sake.
® Pragmatism claims to risk error at least about the right issue. If judicial divisions and
controversial judgments are in any case inevitable, the pragmatist asks
® This ability is an important part of our more general ability to treat others with respect, and it
is therefore a prerequisite of civilization.
® The integrity of a community's conception of justice demands that the moral principles
necessary to justify the sub- stance of its legislature's decisions be recognized in the rest of the
law.
® The first is the principle of integrity in legislation, which asks those who create law by
legislation to keep that law coherent in principle. The second is the principle of integrity in
adjudication: it asks those responsible for deciding what the law is to see and enforce it as
coherent in that way. The second principle explains how and why the past must be allowed
some special power of its own in court, contrary to the pragmatist's claim that it must not
® It supposes that the community as a whole can be committed to principles of fairness or justice
or procedural due process in some way analogous to the way particular people can be committed
to convictions or ideals or projects, and this will strike many people as bad meta- physics.
® For when I speak of the community being faithful to its own principles I do not mean its
conventional or popular morality, the beliefs and convictions of most citizens. I mean that the
community has its own principles it can itself honor or dishonor, that it can act in good or bad
faith, with integrity or hypocritically, just as people can.
® But this personification would be idle; it played no role in our argument and only decorated
our conclusions. If, on the other hand, we reached the same conclusion through the second
method, which begins by considering the responsibility of the institution, then the
personification would have been not idle but working.
 ® Indeed through the second method (but not the first) we might come to some decision about the
responsibilities of the group or institution while still in doubt (or disagreeing among ourselves)
about the consequent liabilities or responsibilities of the relevant individuals. The
personification furnishes not only a necessary step on the way to judgments about particular
people, but a plateau we can occupy to consider these judgments
® Consider the phenomenon of communal electoral responsibility. At the height of the Watergate
scandal bumper stickers appeared that read, "Don't blame me; I'm from Massachusetts.
® We allow officials acting in their official capacity no such area at all. They must, we say, treat
all members of their community as equals, and the individual's normal latitude for self-
preference is called corruption in their case. We can- not establish this special responsibility of
officials merely by applying our ordinary convictions about individual responsibility to the
circumstances of their case. Some officials have very great power.
® These various examples of working personification of the community fit together as partners
in a general system of thought

Anton Scalia and Stephen Breyer Debate the Constitution

A significant point of debate within the American legal system is what type of jurisprudence approach
will bring about a fair and just interpretation of the law. This debate over the proper legal approaches
has led to many controversial and closely divided Supreme Court decisions in the US and continues to
polarize the current justices in terms of ideological views. Two Supreme Court members who had
conflicting views regarding what they feel is the ideal legal approach for the US are Stephen Breyer
and the Antonin Scalia. Justice Breyer is generally aligned with the liberal faction of the Court, whereas
Justice Scalia was largely considered to be the ideological voice of the conservative side of the Court.
To further explain their differences in legal approach, Justice Scalia and Justice Breyer participated in
a forum sponsored by the Federalist Society and the American Constitutional Society in 2006 in which
they discussed their respective approaches to legal decision-making.

The first part of the discussion centered on the views of both Stephen Breyer and Antonin Scalia
regarding what they feel is the ideal role of a judge. Justice Breyer stated that the proper task of a
Supreme Court member is to not only apply the law but also to recognize that the main purpose of the
law is to bring about justice. The concept of justice, according to Justice Breyer, is an inherent human
desire and that applying the law in a way to maximize the pursuit of justice is the primary goal of all
judges. Additionally, Justice Breyer also stated that judges do not seek to achieve justice through simply
looking for the better result in each case, but through applying the law in every case, as individuals
believe that is the most effective way to bring about justice under the law.

Justice Stephen Breyer then went on to discuss some of the challenges that the Supreme Court faces
when deciding on specific legal issues. Justice Breyer pointed out that while the Supreme Court rules
unanimously on a sizeable percentage of cases, the cases that have led to divisions on the Supreme
Court were the ones that deal with statutory or constitutional language that is open to interpretation. In
cases dealing with statutes and constitutional language that is open to interpretation, Justice Breyer
tends to rule in such a way that maximizes the rights of liberty and justice under the law. Justice Breyer
dealt with this issue in a case dealing with the due process rights of an individual who claimed to have
been wrongly convicted of murder. When discussing the case, Justice Breyer stated that because of the
statute in question having vague language, he ruled in a way that would serve to keep open the door to
the rights of due process for individuals who may have been wrongly convicted of a crime.
In contrast to Justice Stephen Breyer, Justice Antonin Scalia expressed a contrary view regarding the
question of what the proper role of a judge is when determining a case. As opposed to viewing the role
of a judge as to provide for justice and equality under the law, Justice Scalia feels that the ideal role of
a judge is to interpret the law as fairly and closely to the original intent of the author of the law as
possible. Additionally, Justice Scalia also stated that an ideal judge would not let their judgment
influence their decision regarding a particular case. Scalia holds this belief because following such an
approach would potentially lead to unconstitutional and inconsistent results that would serve to prevent
a fair interpretation of the law.

Justice Antonin Scalia, noting that this approach is not without its flaws, pointed to an example of a
case in which he had to rule on in a certain way which produced a result contrary to his personal opinion
due to his belief that the primary role of a judge is to interpret the law. The case in question dealt with
the adoption provision in the Indian Child Welfare Act. According to Scalia, the main issue in the case
was whether or not a Native American child had to return to his tribe if the tribe council said so despite
living with a foster family for several years. Justice Scalia ruled in favor of the tribal council, citing the
statutory language. Although Justice Scalia believed that the child’s parents should have decided if their
child were to remain with them, he ruled based on the fact that the original intent of the statute required
that a member of a Native American tribe could not be adopted by anyone outside of a tribe without the
explicit permission of the tribal council.

Justices Stephen Breyer and Antonin Scalia next discussed what they feel are the proper tools used by
judges to interpret legislative texts, in particular, the effectiveness of looking at the overall purpose of
the statute, and the consequences that a relevant to the statute at issue. Justice Breyer expressed support
for using the purpose and consequence approaches in legal analysis for several reasons. The main reason
why Justice Breyer supports utilizing both tools is that he feels that they are likely to keep a judge in
touch with the legislature in statutory cases, which, is in turn, in touch with the American people and
their desire for both justices under the law and the democratic rule of law. Addressing the question of
whether focusing on the purpose and consequence of a statute or piece of legislation will make a judicial
decision more subjective, Justice Breyer stated that a judge can write down their legal reasoning and
fully explain to the reader in their court opinion the steps that led to their decision in a case.

In contrast to Justice Stephen Breyer, Justice Antonin Scalia expressed a different view regarding
looking at statutory and constitutional cases under the purpose and consequence lens. The main problem
with looking at the purpose and consequences in statutory and constitutional cases, according to Justice
Scalia, is that they invite subjective judgment on the part of a judge. Justice Scalia stated that to decide
the purpose of a statute, it depends on what level of generality a judge looks at it. Scalia further argued
that considering the purpose of a statute leads to the question of whether the limitations of the statute
should be applied and if the limitations are a part of the inherent nature of the statute. According to
Justice Scalia, any limitations are a part of the inherent nature of the statute. To consider the purpose of
a statute, according to Justice Scalia, both asks the question and assumes that limitations in a statute
were not intended because they would limit the purpose of the statute.

Regarding the question of whether a judge should consider the consequences of a statute or law, Justice
Antonin Scalia feels that a full consideration of the consequences will serve to reduce the objectivity of
the judiciary. When it comes to considering consequences, Justice Scalia feels there is an open question
as to how a judge determines what exactly makes a legal consequence good or bad in nature. This
situation, according to Justice Scalia, could lead to a situation where a judge who likes the consequences
of a particular rule of law will interpret a case one way, and a judge who does not like the consequences
will interpret the case in another, completely different way. Following this logic, Justice Scalia believes
this approach will lend itself to subjectivity, which in his mind, is not the proper role of a judge.

Justices Stephen Breyer and Antonin Scalia next addressed the question of whether they believe in the
idea that the judges should change their interpretation of the US Constitution over time as society
changes. Justice Scalia expressed reluctance to endorse the idea of a “living constitution.” Justice Scalia
pointed out that the issue with the idea is not related to figuring out how the Constitution applies to
contemporary society, but with taking preexisting realities present during the time in which the
Constitution was initially written and attempting to alter the original intent of the Framers to reflect
contemporary society. Justice Scalia cites to contemporary policy and judicial debates regarding topics
such as abortion rights, the death penalty, and same-sex marriage. Justice Scalia mentions that all three
of these concepts existed at the time the Constitution was adopted and that no person believed at the
time that they should have been explicitly referenced in the Constitution. Justice Scalia states that people
now believe that either allowing or not allowing these things is not in accord with the Constitution.
Because these three social issues are not explicitly referenced in the Constitution, Scalia feels that the
onus of responsibility to alter the Constitution to either allow or disallow them lays on the part of the
American people as opposed to unelected judges. Giving the American people the responsibility to put
forward changes in the Constitution, according to Scalia, also serves as a check on unrestrained judicial
power and further promotes democracy and a republican form of government.

In contrast to Justice Antonin Scalia, Justice Stephen Breyer expressed a degree of support for the notion
of a “living constitution.” The main part of Justice Breyer’s argument is that because the nature and
context of American society at the time the Constitution was written was dramatically different from
today, the only way to accurately apply the Constitution today is to adapt it based on changing societal
circumstances. As an example to illustrate how society changed since the ratification of the
Constitution, Justice Breyer cites the Commerce Clause and the First Amendment. For example, at the
time the Constitution was written, Framers could not have envisioned societal changes such as the
advent of mass communication tools, advances in transportation methods, and the rise in globalization
and how these advances would have impacted future interpretations of the Commerce Clause and the
First Amendment. Despite the fact that the Framers could not have envisioned the societal changes
when writing these provisions, Justice Breyer believes that there is an innate value written into these
constitutional provisions that remains relevant to contemporary legal issues.

Another discussion between Justices Antonin Scalia and Stephen Breyer centered around their views
regarding the use of the historical approach in constitutional interpretation. Justice Breyer generally
expressed a mixed opinion regarding the historical approach. While the historical approach, according
to Justice Breyer, does not take into account individual changes in values since the US Constitution was
written, it can sometimes be useful in helping judges settling a complex case with little modern
precedent. Justice Breyer also stated that the historical approach was useful in informing his decision
in a case dealing with the question of whether a school voucher program violated the Establishment
Clause because the voucher program allowed parents to send their children to religious schools. Justice
Scalia similarly agreed that the historical approach has its share of merits in enabling judges to
determine case. For example, Justice Scalia stated that many current judges tend to ignore the original
meaning of the Constitution and statutes. This lack of understanding the original meaning of the
Constitution and statues, according to Justice Scalia, leads to inaccurate opinions not in accord with the
original intent of the Constitution.
When the question was raised if either of the Justices considered themselves to be “activist judges,”
both Antonin Scalia and Stephen Breyer agreed that the term was useless in determining how a judge
rules on certain legal issues. Justices Breyer and Scalia stated that the term activist judge is used as an
insult describing someone who is substituting their own opinion for what the Constitution requires and
takes away from the role of a judge to apply different results to a Constitutional issue in order to get the
result that is most in accord with the main goals of the American legal system. Additionally, Justice
Breyer mentions that many cases that were seen as “activist” during the time in which they were decided
are now considered to be the correct application of the law. As an example, Justice Breyer cites the
Brown v. Board of Education decision as a case originally considered to be activist in nature, but is now
considered to be the correct application of the Equal Protection Clause

Regarding the need to decide cases in a narrow, unanimous manner, Justice Antonin Scalia rejected this
approach, citing his belief that narrow decisions have become somewhat commonplace since the
appointment of John Roberts as Chief Justice. Justice Scalia expressed opposition to this approach
because it would lead to less firm opinions that could potentially be overturned by future cases.
Additionally, Justice Scalia stated that these narrow opinions would be of little use to the legal
profession in the future. Justice Stephen Breyer expressed agreement with Justice Scalia, stating that
judges want to have unanimous opinions for the sake of having the Court appear to be in agreement.
The only exception to this rule, according to Justice Breyer, would be in cases dealing with
technological issues. According to Justice Breyer, a broader decision regarding a technological issue
could make some rule of law that could potentially become either obstacle to one party in a case, or
ultimately be beneficial to the other party of a case. This scenario, Justice Breyer states, would go
against the belief that the main purpose of the law is to promote the equal distribution of justice.

The legal theory most in alignment with Justice Antonin Scalia’s views is Originalism. Originalism is
a legal approach in which a judge interprets the Constitution in line with what it meant at the time of its
drafting. There are several benefits to this approach to legal reasoning, according to proponents. The
first reason is that Originalists believe that disregarding the reasoning behind the Framers writing
specific Constitutional provisions would call into question the reasoning behind their drafting the
Constitution. Proponents of Originalism also argue that by scrutinizing of the intent of the Framers,
judges can deduce “constitutional truths” that they can apply to cases, which serves to produce neutral
positions of law and eliminates value-laden decisions, and that the application of Originalist theory in
judicial decisions fosters stability of law in an increasingly changing society (Epstein and Walker, 24-
26).

Justice Antonin Scalia can be considered a proponent of Originalist legal theory for several reasons.
The aspect of Justice Scalia’s the judicial philosophy that is aligned with the notion of Originalism is
the fact that he interprets the words of any statute or constitutional provision that is in question and
interprets them based on what they would have meant at the time the Constitution was originally written.
Additionally, Justice Scalia also feels that by focusing on the reasoning why the Framers put certain
provisions in the Constitution or federal statues, a judge cannot objectively determine the applicable
rule of law in a particular case and will ultimately come to a legal conclusion that is not in accord with
the original intent of the Framers of the Constitution.

In contrast to the theory of Originalism, the legal approach that Justice Stephen Breyer follows is
Pragmatism. In its simplest form, Pragmatism is the belief that the Supreme Court does not always have
to feel bound to follow past precedents. Some of the reasons why a court may not appear to be bound
by previous rulings are due to changed circumstances that make the prior rule of law inconsistent, a
ruling that was made in error, or changes in the interpretation of Constitutional provisions or statute at
other court levels. Additionally, Pragmatic legal theory may require judges to select constitutional
interpretations that have the most ideal consequences based on the legal issue in play in the case they
are working with (Epstein and Walker, 31).

Justice Stephen Breyer can be characterized as a proponent of legal Pragmatism. The main reason why
Justice Breyer can be identified with legal Pragmatism is that in his decisions on numerous legal issues,
he tends to focus on the question of what application of the law will result in the most ideal
consequences in the case and promote the essential values of the American legal system. Additionally,
Justice Breyer follows the belief that because society changes over time, prior legal precedent may not
be applicable in the present day and may serve as a hindrance to fulfilling the goals of the American
legal system. This belief is in accord with the idea promoted by Pragmatism that courts should not be
bound by inconsistent rulings that came about due to societal changes.

In conclusion, the issues of constitutional and statutory interpretation continue to remain a much-
debated issue among legal scholars and judges alike. Two Supreme Court members with divergent
views on these issues were Stephen Breyer and Antonin Scalia. Justice Breyer generally aligned with
the theory of legal Pragmatism, whereas Justice Scalia identified as an Originalist. Their different views
on legal philosophy led to numerous closely divided decisions and have defined the American legal
system for many years to come. Despite holding different philosophical views, Justices Scalia and
Breyer both believed that the historical approach in determining case outcomes is beneficial in certain
respects. Additionally, Justice Breyer and Justice Scalia concluded that broad Supreme Court decisions
are beneficial because they result in firmer opinions on legal issues and that the application of their
respective approaches would serve to promote democracy and safeguard the American system of
government from abuses of power by either branch of government. Moreover, both Justice Scalia and
Breyer expressed confidence in the American legal system and that the ideas of justice, equality, and
fairness under the law will continue to endure.
 WEEKS 2-3: The Presuppositions and Frameworks of Interpretation
Paul Armstrong: The Conflict of Interpretations and the Limits of Pluralism

® The text explores the debate in literary theory over whether interpretation is limitless or if there is
a singular textual meaning that can be discovered. Those who argue for limitless interpretation
believe that any work can have innumerable readings, while those who believe in a singular
meaning argue that criteria for validity exist and regulate claims to legitimacy.

® The radical relativist view asserts that all interpretations are misinterpretations, while the monist
view supports its claim with appeals to the author's intention, norms in the work itself, or common
sense. The debate between these two positions is important because it raises questions about the
nature of truth in interpretation. He refers to radical relativism where they believe that there is no
absolute truth and truth only exists in a certain context. The theory denies objective truth and
everything has a degree of relativism. They say when you claim something as a fact, its meaning
changes based on relative ideas or relative truth. They assume that all works have several
interpretations and all interpretations are misrepresentations. Monists say there is only one correct
reading of a text and absolute truth. No evolution of law if we think there is only one correct
interpretation. It is impractical to have only one interpretation. There can never be one interpretation
that holds true for all times.

® The author argues that both monists and radical relativists have unacceptable positions when it
comes to literary criticism. Instead, contemporary criticism needs a theory of limited pluralism to
explain the paradox of legitimate disagreements about literary works' meanings while still being
able to say that some readings are wrong.

® The theory of limited pluralism should explain why permissible readings may differ and show that
criteria for validity still act as constraints on acceptability and regulate claims to legitimacy even
when unresolvable conflicts divide interpretations. Armstrong asks if it is possible for permissible
readings to disagree and trying to see if the gap can be bridged between two disagreements.
Armstrong says precedents should be looked at and past practices should be looked at. Weak
disagreement can be reconciled but strong disagreement cannot. There is no need to reconcile right
away when there are disagreements but it should be done sometime in the future. Ultimately, the
author suggests a middle way between anarchists and absolutists.

® The text discusses the role of belief in understanding and the hermeneutic circle, which states
that interpretation is circular and requires acts of faith to compose parts into a whole. Interpretation
involves guessing and trial and error, and no theory of interpretation can guarantee persuasive,
effective readings. The text emphasizes that interpretation is not a machine for cranking out
readings and that different texts demand different hypotheses. The hermeneutic circle has three
important implications between theory and practice:
1. First, because interpretation always requires guesswork, no rules can guarantee successful
hypotheses in advance. Even the most sophisticated theorists and the most practised critics have
stared blankly at a page, waiting for its configurations to suggest themselves. Beginning
students may dream of one-day becoming expert enough to comprehend a novel or a poem
automatically without the hesitancy, confusion, and uncertainty of experimenting with guesses-
but the more experienced they become as interpreters, the more they realize that exegesis cannot
escape trial and error.
 2. This observation suggests my second point: a theory of interpretation is not a machine for
cranking out readings. Practitioners of any method must start anew and try out guesses every
time they take up work. Experience teaches because past acts of interpretation pro- vide practice
in guessing. But different texts demand different hypotheses.
3. My third point, consequently, is that no theory of interpretation can guarantee persuasive,
effective readings. Any method, no matter how promising, can lead to more or less convincing
interpretations.

® Heidegger redefined the hermeneutic circle to emphasize its inherent temporality. He argued
that understanding requires expectations, and we can only interpret something if we have already
grasped it through a "foreseeing" that projects and delimits a range of meanings it might have. Our
interpretations turn these possibilities into actualities. To interpret is to lay out an anticipatory
understanding that has cleared the way for fuller, more explicit, and more refined acts of construal.
Heidegger's point is that our preliminary sense of the whole gives us a particular set of expectations
that then direct our attention, and the subsequent explication of details checks, modifies, and fills
in. To project a hypothesis is to anticipate a possible future.

® The text discusses Heidegger's concept of anticipatory understanding and how it applies to
interpreting literature. It argues that every interpretive approach has its own anticipatory
understanding of literature, which reflects its fundamental presuppositions. For example,
phenomenology sees human beings as conscious entities directed towards objects, and so it
interprets works as constructs of consciousness that display a world. Structuralism, on the other
hand, views human beings as governed by a linguistic logic of binary oppositions, and so it
interprets myths and other texts as logical models that attempt to resolve contradictions. The text
concludes that each method of interpretation has a different metaphysics, which defines its position
in the hermeneutic field. To embrace a type of interpretation is to make a leap of faith by accepting
one set of presuppositions and rejecting others.

® Conflicting modes of interpretation can be classified by what they aim at and how they take their
aim. Archaeological interpretation is a hermeneutics of unmasking, while teleological approaches
aim to find meaning beyond the text. The appropriate interpretive attitude varies depending on the
approach. The text discusses the differences between various hermeneutic approaches to
interpretation, particularly in terms of the arche and telos they seek to uncover. Suspicious
interpretation, exemplified by Nietzsche, Freud, and Marx, aims to reveal the hidden motivations
and power structures behind texts and institutions. Phenomenology and New Criticism, on the other
hand, differ in their understanding of the literary work as either a self-sufficient structure of norms
or a meeting of subjectivities. The phenomenologist sees the work as a product of the reader's
consciousness bringing authorial acts to life, while the New Critic sees it as an objective structure
that cannot be fully realized through interpretation. Overall, the text highlights the diverse
approaches to interpretation and the different ways in which they seek to understand the meaning
and purpose of literary works.

® The text discusses how "strong" disagreements between different approaches to interpreting
literature ultimately stem from differences in basic presuppositions underlying the opposing
methods. The example given is the difference between structuralism and Marxism in their approach
to Greek literature, with Levi-Strauss viewing Oedipus as an attempt to resolve a logical
contradiction and Marx regarding classical mythology as an effort to establish imaginary mastery
 over nature. The fundamental conflict of belief between these two approaches is that Marx believes
human nature changes with daily practice over history and across cultures, while structuralists
assume humans are linguistic animals defined by their unchanging capacity to order the universe
by binary oppositions. Levi-Strauss believes that all versions of the Oedipus story are variants of
the same mythic structure because they all center on the same contradiction.

® The text argues that an eclectic approach to hermeneutic conflict can introduce self-
contradictions into one's assumptions. This is because some presuppositions exclude each other,
which can lead to weak and watered-down criticism. The most powerful approaches to
interpretation often owe their depth of insight to the radical one-sidedness of their beliefs. The
potential for reductionism in psychoanalytic criticism is described, but it is also noted that
psychoanalysis cannot be reproached for its narrowness, as it is its raison d'etre. Overall, the text
highlights the risks and benefits of borrowing from different methods and the importance of
maintaining a consistent and rigorous approach to interpretation.

® The text discusses the work of Ricoeur, a contemporary theorist of hermeneutics, who attempts to
reconcile opposing systems of interpretation by justifying the theory behind each method based on
the particular area of human experience it focuses on. Ricoeur believes that each hermeneutics
discovers the aspect of existence that justifies it as a method and that opposing methods can be
reconciled by showing how the different modes of existence, they focus on belong to a unified
image of human being. In other words, Ricoeur seeks to achieve a true arbitration among absolutist
claims of opposing systems of interpretation by resolving their theories into a coherent figure of the
being that we ourselves are. The text discusses the problems with Ricoeur's project of reconciliation
through interpretation. Theories of interpretation have conflicting beliefs about the defining aspect
of human beings and their existence. This leads to irreconcilable disagreements among different
hermeneutics. Even if a method elevates one aspect of existence to a privileged status, its
assumptions may have implications for another area that are incompatible with another
hermeneutic.

® The text argues that the idea that different interpretations of a literary text must have some degree
of identity because they derive from the same text is flawed. The author argues that a literary work
is not an independent object that remains the same regardless of how it is construed, but rather exists
only in and through its "concretizations". Different interpretations concretize the work differently,
and its identity is the synthesis of changing construal's across history and over the field of
conflicting modes of understanding.

® The author also argues that the metaphor of a shared "core" of a text is unfortunate because it implies
an autonomous essence of textual identity. Instead, to exchange views, we only need points of
comparison and contrast, of overlap and divergence, such as the name of the text, substantial
agreement about the register of characters, the basic elements of the plot, and the language. The
author concludes that there are usually areas of agreement between even the most widely divergent
interpretations, but these only establish the possibility of discussion and are not conclusive evidence
of the text's autonomous essence.

® The text discusses the challenge of identifying the being of art due to the possibility of multiple
interpretations, which is considered a distinguishing feature of art. However, interpretive
disagreement is not unique to aesthetics, and disciplines can be classified based on whether they
 tend towards monism or pluralism. While some fields, such as the natural sciences, have a high
degree of unanimity, other disciplines, including psychology, economics, philosophy, and literary
studies, have fundamental differences of interpretation due to basic disagreements about
assumptions and explanatory goals. The inability to reconcile opposing interpretations is a problem
with broader epistemological and institutional horizons, affecting both professional and
pedagogical life in the humanities.

® The test for validity:

A. Inclusiveness, where a hypothesis becomes more secure as it can encompass the most elements
in the configuration it projects. Looking at entire text. As a judge you should look at everything.
It’s crucial to look at why the texts exit in the first place.
1. The interpretive act may be "irrational" in the sense that it requires inspired guessing, but
it is "rational" in the sense that our hypotheses must be able to withstand self-conscious
examination.
2. The author concludes that literary criticism is inherently pluralistic, but it is a rational
enterprise with standards and restrictions built into its proceedings, not a field of anarchistic
free play where anything goes.
3. While an interpretation that is not inclusive is illegitimate, an inclusive reading is not
necessarily the only correct one.
4. Different interpretive methods based on different presuppositions can pass the test of
inclusiveness with equal success.
5. The author cites the views of E. D. Hirsch and Stanley Fish, who both agree that
inclusiveness cannot conclusively settle all conflicts between interpretations or put an end
to "strong" disagreement. However, the test of inclusiveness is useful for excluding bad
guesses.
i. Fish claims that any interpretive framework can find a way of accounting for an
apparent anomaly.
ii. The author argues that Fish's boast shows that the test of inclusiveness is close to
vicious circularity, but inclusiveness is still useful for excluding bad guesses.
B. The article discusses the limitations of using intersubjectivity as a means of validating literary
interpretation. – Means communal agreement. Individual facts and circumstances have to be
looked at along with communal values. We could be socially and legally stuck if we’re always
thinking about what is socially acceptable. Old rituals, etc., cannot be applied to new
circumstances. As Peirce points out, "Unless we make ourselves hermits, we shall necessarily
influence each other's opinions; so that the problem becomes how to fix belief, not in the
individual merely, but in the community" (pg 347).
a. The weakness in the test of communal agreement hinges on the need to persuade others
to assent to our convictions about the meaning of a text or about the best way to
understand literature. Intersubjective validation necessarily entails the use of rhetoric.
If the ability to win assent suggests that a belief is legitimate, then complete and
universal agreement should be the ultimate indication that an interpretation is correct.
This reasoning, in any case, underlies Spitzer's contention that the proper goal of
literary criticism is a consensus omnium-a state of perfect intersubjectivity, with all
minds at one about the meaning of a work (38).
b. This ideal is not finally attainable, however, because conflict between irreconcilable
methods prevents unanimity. "Strong" disagreement about the fundamental
presuppositions that should guide understanding stands in the way of universal
consensus. Although a majority vote by itself does not decisively prove or disprove the
 reasonableness of a presupposition, the ability of a set of assumptions to rally a
community of believers to its side is a test of its probable worth. Conversely,
assumptions that cannot win endorsement probably deserve to die.
1. While communal agreement can make an interpretation more credible, it is not
foolproof as it relies on the use of rhetoric which can be abused.
2. The article also highlights the distinction between genuine convincing and
overpowering tactics in communal agreement.
3. The ideal goal of literary criticism is a consensus omnium, but this is not achievable
due to irreconcilable differences in fundamental presuppositions.
4. Overall, communal agreement is a useful tool, but it should not be the sole means
of validating literary interpretation.
5. The text discusses the test of intersubjective agreement and how it can be
complicated by conflicting opinions.
C. The text discusses the third test of efficacy to evaluate a hypothesis or presupposition on
pragmatic grounds to see if it can lead to new discoveries and continued comprehension. The
test of efficacy introduces something new and important because it extends to the most
fundamental presuppositions of an interpretive method. The presuppositions on which any
hermeneutic takes its stand are not immune from practical testing. They must continually justify
themselves by their efficacy. If they repeatedly fail to lead to persuasive, inclusive readings, we
may conclude that the problem lies not with the interpreters' limited skills but with the
assumption themselves. The importance of holding ourselves open to experiences that may
prove our presuppositions ineffective leads Peirce to warn against the premature, dogmatic
fixation of belief. Whatever interpretation you give should be based on pragmatism and
practicability. Is it what you were trying to achieve? It should be persuasive and not give a
general reading. We should doubt the efficacy of a hypothesis if repeated anomalies interrupt
the progress of interpretation, since such blockages suggest that our guess is not inclusive. They
must continually justify themselves by their efficacy. If they repeatedly fail to lead to
persuasive, inclusive readings, we may conclude that the problem lies not with the interpreters'
limited skills but with the assumption themselves.

® All three criteria must be looked at while looking at validity of interpretation. He says there is a
reason why we have multiple judicial benches and appellate authorities. There are limits to each
test and no test is the “right one”.

® In this text, Peirce warns against the dogmatic fixation of belief and describes three roads to
dogmatism that should be avoided.
1. The first is the method of tenacity - Interpreter’s own stubbornness in their interpretation. It
disregards dissent from the community and blinds itself to potentially falsifying anomalies. But
Peirce's warning must be modified, for unless we hold to our beliefs with a certain amount of
tenacity we may abandon a promising hypothesis prematurely, before giving it a fair chance by
struggling to solve the problems it raises.
2. The second is the method of authority, which settles opinion by appealing to institutional
sanction and risks a tyrannical communal solipsism that denies opposing views. However,
authority can have benefits, as some views are legitimately presumed to have a greater claim to
validity due to the past performance or specialized training of those who hold them. There
should be balance between tenacity and certain amount of surrender to authority. The danger
here is a tyrannical communal solipsism that makes itself immune to the challenge of dissent
 and denies opposing views an unbiased hearing. But once again authority has benefits that
Peirce overlooks. In the business of interpretation, not all practitioners are equal. Teachers, for
example, who exercise the authority of grading student papers, have successfully passed
through apprenticeships (taking oral exams, writing dissertations) that have judged them
qualified to receive the rights and powers of professional responsibility. This claim to authority
must continue to prove itself in the classroom and in various professional forums or else
students and colleagues may deny it.
3. The third method is the method of intuition, which relies on personal insight and risks being
based on personal biases and idiosyncrasies. Peirce suggests that interpretation requires a
delicate balancing act between excessive stubbornness and overhasty capitulation. What is the
rationale behind giving an interpretation. In deciding where to place our allegiances as critics,
we must choose among a variety of equally defensible alternatives. Clearheaded thinking or an
appeal to common experience will not in itself show us the one right road to take. Although the
presuppositions and the results of any method must prove their worth in the ways I have
described, the choice of a hermeneutic standpoint is inherently somewhat arbitrary. A different
decision can always be justified with equal cogency.

® The article discusses the relationship between institutional authority and intellectual
justification in the context of scientific inquiry. The author argues that while institutional sanction
may discourage innovative ideas, it also prevents the rapid overthrow of established methods that
have proven effective. The author also critiques Peirce's strictures against the a priori method,
arguing that while it has its limitations, there is something inherently a priori about accepting any
set of presuppositions as a starting point for inquiry. Ultimately, the choice of a hermeneutic
standpoint is somewhat arbitrary, and different decisions can be equally justified.

® The text argues that choosing a hermeneutic standpoint is significant as it determines how we
conduct ourselves in interpreting texts. The choice of interpretive norm is not based on the nature
of the text but is an ethical decision. The author notes that strong ethical disputes arise when
reaching fundamental principles involved in hermeneutic disagreements. Interpreters base their
choice of values on an "ought" rather than an "is", and every hermeneutic standpoint has an a priori
foundation because it rests on an ethical decision about what it is better to believe. Ultimately, the
choice of hermeneutic standpoint is an ethical decision about what it is better to believe about the
status of literary works and the human world.

® The text argues that literary criticism is a rational enterprise because it can be analyzed and debated
based on the merits and risks of its hermeneutic "wager." Critics may have preferences for certain
insights and tolerate areas of blindness, but their choices are not unreasoned.

® Stanley Fish's claim that "one man's reason is another man's irrelevance" is countered by the idea
that critics are accountable to the community for the consequences of their commitments. The
beliefs that constitute the theory implicit in any method may be ethical a prioris, but they must still
attempt to justify themselves through public debate and philosophical reflection.

® Critics can and do argue about different theories, but the question of what we "ought" to believe
can only be decided by discussion and argument within the community. While such exchanges do
not lead to agreement about a single, indubitable truth, they do introduce testing and evaluation,
 thereby rescuing the field from the anarchy of total relativism. The text concludes that while literary
criticism is a pluralistic universe, there are limits to its pluralism.

Arie Rosen: Statutory Interpretation and the Many Virtues of Legislation

Introduction
This section discusses the normative question of statutory interpretation and how it is complex and
multifaceted, requiring consideration of subsidiary matters such as communication, political authority,
utility, predictability, and justice.
The article focuses on how respect and deference to legislative decisions affect the way they are
interpreted, and distinguishes between two visions of legislation and its virtue: one based on correctness
and the other on correctness-independent values of political morality. The author argues that each vision
imposes different duties on interpreters of statutes, with correctness-based understandings prescribing
correctness-oriented interpretive techniques and correctness-independent understandings casting
interpretation as a zero-sum game.
Different interpretive approaches can be classified based on their position on the scope and mode of
application of legislative decisions, with textualism and intentionalism prescribing a limit to legitimate
statutory interpretation based on the particular content of the legislative decision, while correctness-
oriented approaches encourage interpreters to go beyond the statutory text and legislative intent to attain
substantively desirable results in concrete cases.
Rosen distinguishes between two visions of legislation and its virtue, each leading to a different
hermeneutical position :
i. Correctness Oriented : Sees the value of legislation in its ability to generate good laws for our
community; laws whose content corresponds to some standard of correctness, or is more likely
to correspond to such a standard than decisions of other institutions or individuals.
ii. Correctness independent : The value of legislation lies elsewhere, in correctness-independent
values of political morality such as procedural fairness, political equality and self-government.
Correctness-based understandings of the value of legislation prescribe correctness-oriented interpretive
techniques, which cut through the particular legislative decision and seek the correctness that statutes
embody and approximate. On the other hand, correctness-independent understandings of the value of
legislation cast interpretation as a zero-sum game in which any interpretive deviation from the particular
decision of the legislature diminishes its legitimate control over the content of statutory law.

Correctness
This section argues in favor of a deontic taxonomy for interpreting legislation, which shows how major
positions such as textualism, intentionalism, and purposivism can be seen as showing proper respect to
legislation. The fourth part of the article considers the practical question of what mode of statutory
interpretation is appropriate to our circumstances and argues that our doctrine of statutory interpretation
should not employ overly unifying accounts of legislation.
Instead, interpreters should consider the particular circumstances of each statute's enactment and the
actual value the particular statute holds for the political community. This means that our doctrine of
statutory interpretation should be informed by what really goes on in legislative assemblies and that our
choice of interpretive approach should not be based on wholesale accounts of the value of legislation,
but on an individual evaluation of statutes and the circumstances of their enactment.
The Scope of Legislative Decisions: Text or Intention?
This section explores the differences between textualism and intentionalism in statutory interpretation.

Internationalists - Argue that the goal of interpretation should be to retrieve the legislative intent.
Reading statutes as the expression of a wider legislative intent employs a different assumption regarding
the nature of legislative practices. Argue that the retrieval of legislative intent—the resolution and desire
behind the statutory text—should be the goal of our interpretive practices. Interpreters cannot be said
to properly respect legislative instructions if they claim to interpret statutes in a way that diverges from
the intent of their author. That would simply be making new law under the guise of interpretation, which
would be at odds with our democratic commitments. Intentionalism is a popular approach to statutory
interpretation. The criticism is that there could be a different intent when the law was made but that
could change over time. It is not always possible to find reliable evidence of intent of author. There is
a problem of deciphering obiter of lawmakers. Original intent could be flawed or not relevant today.
They could also be contradictory like how preamble says that “India is secular” but debates propound
that India is run by Hindu values. A case can be made that we no longer require sedition because we
are no longer ruled by Britain as was the original intent when it was made. Original intent of the author
may not always be relevant. Legislative intent could be different from original text of the statute.

Textualists - Believe that the plain meaning of the text is sufficient. The proper identification of the
scope of legislative decisions depends on our understanding of democratic practices of decision making.
Textualist positions assume a narrow legislative agreement in circumstances of conflicting interests.
The author argues that the scope of legislative decisions is not delineated in the same way for all statutes
and that some are best understood as a transactional process, while others are best described as a process
aiming at reasoning and mutual persuasion. Agree with intentionalists that it is the legislative decision
alone that determines the content of statutory law, but they believe that the content of this decision
completely overlaps with the plain meaning of the statutory text. They insist that whatever the
legislature intended to say is found in the plain meaning of the words chosen. Textualists, therefore,
deny that there is any artificial intent transcending the legislated text: they reject the notion that there is
some residual intent, a residual content to the legislative decision, which is not expressed in the plain
meaning of the text.

Mode of Application: Control Maximisation and Aspiration to Correctness

The scope of legislative decisions depends on the nature of legislative practices. Deference to statutes
does not necessarily require strict adherence to the text or intent behind it. There are two modes of
statutory interpretation: control-maximizing and correctness-oriented. Control-maximizing approaches
emphasize strict adherence to legislative decisions, while correctness-oriented approaches are willing
to compromise legislative control over statutory law in favor of an ameliorating interpretation of statutes
according to principles of justice, expedience, or reasonableness. Rosen distinguishes the corrective
approach from control-maximising approaches (like textualism and intentionalism), on the grounds that
corrective approaches operate with the intent to guide proper action in a given context, while control-
maximising approaches operate in a manner that makes people act on the wishes of the legislator
regardless of the appropriateness of those actions in said context. The text, or the intent behind it, limits
the scope of action. The ultimate point of exercising expert authority calls for a correctness-oriented
mode of interpretation, where the goal is to make the best use of directives as guides for proper action.
The overarching goal determines the logic appropriate for their interpretation, which involves
identifying their correctness-based significance and properly applying it to the interpreter's
circumstances, sometimes contrary to the letter of the instructions and even the intent of the author.
Arie Rosen lays the claim that a correctness-oriented mode of interpretation can often be a more
appropriate mode for showing proper respect to legislation (in comparison to literal interpretation). He
describes correctness-oriented approaches as those which are willing to compromise legislative control
over statutory law (i.e. the literal wording of the rule framed by the legislature) and replace it with a
holistic interpretation of statutes – in line with the principles of justice and reasonableness. The
standards of correctness against which interpretation of a statute should be measured are :
1. Rationality - produced in a community where democratic procedures prevail and sift out
misguided views.
2. Public Discourse - forming a means for revealing the common values shared by members of
the community.
3. Material Utility - an interpretation which results in the maximum possible benefit for maximum
possible people.

Gardener Example: An expert gardener has left me in charge of a garden, instructing me to turn on the
sprinklers twice a week during the summer for irrigation. Since I am confident in her superior
knowledge regarding the care of the garden, I have every reason to follow her instructions to the letter.
As it happens, however, on the following week the rain is uncommonly heavy for the season. Although
I trust the instructions I have received and am fully committed to following them, I decide to water the
garden only once that week. There was nothing in the words of the gardener (‘turn on the sprinklers
twice a week’) that warranted my course of action, and we have no reason to think that when she gave
her instructions she intended for me not to water the garden during a rainy week. This might have been
her intention had the contingency occurred to her, but it hadn’t, and therefore this mode of action was
not part of her intent. Expert instructions only partly articulate the reasons underlying them and that the
literal applicability of these directives to future contingencies has its natural limitations.
Acknowledging these limitations invites interpreters to refrain from slavishly following either texts or
intentions and engage in a more open process of reasoning in which the particular facts of the case at
hand, knowledge from other sources, common sense and substantive value considerations inform the
interpretation and application of the instruction. It is the ultimate point of exercising expert authority
that calls for this correctness-oriented mode of interpretation. The point of following expert directives
is not to act according to the wishes of the expert. Rather, the point is to make the best use of these
directives as guides for proper action.
This section discusses the use of correctness-oriented modes of interpretation in statutory interpretation
and the potential objections to such an approach. The author argues that a balanced approach to
correctness-oriented interpretation, which considers the purpose and rationale behind a directive or
statute, can lead to more just and equitable results. The principle of charity in interpretation and
understanding can explain some dimensions of our interpretation of expert directives, but a truer
description of this logic can be found in the work of Hans-Georg Gadamer. The rejection of authorial
intent and original understanding as the ultimate benchmarks of proper interpretation is crucial for
understanding correctness-oriented approaches.
There is a longstanding objection to correctness-oriented modes of interpretation, claiming that they are
in danger of completely undermining authority, replacing the judgement of the author with that of the
interpreter -> might give licence to interpreters to completely disregard the directive in their quest for
correctness. “Under certain assumptions, a correctness-oriented mode of interpretation is called
for not as a licence to disregard an authoritative decision, but as the only mode appropriate for
showing it proper respect.” The overall purpose of our deference to expert authority is to get things
right, and this should ultimately determine the logic that governs our interpretation of their instructions.
Different exercises of authority call for different modes of interpretation on the part of their addressees.
The proper mode of interpretation depends on what sort of authority modern legislative assemblies
exercise.

Ronald Dworkin advocates a correctness-oriented reading of the statutory text in light of moral
principles that show it ‘in the best possible light’. Dworkin explains that past political decisions should
be read in a way that upholds the best moral principle that they can be seen as instantiating.
Even in common judicial practice, it is the ratio legis that commands respect, and not the particular
formulation of the statute.

Correctness in Legislation and its Hermeneutic Consequences

The author argues that while most people interpret expert instructions correctly, they may resist the idea
that modern legislative authority is related to expertise. Therefore, the objection is that we should not
base statutory interpretation on expert instruction. The author agrees with this objection to a large extent
and notes that an interpretive process can only be attributed to the legislative assembly in a
counterfactual sense. The divergence between actual and hypothetical intent is exacerbated under
pluralism. The author cites Scalia and Posner as examples of correctness-oriented approaches.
The author explores the analogy of modern legislation as expertise, which explains the genealogy of
our contemporary interpretive practices. The practices of statutory interpretation, which evolved during
the late Middle Ages and early modernity, took their cue from contemporary political theory, which
saw legal validity as entangled with correctness and propriety.
The author argues that correctness-based understandings of legislation have persisted to varying degrees
in modernity and invites interpretive approaches that are designed to assist statutory law to become
'what it was previously only trying to be' and read it 'in the best possible light'. The author identifies
three standards of correctness that legislation can aspire to: right reason, ethics of the particular
community, and material welfare or utility. The author argues that if we respect legislative decisions,
we should interpret them in a way that leads to moral and reasonable results, in light of societal ethics,
and for the promotion of our welfare and material common good.

Correctness-Independent Values in Politics and in Law

The appropriateness of correctness-based valuations of modern legislation is doubted due to the lack of
agreement on what 'right reason', 'common values' and 'welfare' mean in modern pluralist societies. This
has led to the development of correctness-independent accounts of the value of legislation. There is no
agreement on which standard of correctness should be pursued by legislation.
This section discusses the tension between correctness-based and correctness-independent grounds for
legislative authority in pluralist societies. In such societies, invoking any particular standard of
correctness in the legitimation of legislative decisions raises two problems: it might be in tension with
democratic equality, and it would undermine the de facto authority of legislative mechanisms. This has
led to the development of theories of political legitimacy that do not depend on the correctness of
legislative decisions. Instead, correctness-independent values call upon interpreters to show their
respect for the particular agreement reached in the legislature.
The rise of correctness-independent values in our political morality explains the contemporary
popularity of control-maximizing approaches to statutory interpretation. The key concept is pluralism,
and in such circumstances, correctness-independent understandings of the value of legislation
necessarily cast statutory interpretation as a zero-sum game of control over statutory law between
legislature and interpreter. If we take seriously the values of univocality, self-government, procedural
fairness, and political equality under an assumption of pluralism, then we should refrain from
undermining these values by adopting an approach to statutory interpretation that looks beyond the
particular agreement reached in the legislature.
The Practical Relevance of our Deontic Theory
This section discusses how our understanding of legislative practices should affect our approach to
statutory interpretation. Different interpretations of legislation can lead to different identifications of
the decision made by the legislative assembly. Additionally, different understandings of the value of
legislation prescribe different goals for interpretation.
The practical application of these theoretical conclusions to a doctrine of statutory interpretation is
complicated by the fact that the nature and value of legislative practices are subjects of entrenched
disagreement. However, interpreters should focus on the particular disagreement resolved by the statute
they are interpreting, the procedures observed in its creation, and the actual value it serves in their
political community, rather than on a wholesale account of legislation.

Noting Irregularity in Legislative Practices

Interpreters of legislation should focus on the actual values and legislative practices that were in place
when a particular statute was enacted, rather than what they should be like.
Theories of statutory interpretation have turned to positive political theory to understand legislative
activity, but this has only exposed the complexity of the descriptive questions surrounding legislative
practices.
The behaviour of legislators and their attitudes towards decision making vary considerably, making it
difficult to find a common denominator for the value of all statutes. The challenges posed by irregularity
to theorists of statutory interpretation are different from those posed to political theorists. The
interpreter's attention should be focused on the particular set of factual circumstances surrounding the
interpretation of a particular statute, rather than a single approach for the interpretation of all statutes.
This section argues against a one-size-fits-all approach to statutory interpretation, stating that not all
legislative decisions should be treated the same way. The author suggests that such an approach would
require an assumption that all statutes are the same and deserve equal respect, which is not the case.

Varieties of Disagreement
Legislatures face a variety of disputes and disagreements, which can be of different types and require
different modes of communication. Jürgen Habermas distinguishes between different discourses
appropriate for deliberating different types of controversy or question. Disagreements can be based on
radically different conceptions of the good, the best way to promote economic prosperity, or the most
practical mode for combating carbon emission, among others. In some cases, legislative procedures aim
at revealing shared values, approximating rationality, and discovering the common good. Therefore,
neither a focus on disagreement nor a commitment to pluralism can rule out correctness-based
evaluations of legislative practices. Legislative decisions might be wider than what is expressed in the
plain meaning of the statutory text, and disagreeing parties might be able to come up with a robust plan
transcending the plain meaning of the text. Wholesale accounts of legislative practices are
unsatisfactory as they assume a single mode of legislative deliberation in addressing all issues, whereas
not all statutes are the result of the exact same process and are valuable for the self-same reason.

Other Institutional Considerations

The idea that the mode of statutory interpretation should be determined at the level of the particular
statute may raise concerns about increased uncertainty and the burden on judges. There are also
objections of a principled nature, such as the belief that there is a judicial duty to engage in interpretation
that would yield just results. However, institutional considerations, such as respect for legislation,
judicial duty in developing the law, relative institutional competences, expedience, and certainty, can
potentially pull in different directions. Acknowledging this implies that the ultimate answer to the
normative question of statutory interpretation might not be neat, but it increases the likelihood that the
final account will be genuinely sensitive to multiple normative commitments. If we decide to heed other
considerations and diverge from the suggested model, we will be doing so at the expense of the
deference we owe to statutes, thus undermining some of the many virtues of modern legislation.

Rosen’s Criticism of Scalia’s Textual Originalism

• According to Scalia, textual originalism simply entails that judges should look for the plain
meaning associated with the statutory text i.e. the meaning which the words of the text conveyed
to reasonable people at the time they were written.
• Scalia’s rationale : when government-adopted texts are given a new meaning, the law is
changed; and changing written law is the function of the first two branches of a democratic
government—elected legislators and elected executive officials. (Hence NOT the job of the
judiciary)
• However, Scalia overstates the democratic case for textualism. His argument rests on 2 implicit
assumptions :
1. That legislative decisions are exhausted by the statutory text. This is a descriptive
assumption, whose veracity depends on the nature of our legislative practices. It is possible
to argue, for example, that modern deliberative practices result in decisions whose content
exceeds the plain meaning of the statutory text. If this is the case, then showing proper
respect to legislative decisions requires the identification of this non-textual content. This
insight leads many to prefer reference to legislative intent over textualist approaches.
2. The second assumption underlying Scalia’s position is that adherence to the particular
legislative decisions sets the limit to what passes for deference. According to this
assumption, going beyond the particular content of decisions of the legislature is not
interpretation of their decision but usurpation. This assumption, however intuitive, is too
quick. Sometimes, exhibiting proper respect to legislation means employing what Scalia
calls ‘the Mr Fix-It mentality’ of the common law judge. That is, sometimes, it is right for
interpreters—as a matter of the respect they owe legislation—to adopt ameliorative,
forward-looking approaches in their interpretation of statutes.
• The question of which approach is appropriate depends on the ultimate value and purpose we
attribute to the legislative process.

Conclusion: Interpretation and the Practice of Respect

This section discusses the problem of statutory interpretation and how it requires adopting an
interpretive approach to properly follow statutes. The article argues that exhibiting proper respect for
authoritative decisions can take different forms and that there is no single, unitary interpretive approach
that should be used for all statutes. The value of legislation determines the way in which interpreters
should apply statutes to particular circumstances. The plurality of legitimate modes of statutory
interpretation is the product of the many virtues of modern legislation. Rather than competing, different
approaches complement each other by prescribing modes of interpretation appropriate on different
occasions. The proper delineation of the province of each approach should be the basis for a theory of
statutory interpretation that is sensitive to the versatile ways in which legislation can be valuable.

Plurality - The corrective approach cannot be taken as the sole interpretive method universally, because
when pluralism within the community is taken into account, then it must be accepted that the
possibilities and methods of interpretation will also constantly remain plural.
In a society in which there is no plurality of conceptions of the good and no divergence in people’s
understanding of reasonableness and morality, political values such as self-government, participation
and equal representation could live peacefully with correctness-based justifications of political
authority. In such circumstances, the tension between control-maximising interpretation and
correctness-oriented interpretation would also be attenuated.
The plurality of legitimate modes of statutory interpretation is the product of the many virtues of modern
legislation. Legislation is valuable to us in many different ways, both as individuals and as members of
a political community. It should really come as no surprise that different approaches are appropriate for
the interpretation of such a diverse array of texts commonly referred to as ‘statutes’. Resisting the urge
to prescribe a single approach to the interpretation of all legislation, we gain a new appreciation for the
insights of existing theoretical positions. Each of the different unitary approaches has a place in our
legal and political lives. Rather than compete, they complement eachother by prescribing modes of
interpretation appropriate on different occasions. The proper delineation of the province of each
approach should be the basis for a theory of statutory interpretation that is sensitive to the versatile ways
in which legislation can be valuable, the different types of disagreement it helps us to overcome and the
different techniques that can legitimately be employed in the interpretation of its product.
 WEEK 4: Truth and Meaning in Interpretation
Ronald Dworkin, Law as Interpretation

Law as Interpretation
In this section, Ronald Dworkin argues that legal practice is an exercise in interpretation, not just when
lawyers interpret specific documents or statutes, but also when they interpret the law as a whole. He
emphasizes that law is deeply political, but not a matter of personal or partisan politics. Dworkin
proposes that a better understanding of law can be achieved by comparing legal interpretation with
interpretation in fields of knowledge such as literature. He expects that a better understanding of law
will lead to a better grasp of interpretation in general.

I. Law
The central problem of analytical jurisprudence is determining what propositions of law should be
given. Legal positivists believe that propositions of law are wholly descriptive, while others believe that
controversial propositions of law are expressions of what the speaker wants the law to be or attempts to
describe some pure objective or natural law. Neither of these projects is plausible. Instead, legal
statements are interpretive of legal history, combining elements of both description and evaluation.
Interpretation as a technique of legal analysis is familiar in the case of the common law, but it cannot
serve as a general account of the nature or truth value of propositions of law unless it is cut loose from
associations with speaker's meaning or intention. Lawyers should study literary and other forms of
artistic interpretation to develop a more inclusive account of what interpretation is.

II. Literature
i. The Aesthetic Hypothesis
This section explores the relationship between legal and literary interpretation. The author focuses on
literary interpretation as discovering the meaning of a work, rather than the sense of a particular phrase.
Interpretive claims about a work's point, theme, meaning, or sense may guide a director staging a new
performance of the play or help us to understand our cultural environment better. The aesthetic
hypothesis suggests that interpretation attempts to show a text as the best work of art it can be, without
changing it into a different one. A theory of interpretation must contain a subtheory about the identity
of a work of art to differentiate between interpreting and changing a work. Contemporary theories of
interpretation use the idea of a canonical text as part of their response to that requirement. Interpretive
style is sensitive to beliefs about meaning, reference, and other technical issues in the philosophy of
language. The major differences among schools of interpretation touch not these quasi-formal aspects
of art but the function or point of art more broadly conceived. The best critics deny that there is one
unique function or point of literature.
The interpretation of art relies on theoretical beliefs about the identity and properties of art, as well as
normative beliefs about what makes good art. These beliefs may be inarticulate but are still genuine and
amenable to argument. Different theories of interpretation are generated by different theories of art, and
academic theories of interpretation are competing conceptions. There is no longer a flat distinction
between interpretation and criticism, and evaluative beliefs about art figure in both judgments.
Objectivity in aesthetic judgments is an open question, but it does not follow that no normative theory
about art is better than any other. The aesthetic hypothesis reverses the familiar strategy of making
interpretation objective, and the connection between theories of interpretation and art is reciprocal.
 ii. Author's Intention
The author argues that theories of interpretation are dependent on normative theories of art and that the
value or significance in art attaches primarily to what the author intended. However, the intentionalist's
theory of interpretation is not a rival to the aesthetic hypothesis, but rather a suitor for the crown that
hypothesis holds out. The author also discusses the complexities in an author's state of mind, including
how intentions for a work and beliefs about it interact. An author is capable of detaching what he has
written from his earlier intentions and beliefs, of treating it as an object in itself, and reaching fresh
conclusions about his work grounded in aesthetic judgments. This is an important fact because any full
description of what an author intended when he set out to write a work must include the intention to
create something independent of his intentions. The intentionalist's theory of interpretation makes the
value of a work of art turn on a narrow and constrained view of the intentions of the author.

III. Law and Literature

i. The Chain of Law
The artist and the critic have different roles in creating and interpreting a work of art, but these roles
can overlap in certain circumstances. For example, a group of novelists working on a project and
building on each other's work must both interpret and create. Similarly, judges in common-law cases
must interpret past decisions in order to continue the legal tradition and advance the law. In both cases,
the interpreter must determine the theme or point of the work or legal tradition as a whole in order to
make the best interpretation. The judge must also determine which principle or reading of past decisions
best represents the legal tradition and should be continued.
Legal interpretation aims to fit the practice of law and show its value in political terms. Judges must
interpret legal history, not invent a better history. The doctrine of fit provides boundaries, but there is
no algorithm for deciding whether an interpretation fits. Judges' theories of fit may fail to produce a
unique interpretation, and substantive political theory will play a decisive role. Judges develop a
particular approach to legal interpretation by forming and refining a political theory sensitive to those
issues on which interpretation in particular cases will depend. Any judge's opinion about the best
interpretation will be the consequence of beliefs other judges need not share.

Ronald Dworkin: Law as Interpretation

• Page 181: “There is a better alternative: propositions of law are not simply descriptive of legal
history, in a straightforward way, nor are they simply evaluative in some way divorced from
legal history. They are interpretive of legal history, which combines elements of both
description and evaluation but is different from both.”
• Page 181: “Suppose the Supreme Court of Illinois decided, several years ago, that a negligent
driver who ran down a child was liable for the emotional damage suffered by the child's mother,
who was standing next to the child on the road. Now an aunt sues another careless driver for
emotional damage suffered when she heard, on the telephone many miles from the accident,
that her niece had been hit. Does the aunt have a right to recover for that damage?”. Thus, the
need for interpretation of statutes; interpretation as a technique of legal analysis when a
term is vague or sentence is ambiguous in a statute.
• Intentionalism: Page 182-190
Dworkin discusses intentionalism in Law’s Empire. Herein, Dworkin discusses these
literary works to illustrate the interpretations that may be derived by intentionalists.
Intentionalists make the author’s state of mind central to the interpretation. However,
law, unlike literature, is not an artistic enterprise.
• Page 191: The Chain of Law
Inception of the Chain Novel Theory: Page 192
“Suppose that a group of novelists is engaged for a particular project and that they draw lots to
determine the order of play. The lowest number writes the opening chapter of a novel, which
he or she then sends to the next number who adds a chapter, with the under- standing that he is
adding a chapter to that novel rather than beginning a new one, and then sends the two chapters
to the next number, and so on. Now every novelist but the first has the dual responsibilities of
interpreting and creating because each must read all that has gone before in order to establish,
in the interpretivist sense, what the novel so far created.”- “Deciding hard cases at law is
rather like this strange literary exercise (common law cases). Each judge is then like a
novelist in the chain.”
• Chain Novel Theory: “Deciding hard cases at law is rather like this strange literary exercise.
The similarity is most evident when judges consider and decide common-law cases; that is,
when no statute figures centrally in the legal issue, and the argument turns on which rules or
principles of law "underlie" the related decisions of other judges in the past. Each judge is then
like a novelist in the chain. He or she must read through what other judges in the past have
written not simply to discover what these judges have said, or their state of mind when they
said it, but to reach an opinion about what these judges have collectively done, in the way that
each of our novelists formed an opinion about the collective novel so far written. Any judge
forced to decide a lawsuit will find, if he looks in the appropriate books, records of many
arguably similar cases decided over decades or even centuries past by many other judges of
different styles and judicial and political philosophies, in periods of different orthodoxies of
procedure and judicial convention. Each judge must regard himself, in deciding the new case
before him, as a partner in a complex chain enterprise of which these innumerable decisions,
structures, conventions, and practices are the history; it is his job to continue that history into
the future through what he does on the day. He must interpret what has gone before because he
has a responsibility to advance the enterprise in hand rather than strike out in some new
direction of his own.”

• Two theories about “meaning” of the chain of decisions: Page 194

“According to the first, negligent drivers are responsible to those whom their behavior is likely
to cause physical harm, but they are responsible to these people for whatever injury-physical or
emotional-they in fact cause. If this is the correct principle, then the decisive difference between
that case and the aunt's case is just that the aunt was not within the physical risk, and therefore
she cannot recover. On the second theory, however, negligent drivers are responsible for any
damage they can reasonably be expected to foresee if they think about their behavior in
advance. If that is the right principle, then the aunt may yet recover. Everything turns on
whether it is sufficiently foreseeable that a child will have relatives, beyond his or her
immediate parents, who may suffer emotional shock when they learn of the child's injury. The
judge trying the aunt's case must decide which of these two principles represents the better
"reading" of the chain of decisions he must continue.”

• Dworkin’s argument on law as a political enterprise: Page 194

“A plausible interpretation of legal practice must also, in a parallel way, satisfy a test of two
dimensions: it must both fit that practice and show its point or value. But point or value here
cannot mean artistic value because law, unlike literature, is not an artistic enter- prise. Law is a
political enterprise, whose general point, if it has one, lies in coordinating social and individual
 effort, or resolving social and individual disputes, or securing justice between citizens and
between them and their government, or some combination of these.”

• Doctrine of mistake: Page 195

“So any useful conception of interpretation must contain a doctrine of mistake-as must any
novelist's theory of interpretation for the chain novel. Some- times a legal argument will
explicitly recognize such mistakes: "Insofar as the cases of A v. B and C v. D may have held to
the contrary, they were, we believe, wrongly decided and need not be followed here."
Sometimes the doctrine of precedent forbids this crude approach and requires something like:
"We held, in E v. F, that such-and-such, but that case raised special issues and must, we think,
be confined to its own facts".” The flexibility of the chain novel theory, subject to restraint.

• Summary: Page 196

“Judges develop a particular approach to legal interpretation by forming and refining a
political theory sensitive to those issues on which interpretation in particular cases will
depend; and they call this their legal philosophy. It will include both structural features,
elaborating the general requirement that an interpretation must fit doctrinal history, and
substantive claims about social goals and principles of justice. Any judge's opinion about
the best interpretation will therefore be the consequence of beliefs other judges need not share.
If a judge believes that the dominant purpose of a legal system, the main goal it ought to serve,
is economic, then he will see in past accident decisions some strategy for reducing the economic
costs of accidents overall. Other judges, who find any such picture of the law's function
distasteful, will discover no such strategy in history but only, perhaps, an attempt to reinforce
conventional morality of fault and responsibility.” This is the legal philosophy of judges
through techniques of statutory construction and chain novel theory.

• Questions: Dworkin drives his idea of interpretation of law from moral and political
perspectives. Cite examples given by him from literary and artistic interpretations to
explain his theory. [Law as Interpretation as well as Pragmatism and Personification from
Law’s Empire]
Answer: Structure:
1. Intentionalism by Dworkin;
2. Pragmatism is abstract;
3. Precedents and the chain novel theory;
4. Examples of Hamlet and the French Lieutenant’s Woman, etc (refer pages 182-190).

Central problem of analytical jurisprudence – what sense should be affixed to propositions of

law?
® Propositions of law can be abstract or concrete.
® Abstract proposition of law example: the United States may not discriminate on racial group
supplying basic services to citizens is premised on abstract grounds
® Concrete proposition of law example: X is liable in damages to Mr. Y in the amount of $1,150
because he slipped on her icy sidewalk and broke his hip.
® In each of the aforesaid cases a puzzle arises since they are entirely descriptive in nature.
 ® This is hinged on the understanding that propositions of law are about things in the law rather
than what the law aspires to be.

Positivists
® Believe that propositions of law are indeed wholly descriptive: they are in fact pieces of history.
® A proposition of law is true just in case some event of a designated law-making kind has taken
place, and otherwise not. (Works well in simple cases).
® If the Illinois legislature enacts the words "No will shall be valid without three witnesses," then
the proposition of law, that an Illinois will needs three witnesses, seems to be true only in virtue
of that historical event.

Difficult cases
® A particular affirmative action scheme (not yet tested in the courts) is constitutionally valid.
® If that is true, it cannot be so just in virtue of the text of the Constitution and the fact of prior
court decisions, because reasonable lawyers who know exactly what the Constitution and the
fact of prior court decisions.

Alternate propositions
® Propositions of law are descriptive of legal history in a straightforward way nor are they simply
evaluative in some way divorced from legal history.
® Therefore, they combine elements of both description and evaluative, which may look
congenial to some lawyers and legal philosophers since they view law as a matter of
interpretation.
® When a statute (or the Constitution) is unclear on some point because some crucial term is
vague or because a sentence is ambiguous, lawyers say that the statute must be interpreted, and
they apply what they call ‘techniques of statutory construction’.

Literature assumes that interpretation of a Lawyers –

document is equivalent to discovering the intent a. intent cannot be discovered
behind the words employed. b. judges pretended to discover intention under
the guise of imposing their own views

The idea of interpretation cannot serve as a general account of the nature or truth value of propositions
of law, however, unless it is cut loose from these associations with speaker's meaning or intention
Otherwise it becomes simply one version of the positivist's thesis that propositions of law describe
decisions taken by people or institutions i the pas

Nexus between Law and Literature

® Students of literature do many things under the titles of "interpretation" and "hermeneutics,"
and most of them are also called "discovering the meaning”.
® Dworkin is particularly interested in instead in arguments which offer some sort of
interpretation of the meaning of a work as a whole. Example : Hamlet really loved his mother,
 for example, or that he really hated her, or that there really was no ghost but only Hamlet himself
in a schizo- phrenic manifestation.
® They may guide a director staging a new performance of the play, for example. But they may
also be of more general importance, helping us to an improved understanding of important parts
of our cultural environment.
® Interpretation of a text attempts to show it as the best work of art it can be, and the pronoun
insists on the difference between explaining a work of art and changing it into a different one.
® Shakespeare could have written a better play based on the sources he used for Hamlet than he
did, and in that better play the hero would have been a more forceful man of action. It does not
follow that Hamlet, the play he wrote, really is like that after all.
® A theory of interpretation must contain a subtheory about identity of a work of art in order to
be able to tell the difference between interpreting and changing a work. Any useful theory of
identity will be controversial, so that this is one obvious way in which disagreements in
interpretation will depend on more general disagreements in aesthetic theory.

Contemporary theories of interpretation

® Contemporary theories of interpretation all seem to use, as part of their response to that
requirement, the idea of a canonical text (or score, in the case of music, or unique physical
object, in the case of
® A joke, for example, may be the same joke though told in a variety of forms, none of them
canonical; an interpretation of a joke will choose a particular way in which to put it, and this
may be wholly original, in order to bring out its "real" point or why it is "really" funny.) So
® Literary critic's style of interpretation will be sensitive to theoretical beliefs about the nature
and evidence for a canonical text.

Interpreter’s opinion
® An interpretive style will also be sensitive to the interpreter's opinions about coherence or
integrity in art.
® An interpretation cannot make a work of art more distinguished if it makes a large part of the
text irrelevant, or much of the incident accidental, or a great part of the trope or style
unintegrated and answering only to independent standards of fin writing.
® For example: To read a detective novel, as if it were a philosophical treatise on death is to
obscure a point of view from which it can be a piece of literature with value. Still, Dworkin
also argues that we can approach texts with different aesthetic hypotheses about what makes a
piece of literature a good one - such an interpretation makes the novel shambles.
® The organisation, style, and figures would be appropriate not to a philosophical novel but to an
entirely different

Interpretive styles and beliefs

® Theories of art do not exist in isolation from philosophy, psychology, sociology, and
cosmology.
® Someone who accepts a religious point of view will probably have a different theory of art from
someone who does not, and recent critical theories have made us see how far interpretive style
is sensitive to beliefs about meaning, reference, and other technical issues in the philosophy of
language.
® But the aesthetic hypothesis does not assume that anyone who interprets literature will have a
fully developed and self-conscious aesthetic theory.
 ® A novel or a play may be valuable in any number of ways, some of which we learn by reading
or looking or listening, rather than by abstract reflection about what good art must be like or
for.

Different theories of art are generated by different theories of interpretation

- If someone thinks stylistics are important to interpretation, he will think a work of art better because
it integrates pronunciation and trope; if someone is at- tracted by deconstruction, he will dismiss
reference in its familiar sense from any prominent place in an account of language.
- Since people's views about what makes art good art are inherently subjective, the aesthetic
hypothesis abandons hope of rescuing objectivity in interpretation except, perhaps, among those
who hold very much the same theory of art, which is hardly very helpful.

Aesthetic claims are not objective in nature

Whether the main judgments we make about art can properly be said to be true or false, valid or invalid
is a part of the more general philosophical issue of objectivity, presently much discussed in both ethics
and the philosophy of language, and no one is entitled to a position who studies the case of aesthetic
judgement alone.
No important aesthetic claim can be "demonstrated" to be true or false; no argument can be produced
for any interpretation which we can be sure will commend itself to everyone, or even everyone with
experience and training in the appropriate form of art. If this is what it means to say that aesthetic
judgments are subjective-that they are not demonstrable- then of course they are subjective.

CRITIQUE - E. D. Hirsch, for example, argues that only a theory like his can make interpretation
objective and particular interpretations valid. (objections raised against validity)
® Interpretation is an enterprise, a public institution, and it is wrong to assume, a priori, that the
propositions central to any public enterprise must be capable of validity.
® It is also wrong to assume much about what validity in such enterprises must be like-whether
validity requires the possibility of demonstrability, for example.
® We should first study a variety of activities in which people assume that they have good reasons
for what they say, which they assume hold generally and not just from one or another individual
point of view. We can then judge what standards people accept in practice for thinking that they
have reasons of that kind.

Objections raised by Intentionalists:

® First Objection - the author's intention theory presents itself as a rival to the best theory of
interpretation.
o But it is very difficult to understand the author's intention theory as any sort of rival to
the present hypothesis. What question does it propose to answer better? Not, certainly,
some questions about the ordinary language or even technical meaning of the words
"meaning" or "interpretation”.
o No plausible theory of interpretation holds that the intention of the author is always
irrelevant. Sometimes it is plainly the heart of the matter, as when some issue turns on
what Shakespeare meant by "hawk" as distinguished from "handsaw." But it is
nevertheless controversial that we must know whether Shakespeare thought Hamlet
was sane or a madman pretending to be mad in order to decide how good a play he
wrote.
 o The intentionalist thinks that we do, and that is exactly why his theory of interpretation
is not a rival to the aesthetic hypothesis but rather a suitor for the crown that hypothesis
holds out.
® Second Objection - Intentionalists make the author's state of mind central to interpretation. But
they are misunderstood, since certain complexities in that state of mind - they fail to appreciate
how intentions for a work and beliefs about it interact.
o Example : Fowles changed his mind about how the story in The French Lieuten- ant's
Woman "really" goes in the midst of writing it, if we are to credit this description.But
he might also have changed his mind about some aspect of the novel's "point" years
later, as he is rumored to have done after seeing the film made from his book.
o The intentionalist wants us to choose between two possibilities. Either the author
suddenly realises that he had a "subconscious intention" earlier, which he only now
discovers, or he has simply changed his intention later. Neither of these explanations is
at all satisfactory.
o The subconscious is in danger of becoming phlogiston here, unless we suppose some
independent evidence, apart from the author's new view of his work, to suggest that he
had an earlier subconscious intention.
o Fowles changed his view in the course of writing his book, but he changed it, as he
insists, by confronting the text he had already written, by treating its characters as real
in the sense of detachable from his own antecedent designs, in short by interpreting it,
and not by exploring the subconscious depths of som previous plan or finding that he
had a new plan.
o If it is true that he changed his mind again, after seeing the film, then this was, once
again, not a retrospective new intention or a rediscovered old one. It was another
interpretation.
o An author is capable of detaching what he has written from his earlier intentions and
beliefs, of treating it as an object in itself.
o He is capable of reaching fresh conclusions about his work grounded in aesthetic
judgments: that his book is both more coherent and a better analysis of more important
themes read in a somewhat different way from what he thought when he was written.
o The intentions of authors are not simply conjunctive, like the intentions of someone
who goes to market with a shopping list, but structured, so that the more concrete of
these intentions, like intentions about the motives of a particular character in a novel,
are contingent on interpretive beliefs whose soundness varies with what is produced
and which might be radically altered from time to time.
o We can, perhaps, isolate the full set of interpretive beliefs an author has at a particular
moment (say at the moment he sends final galleys to the printer) and solemnly declare
that these beliefs, in their full concreteness, fix what the novel is or means.
o But even if we (wrongly) call this particular set of beliefs "intentions," we are, in
choosing them, ignoring another kind or level of intention, which is the intention to
create a work whose nature or meaning is not fixed in this way, because it is a work of
art. That is why the author's intention school, makes the value of a work of art turn on
a narrow and constrained view of the intentions of the author.
III. Law and Literature

1. The Chain of Law

Summary: Dworkin's chain novel theory, also known as the "chain novel argument," is a concept
developed by Ronald Dworkin, a prominent legal philosopher. While Dworkin is primarily known for
his work in legal philosophy, his chain novel theory provides insight into the nature of interpretation
and the relationship between law, morality, and literature. The main point of Dworkin's chain novel
theory is to illustrate his view that interpretation is an ongoing process that requires taking into account
the entire narrative or story, rather than focusing solely on individual elements or isolated parts.
Dworkin uses the metaphor of a chain novel, a fictional narrative created collaboratively by multiple
authors, to emphasize the importance of considering the work as a whole.
According to Dworkin, just as a chain novel must be read as a coherent whole, legal texts and societal
practices should be interpreted as part of an ongoing story or narrative. He argues that judges and legal
interpreters should strive to construct an interpretation that best fits with the overall coherence and
integrity of the legal system. This perspective contrasts with a more narrow or strict textualist approach,
which focuses solely on the explicit words or original intent of the law. Dworkin suggests that legal
interpretation should consider not only the specific language of legal texts but also broader legal
principles, values, and policies. He contends that these underlying principles and values provide a
framework for understanding the legal system as a consistent and coherent narrative.
Dworkin's theory “Chain of law” an attempt to provide a comprehensive account of the nature of law,
its interpretation, and its relationship with morality. According to Dworkin, the chain of law consists of
three key elements: rules, principles, and policies.
Dworkin's central argument was that legal interpretation should be guided by principles rather than
simply applying the literal meaning of rules. He criticized the "positivist" view that law is solely derived
from legislative enactments or legal precedents. Instead, Dworkin advocated for a "moral reading" of
the law, emphasizing the role of principles in shaping legal decisions.

The example is as follows: Suppose that a group of novelists is engaged for a particular project and
that they draw lots to determine the order of play. The lowest number writes the opening chapter of a
novel, which he or she then sends to the next number who adds a chapter, with the under- standing that
he is adding a chapter to that novel rather than beginning a new one, and then sends the two chapters to
the next number, and so on. Now every novelist but the first has the dual responsibilities of interpreting
and creating, because each must read all that has gone before in order to establish, in the interpretivist
sense, what the novel so far created is. He or she must decide what the characters are “really” like; what
motives in fact guide them; what the point or theme of the developing novel is; how far some literary
device or figure, consciously or unconsciously used, contributes to these, and whether it should be
extended or refined or trimmed or dropped in order to send the novel further in one direction rather than
another. This must be interpretation in a non-intention-bound style because, at least for all novelists
after the second, there is no single author whose intentions any interpreter can, by the rules of the
project, regard as decisive.

The Foundation of the Chain Novel Theory: At the core of Dworkin's theory lies the notion that legal
interpretation should be seen as analogous to interpreting a complex novel. Just as a novel consists of a
coherent narrative built upon interconnected themes, characters, and events, the law should be viewed
as a unified whole, with each legal decision contributing to a broader story.
Interpreting legal rules: The chain novel metaphor is used to illustrate the coherence and narrative
structure of the law itself. The metaphor highlights the interconnectedness of legal principles, rules, and
decisions within a legal system, similar to the interconnected elements of a novel.

Dworkin argues that interpreting the law requires grasping its narrative coherence, akin to
understanding the plot and themes of a novel. Just as readers analyse the development of characters
and events, judges should scrutinize legal principles, precedents, and statutes to discern the story
underlying the law. By doing so, they can better comprehend the broader context and purpose of specific
legal rules.
1. “Each judge is then like a novelist in the chain. He or she must read through what other judges
in the past have written not simply to discover what these judges have said, or their state of mind
when they said it, but to reach an opinion about what these judges have collectively done, in the
way that each of our novelists formed an opinion about the collective novel so far written.”
2. “Each judge must regard himself, in deciding the new case before him, as a partner in a complex
chain enterprise of which these innumerable decisions, structures, conventions, and practices are
the history; it is his job to continue that history into the future through what he does on the day. He
must interpret what has gone before because he has a responsibility to advance the enterprise in
hand rather than strike out in some new direction of his own. So he must determine, according to
his own judgment, what the earlier decisions come to, what the point or the practice so far, taken as
a whole, really is.”

Dworkin explores the nature of disagreement over the interpretation of legal precedent. He begins by
drawing a parallel between literary interpretation and legal interpretation, highlighting that both aim to
reveal the value or significance of the subject matter. In literary interpretation, this involves considering
formal features, coherence, integrity, and artistic value. Similarly, in legal interpretation, a plausible
interpretation must fit the practice of law and demonstrate its political value. Dworkin emphasizes that
the notion of value in legal interpretation differs from artistic value because law is a political enterprise.
The general purpose of law lies in coordinating social and individual efforts, resolving disputes, and
achieving justice. Therefore, an interpretation of any area of law, such as accident law, must
demonstrate the value of that body of law in political terms by identifying the best principle or policy
it serves.
However, Dworkin cautions against judges using interpretation as an opportunity to impose their own
desired outcomes onto doctrinal history. Judges have a duty to interpret the legal history they find rather
than inventing a preferred history. The concept of fit provides some boundaries for interpretation, but
there is no algorithm to determine whether an interpretation adequately fits the historical context. When
statutory or constitutional texts are part of the doctrinal history, the speaker's intended meaning plays a
role. However, determining the appropriate sense of intention requires a decision based on political
theory, rather than referring to any specific individual's intention.
In common-law cases, the question of fit becomes more complex. Proposed interpretations of a series
of decisions are likely to encounter counter-examples or arguments that suggest a different
interpretation. Therefore, any useful interpretation must acknowledge the possibility of mistakes,
similar to a novelist's theory of interpretation for a chain novel. Sometimes legal arguments explicitly
recognize mistakes made in previous cases, while other times the doctrine of precedent requires a more
nuanced approach, acknowledging that certain cases were confined to their specific facts.

Overall, Dworkin highlights the importance of interpreting legal precedent within the boundaries of
the existing legal history, demonstrating its political value, and recognizing the complexity of fit and
the potential for mistakes.
Different judges' theories of fit often lead to multiple interpretations, as there is no unique interpretation
that satisfies all perspectives. Similar to different readings of a poem finding support in the text,
different principles can find support in past decisions to fit a theory of interpretation. In such cases,
substantive political theory plays a crucial role in determining the better interpretation. For instance,
when interpreting accident law, an interpretation that holds a careless driver liable for substantial and
foreseeable damage might be considered better because it aligns with a sound principle of justice, rather
than principles that distinguish between physical and emotional damage or base recovery on physical
danger. However, it's important to acknowledge that this issue is complex and related to political
morality, with distinguished judges and lawyers taking different sides.
In summary, judges develop their own approach to legal interpretation by shaping a political theory,
referred to as their legal philosophy, which considers the specific issues involved in interpreting
particular cases. This philosophy encompasses both structural aspects, emphasizing the requirement for
interpretations to align with doctrinal history, and substantive elements, considering social goals and
principles of justice. Consequently, each judge's opinion about the best interpretation is influenced by
their individual beliefs, which may differ from those of other judges. If we strive for neutrality in
describing legal interpretation, it is difficult to provide a more concrete explanation of its nature.

Author’s intention:
The author discusses objections to the thesis that legal interpretation is essentially political. They
address the objection that this view makes law subjective and argues that interpretation is different from
both description and evaluation. The author also considers the objection that the political hypothesis
fails to give an adequate place to author's intention. They argue that the author's intention theory is a
conception of interpretation that claims the best political theory gives the intentions of legislators and
past judges a decisive role in interpretation. However, the author notes that a legislator's intention is
complex and structured in ways that embarrass any simple author's intention theory in literature. The
author concludes that the choice between different descriptions of legislative intention cannot be made
by any reflection about what an intention really is but rather by what description is more appropriate in
light of the best theory of representative democracy or on some other political grounds. The author
argues that the problems of interpretation in common law are not simply evidentiary and cannot be
resolved by looking at the intentions of past judges.
Dworkin suggests that the author's intention theory is more reasonable when applied to interpreting
canonical legal texts, such as constitutional clauses, statutes, contracts, or wills. He highlights the
complexity of a legislator's intention, just as a novelist's intention is multifaceted. He presents an
example of a delegate voting for a constitutional clause that guarantees equality without regard to race
but believing that racially segregated schools are not unconstitutional because education is not a
fundamental interest. Dworkin distinguishes between abstract and concrete intentions and emphasizes
that the choice between different descriptions of intention depends on the preferred theory of
representative democracy or other openly political considerations. He notes that no compelling
argument has been put forth in favor of deferring to a delegate's more concrete intentions, which is
significant in discussions surrounding the original intention of the Framers and issues like racial
discrimination or capital punishment.
Dworkin argues that the author's intention theory is inadequate for interpreting common-law problems.
Discovering the intentions of past judges would result in a multitude of psychological data, specific to
each judge, which could only be organized through statistical summaries. However, even with statistical
summaries, this information would not help a judge determine the collective meaning of prior decisions.
Interpreting the law requires a fresh exercise of interpretation, neither solely relying on historical
research nor imposing idealistic notions.
To avoid these problems, a judge who values discerning an author's intention might choose to focus on
one judge or a small group of judges from the past, attempting to determine their intended rule for the
future. However, this approach treats those earlier judges as legislators and introduces the issues of
statutory interpretation. Furthermore, it does not resolve the unique challenges of common-law
adjudication because the judge applying this theory would have to believe that looking solely at the
intentions of the selected earlier judge(s) is what judges in their position should do, based on the overall
judicial practice, rather than just the intentions of another selected judge.
Dworkin posits that iterary interpretation aims to show how the work in question can be seen as the
most valuable work of art, and so must attend to formal features of identity, coherence, and integrity as
well as more substantive considerations of artistic value. A plausible interpretation of legal practice
must also, in a parallel way, satisfy a test with two dimensions: it must both fit that practice and show
its point or value (overarching point). But point or value here cannot mean artistic value because law,
unlike literature, is not an artistic enterprise. Law is a political enterprise, whose general point, if it has
one, lies in coordinating social and individual effort, or resolving social and individual disputes, or
securing justice between citizens and between them and their government, or some combination of
these. (This characterization is itself an interpretation, of course, but allowable now because relatively
neutral.) So an interpretation of any body or division of law, like the law of accidents, must show the
value of that body of law in political terms by demon- strating the best principle or policy it can be
taken to serve.

Politics in Interpretation:
The role of politics in legal interpretation has been explored in constitutional law, where conservative
lawyers favored an author's intentions style and accused others of inventing law. However, it is argued
that reliance on political theory is not a corruption but part of interpretation. The politics of
interpretation in literary and artistic interpretation are also discussed, with the suggestion that principles
of political morality can count as arguments for a particular interpretation or approach. A connection
between aesthetic and political theory is explored, with the suggestion that there may be particular
philosophical bases shared by particular aesthetic and political theories. It is acknowledged that politics,
art, and law are somehow united in philosophy.
Dworkin argues that if we accept his ideas about the influence of politics on legal interpretation, we
should expect to see different political ideologies (liberal, radical, conservative) not only influencing
what the Constitution and laws should be, but also shaping how they are interpreted. He points to the
equal protection clause of the Constitution as an example, stating that understanding its meaning
requires a theory about political equality and justice. Over the past fifty years, constitutional law has
explored these issues extensively. Conservative lawyers have advocated for interpreting the clause
based on the original intentions of its authors, while accusing those who interpret it differently and
achieve more egalitarian outcomes of inventing rather than interpreting the law. Dworkin suggests that
such accusations are a way for conservatives to conceal the influence of their own political beliefs on
their choice of interpretive style. He argues that recognizing the role of political theory in interpretation
is not a corruption, but an integral part of the interpretive process.
Dworkin is discussing the role of politics in literary and artistic interpretation. He mentions Stanley
Fish's theory that contests between rival schools of interpretation are more political than argumentative.
Dworkin also acknowledges the influence of political and economic structures on the fashion in
interpretation. However, Dworkin shifts the focus to the internal question of how principles of political
morality can be used as arguments for specific interpretations of works or general approaches to artistic
interpretation. He suggests that if our political convictions affect our evaluation and appreciation of
literature, they should also influence our choice of the best interpretation among competing
interpretations.
Dworkin suggests that there may be an indirect connection between aesthetic and political theory. He
argues that any comprehensive theory of art will likely involve an epistemological thesis, relating to the
connections between experience, self-consciousness, and the perception or formation of values.
Similarly, a comprehensive theory of social justice will likely be rooted in convictions about these issues
or closely related ones. Dworkin proposes that philosophical foundations may be shared by specific
aesthetic and political theories, allowing us to speak of, for example, a liberal or Marxist aesthetics.
However, he acknowledges that common questions and problems alone do not guarantee this
connection. It would be necessary to examine whether specific political theories have distinct
epistemological bases, separate from other theories, and whether these bases can be extended to
aesthetic theory to create a distinct interpretive style. Dworkin concludes by acknowledging that
politics, art, and law are somehow interconnected in philosophy, although he admits uncertainty about
the success of the proposed project.

Dworkin (Law as Interpretation) – Law is political. Legal positivists believe that propositions of law
are indeed wholly descriptive: they are in fact pieces of history. But in more difficult cases the analysis
fails. Consider the proposition that a particular affirmative action scheme (not yet tested in the courts)
is constitutionally valid. Someone who says that a particular un tested affirmative action plan is
constitutional does mean to describe the law as it is rather than as he wants it to be or thinks that, by the
best moral theory, it should be. Law as per Dworkin is interpretive of legal history, which combines
elements of both description and evaluation but is different from both. When a statute (or the
Constitution) is unclear on some point, because some crucial term is vague or because a sentence is
ambiguous, lawyers say that the statute must be interpreted, and they apply what they call "techniques
of statutory construction." Most of the literature assumes that interpretation of a particular document is
a matter of discovering what its authors (the legislators, or the delegates to the constitutional
convention) meant to say in using the words they did. But lawyers recognize that on many issues the
author had no intention either way and that on others his intention cannot be discovered. Some lawyers
take a more sceptical position. They say that whenever judges pretend they are discovering the intention
behind some piece of legislation, this is simply a smoke screen behind which the judges impose their
own view of what the statute should have been. As per Dworkin, interpretation of a text attempts to
show it as the best work of art it can be, and the pronoun insists on the difference between explaining a
work of art and changing it into a different. He says there could be multiple ways of interpreting as per
different theories but there must be coherence and integrity while interpreting.
Authors’ intention theories must suppose, on the present hypothesis, that valuable in a work of art, what
should lead us to value one work more than another, is limited to what the author in some narrow
constrained sense intended to. He criticises intentionalists because they make the author's state of mind
central to interpretation. But they misunderstand, so far as I can tell, certain complexities in that state
of mind; in particular they fail to appreciate how intentions for a work and beliefs about it interact.
Intention of author is indeed important as per Dworkin but there is also another level of intention that
authors have which is the intention to create a work whose nature or meaning is not fixed in this way
because it is a work of art. A legislator’s intention is complex in several ways. Suppose a delegate to a
constitutional convention votes for a clause guaranteeing equality of treatment, without regard to race,
in matters touching people's fundamental interests; but he thinks that education is not a matter of
fundamental interest and so does not believe that the clause makes racially segregated schools
unconstitutional. We may sensibly distinguish an abstract and a concrete intention here: the delegate
intends to prohibit discrimination in whatever in fact is of fundamental interest and also intends not to
prohibit segregated schools.
Dworkin says you have to find the best interpretation and there are two principles – identity (don’t pick
the interpretation that alters the meaning of the text) and integrity (pick the interpretation that
incorporates the text as a whole). Pick the interpretation that the author intends to mean. It is difficult
to find author’s interpretation so look at normative beliefs of what is good. When a judge interprets a
provision, they should not pick an interpretation which alters the provision. Look at legislative history
of statute, amendments of the statute but all of them should be looked at together and not in isolation.
It is okay to overrule judgements and discard previous judgements. There are limitations to overruling
judgements. Para 54 in maneka Gandhi is where judge acknowledges that judges in previous
judgements did not interpret article 21 properly.

Kesavananda Bharati Case:

14 – I must interpret Article 368 in the setting of our Constitution, in the background of our history and
in the light of our aspirations and hopes, and other relevant circumstances. No other Constitution in
the world is like ours. No other constitution combines under its wings such diverse people, numbering
now more than 550 millions, with different languages and religions and in different stages of economic
development, into one nation, and no other nation is faced with such vast socio-economic problems.
15 - I need hardly observe that I am not interpreting an ordinary statute, but a Constitution which apart
from setting up a machinery for Government, has a noble and grand vision. The vision was put in words
in the preamble and carried out in part by conferring fundamental rights on the people. The vision was
directed to be further carried out by the application of directive principles.

AK Gopalan: “Procedure established by law”. Read statute plainly and interpreted the law.
Maneka Gandhi: Looked at the statute but read it in the light of principles of natural justice.
Maneka Gandhi:
4 - This contention of the petitioner raises a question as to the true interpretation of Article 21. What is
the nature and extent of the protection afforded by this article? What is the meaning of “personal
liberty” …….Article 21 occurs in Part III of the Constitution which confers certain fundamental rights.
These fundamental rights had their roots deep in the struggle for independence and, as pointed out by
Granville Austin in The Indian Constitution — Cornerstone of a Nation, “they were included in the
Constitution in the hope and expectation that one day the tree of true liberty would bloom in India”.
They were indelibly written in the subconscious memory of the race which fought for well nigh thirty
years for securing freedom from British rule and they found expression in the form of fundamental
rights when the Constitution was enacted. These fundamental rights represent the basic values
cherished by the people of this country since the Vedic times and they are calculated to protect the
dignity of the individual and create conditions in which every human being can develop his personality
to the fullest extent. They weave a “pattern of guarantees on the basic-structure of human rights” and
impose negative obligations on the State not to encroach on individual liberty in its various dimensions.
5 - ….. The wavelength for comprehending the scope and ambit of the fundamental rights has been set
by this Court in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] and our approach in the
interpretation of the fundamental rights must now be in tune with this wavelength. …
81 – This line of logic alone will make the two clauses of Article 21 concordant, the procedural
machinery not destroying the substantive fundamentally. The compulsion of constitutional humanism
and the assumption of full faith in life and liberty cannot be so futile or fragmentary that any transient
legislative majority in tantrums against any minority, by three quick readings of a bill with the requisite
quorum, can prescribe any unreasonable modality and thereby sterilise the grandiloquent mandate.

Gadamer: Eskridge cites Gadamer who had said that interpreter will have a current context and will
also have circumstances that existed when that statute was made. Look at circumstances of interpreter
and look at history when the statute was enacted and see what changes have taken place between those
two points. Look at everything that has transpired between these 2 points. Interpretation is nothing but
a conversation between past and present keeping in mind everything that happened in between. 3
philosophies – interpretation is ontological, a dialogue and is not merely an exercise but involves critical
approach to the text. Truth is independent of method.
Critics of Gadamer’s theory:
- Scientific method
- Aesthetics
- Historicism
Boutlier v INS – Had to interpret what “psychopathic personality” meant and so judges said that being
homosexual was a psychopathic personality. 3 approaches – textualist approach, archaeological
approach/reconstruction approach (background and public deliberation must be given importance and
must go into legislative history) and present – minded approach (look at present circumstances and then
give interpretation). Eskridge says that provisions should be read in such a way that the statute is read
as a dynamic document. Statute also has to be interpreted dynamically. Also have to ask how the law
has changed and evolved over time.

Dynamically interpret = present context + evolutive perspective.

State (CBI) v S.J. Chaudhry – Admissibility of typewriter as evidence. Dynamic approach is important
because by looking at current scenarios, old statutes can still stay relevant.
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 - When we talk about the rights guaranteed
under the Constitution and the protection of these rights, we observe and comprehend a manifest
ascendance and triumphant march of such rights which, in turn, paves the way for the doctrine of
progressive realisation of the rights under the Constitution. This doctrine invariably reminds us about
the living and dynamic nature of a Constitution. Edmund Burke, delineating upon the progressive and
the perpetual growing nature of a Constitution, had said that a Constitution is ever-growing and it is
perpetually continuous as it embodies the spirit of a nation. It is enriched at the present by the past
experiences and influences and makes the future richer than the present (190).
Indian Young Lawyers Association v. State of Kerala – Our conversations with the Constitution must
be restructured to evolve both with the broadening of the content of liberty and dignity and the role of
the Court as an enforcer of constitutional doctrine. The basic principle which must guide any analysis
in this area is the dominance of the values of liberty, equality and fraternity as instruments in achieving
individual dignity. Once individual dignity assumes the character of a shining star in the constellation
of fundamental rights, the place of religion in public places must be conditioned by India's unwavering
commitment to a constitutional order based on human dignity. Practices which are destructive of liberty
and those which make some citizens less equal than others can simply not be countenanced (221).
Article 17 is an intrinsic part of the social transformation which the Constitution seeks to achieve.
Hence in construing it, the language of the Constitution should not be ascribed a curtailed meaning
which will obliterate its true purpose. “Untouchability” in any form is forbidden. The operation of the
words used by the Constitution cannot be confined to a particular form or manifestation of
“untouchability”. The Constitution as a constantly evolving instrument has to be flexible to reach out
to injustice based on untouchability, in any of its forms or manifestations. Article 17 is a powerful
guarantee against exclusion. As an expression of the anti-exclusion principle, it cannot be read to
exclude women against whom social exclusion of the worst kind has been practised and legitimised on
notions of purity and pollution (348).
 WEEK 5: Judges and Judicial Reasoning and Discretion in the Interpretation of
Statutes
William Eskridge Jr. & Philip Frickey, Statutory Interpretation as Practical Reasoning

Foundational Theories of Eskridge:

1. Intentionalism –
a. Assumption is that intent is always clearly expressed by legislature.
b. Judges undertake to find the original intent of lawmakers. Judges give primacy to text, but
texts may not always show intent.
c. Sometimes the intent is not always clear and that is why intentionalism on its own fails.
Courts also look at other things to find intent.
d. Intentionalism rests on the flawed assumption that intent is clearly expressed.
e. The intention is indeterminate and difficult to decipher. There are other considerations that
it does not consider.
Kesavananda Bharati - Para 1088 “…The speeches in the legislatures are said to afford no
guide because members who speak in favour or against a particular provision or
amendment only indicate their understanding of the provision which would not be admissible
as an aid for construing the provision. The members speak and express views which differ from
one another, and there is no way of ascertaining what views are held by those who do not speak.
It is, therefore, difficult to get a resultant of the views in a debate except for the ultimate result
that a particular provision or its amendment has been adopted or rejected and in any case none
of these can be looked into as an aid to construction except that the legislative history of the
provision can be referred to for finding out the mischief sought to be remedied or the purpose
for which it i s enacted, if they are relevant.”

2. Purposivism –
a. Read provisions in light of purpose.
b. The presumption is that lawmakers enact a statute based on a purpose.
c. The assumption is that the legislature is a reasonable body filled with reasonable people
who reach a reasonable conclusion. One criticism is that assumption is flawed – purpose is
reflective of the legislature and upholds democratic values.
d. Not every law maker ascribes the same purpose. It claims to uphold democratic values, but
it is flawed.
i. For e.g., for CAA, the legislature said they were trying to secure persecuted
minorities but in reality, their intent was something else so clearly the assumption
was flawed.
ii. Another criticism is that purpose is indeterminate. When bills are introduced to the
parliament, they cater to different sections of society.
iii. One more criticism is that there is an omission of certain other values.
e. Purposivism ignores the text and only looks at the purpose behind the statute. The sources
that can be looked at to identify the purpose behind the text are varied (parliamentary
debates, media, etc.). One cannot ignore interpretation of natural justice. Judges should not
stick to one interpretive model but should look at others too.
3. Textualism –
a. Acts as judicial restraint so that judges do not engage in lawmaking and they confine
themselves to the text.
i. One way of looking at it is only interpreting the text.
ii. Second way is that you use the text as a guide for finding intent and purpose behind
the text.
b. Criticism is that it is indeterminate. Texts can be difficult to decipher because words go
through change over time.
c. There could be varied meaning to texts and that is why textualism alone fails. Text is given
primacy. ‘

Problems with the theories:

1. First, each rests upon questionable premises about the nature of interpretation and the legislative
process.

2. Second, none can systematically produce determinate results in the "hard cases," which
undermines their claims to "objectivity."

3. Third, although each theory rests upon and subserves important values that should be
considered when interpreting statutes, no theory persuades us that its cluster of underlying
values is so important as to exclude all others.

4. Intentionalism: To talk about the "intent" of the legislature, as that term is normally used,
multiplies these difficulties, because we must ascribe an intention not only to individuals, but
to a sizeable group of individuals-indeed, to two different groups of people. This notion of
conventional intent, however, may be inconsistent with the actual operation of the legislative
process. Committee members and bill sponsors are not necessarily representative of the entire
Congress. As a formal matter, therefore, a method of statutory interpretation that finds the
meaning of a statute in the views of a committee and sponsors might seem close to the
fragmented law- making that Chadha denounced. In short, both actual and conventional
approaches to legislative in- tent rest upon flawed assumptions about the legislative process.
Moreover, even if it could be discovered, the intent of the House is not the intent of Congress.
Whatever inferences one draws about the intent of the House must somehow be matched to the
intent of the Senate. A similar debate about affirmative preferences occurred in the Senate, with
similar posturing by interested Senators. In addition to the actual and conventional approaches
to intentionalism is the version articulated by Judge Posner, "imaginative reconstruction."
First, the theory rests upon the questionable assumption that judges will be able to recreate the
historical understanding of a previous legislature. Modem historiography suggests that a
present-day interpreter can never completely or accurately reconstruct past understandings.3 2
Facts about the past are without meaning until they are woven together into a narrative by the
historian (orjudge). In Weber, for example, the majority and dissenting Justices saw themselves
as amateur historians, imaginatively reconstructing the answer to the interpretive puzzle. The
majority and the dissenting opin- ions looked at the same evidence and yet told vastly different
stories of what the Civil Rights Act meant, both generally and specifically in connection with
affirmative action.
 Second, Judge Posner's theory is indeterminate, because it often asks counterfactual questions
of a long-departed legislature. In the hard cases, the interpretive issue will not have been
precisely antici- pated by the legislature.
Third, Judge Posner's focus on reconstructing original legislative intent slights other values that
we should respect when interpreting statutes.

5. Purposivism: As an alternative to intentionalism, purposivism has been rather successful, and

some commentators believe that it is now the "traditional" theory of statutory interpretation.
The Supreme Court appears to rely on this approach frequently, as it did in Weber, to reject
interpretations that, while plausibly grounded in statutory text and his- tory, would "'bring about
an end completely at variance with the purpose of the statute.'
But it was a plausible working assumption for the legal community in the 1950s, given the state
of political science. Modem political theory, especially public choice theory, renders the
political theory assumptions of purposivist statutory interpretation highly controversial. It
seems clear not only that reasonable people in the legislature do not always produce reasonable
results, but that in some cases that is the last thing they want to do. Some statutes are little else
but backroom deals. Judicial attempts to fancy up those deals with public-regarding rhetoric
either are naive or simply substitute the judge's conception of public policy for that of the
legislature
Moreover, it is argued, citizens ought to be able to rely on clear statutory text to determine their
rights and duties. For this last reason in particular, the Supreme Court often finds the
intentionalist and the purposivist approaches insufficient and purports to rely simply on the
statutory text

6. Textualism: There are at least two varieties of textualism. The stricter version posits the
statutory text as (at least ordinarily) the sole legitimate inter- pretive source. A characteristically
pithy Holmesianism says it well: "We do not inquire what the legislature meant; we ask only
what the statute means." The second, and less ambitious, variety of textualism uses statutory
language not in place of, but rather as the best guide to, legislative intent or purpose.
Textualism can control statutory interpretation only if the text itself offers a complete and
reasonably determinate source of meaning. This proposition has long been contested, and it is
more controversial than ever today. Whether or not language itself is intrinsically
indeterminate, one would have to concede that general, politicized terms such as
"discrimination" are susceptible of different interpretations. Even those who agree with us that
"discrimination" in Weber is not textually determinate might argue that the double wages statute
in Griffin is determinate, because it is more detailed and does not use terms that have a rich
variety of connotations. But is that so? The statute says the owner "shall pay to the seaman a
sum equal to two days' pay for each and every day during which payment is delayed beyond
the re- spective periods." The statute does not explicitly provide that "there shall be no
diminishment of such recovery of double wages for any rea- son whatsoever." Like statutes of
limitations which employ similarly broad and mandatory terms, the penalty statute could be
interpreted to permit judicial tolling of the double wage award, with no greater vio- lence to the
statutory language.
A final problem undercuts textualism: the importance of the inter- preter's own context,
including current values. Philosophy and literary theory suggest to us that interpretation cannot
aspire to universal objectivity, since the interpreter's perspective will always interact with the
text and historical context. Had we been presented with the Weber issue in 1964, we might well
have agreed that affirmative action was neither necessary nor proper under Title VII, for we
 might have been filled with hopeful expectation that Title VII would engender color- and sex-
blind hiring decisions and would integrate blacks and other groups into the workforce.

Eskridge’s Practical Reasoning Model of Statutory Interpretation:

® In formulating her pre-understanding of the statute and in testing it, the interpreter will value
more highly a good argument based on the statutory text than a conflicting and equally strong
argument based upon the statutory purpose.

® Second, the model suggests the degree of abstraction at each source. The sources at the bottom
of the diagram involve more focused, concrete inquiries, typically with a more limited range of
arguments. As the interpreter moves up the diagram, a broader range of arguments is available,
partly because the inquiry is less concrete.

® In formulating and testing her understanding of the statute, the interpreter will move up and
down the diagram, evaluating and comparing the different considerations represented by each
source of argumentation.

It is funnel-shaped for three reasons:

® First, the model suggests the hierarchy of sources that the Court has in fact assumed. For
example, in formulating her pre-understanding of the statute and in testing it, the interpreter
will value more highly a good argument based on the statutory text than a conflicting and
equally strong argument based upon the statutory purpose.

® Second, the model suggests the degree of abstraction at each source. The sources at the bottom
of the diagram involve more focused, concrete inquiries, typically with a more limited range of
arguments. As the interpreter moves up the diagram, a broader range of arguments is available,
partly because the inquiry is less concrete.

® Third, the model illustrates the pragmatistic and hermeneutical insights explained above In
formulating and testing her understanding of the statute, the interpreter will move up and down
the diagram, evaluating and comparing the different considerations represented by each source
of argumentation.
Why this model is needed:

® First, statutory interpretation involves creative policymaking by judges and is not just the
Court's figuring out the answer that was put "in" the statute by the enacting legislature. An
essential insight of hermeneutics is that interpretation is a dynamic process, and that the inter-
preter is inescapably situated historically. "Every age has to understand a transmitted text in its
own way," says Gadamer.

® Second, because this creation of statutory meaning is not a mechani- cal operation, it often
involves the interpreter's choice among several competing answers. Although the interpreter's
range of choices is somewhat constrained by the text, the statute's history, and the circum-
stances of its application, the actual choice will not be "objectively" de- terminable;
interpretation will often depend upon political and other assumptions held by judges

® Third, when statutory interpreters make these choices, they are nor- mally not driven by any
single value-adhering to majoritarian com- mands or encouraging private reliance on statutory
texts or finding the best answer according to modem policy-but are instead driven by multiple
values

The Model:

1. Textual Consideration – Assumption is that statutory text is the most authoritative interpretive
criterion. The text is most often the starting point for interpretation, and textual arguments carry
the greatest argumentative weight. Formally, all that is enacted into law is the statutory text,
and at the very least legislative supremacy means that an interpreter must be attentive to the
text. Functionally, citizens and lawmakers will rely on the apparent meaning of statutory texts.
Textual primacy can also be a useful concrete limit on judicial power.

2. Historical Consideration – Evidence of the statute's background, together with the text, at
least suggests the original meaning of the statute. To the extent that the Court can recover that
original meaning, it sub-serves democratic values by enforcing the law as the legislature
understood it, thus limiting judicial discretion and power. Moreover, citizens and policymakers
often rely on these original expectations, especially when they reflect careful compromises.
Historical considerations are more abstract and less authoritative than textual evidence. The
expectations and intentions of a large collection of people, acting some time ago, are difficult
to discover, and reliance on these expectations is neither as reasonable nor as likely as reliance
upon a statute's text. The most authoritative historical evidence is the legislative history of the
statute, because it is a contemporary record made by the enacting legislators.

3. Legislative Purpose - The next interpretive focus is legislative purpose, the legal process
inquiry. The counterfactual assumptions underlying this approach that statutes are conclusively
presumed to be purposive acts, that legislators are reasonable people pursuing the public interest
in reasonable fashion make this approach too abstract to be a controlling theory of statutory
interpretation. Several original purposes are apparent, and they push the interpreter in different
directions. Several original purposes are apparent, and they push the interpreter in different
directions. In these instances, the inquiry goes beyond the original purposes and asks, as the
Court did in Weber, what purpose the interpreter should "attribute" to the statute. This
attribution of purpose will inevitably be influenced by the interpreter's current context and the
 evolution of the statute over time. Question is what purpose the interpreter should "attribute" to
the statute. This attribution of purpose will inevitably be influenced by the interpreter's current
context and the evolution of the statute over time.

4. Evolutive Considerations - These are highly abstract inquiries having less connection to text
and legislative expectations, and hence less authority in a democracy. Yet these inquiries are
pertinent, because the enactment of statutes is part of a dynamic process. Implementation
changes the statute, because the statute must be applied – and often subtly redirected – to meet
variations of the problem not originally anticipated. Maganlal Chhaganlal (P) Ltd. v.
Municipal Corpn. of Greater Bombay, (1974) 2 SCC 402 – Para 22 - “As in life so in law
things are not static. Fresh vistas and horizons may reveal themselves as a result of the impact
of new ideas and developments in different fields of life. Law, if it has to satisfy human needs
and to meet the problems of life, must adapt itself to cope with new situations. Nobody is so
gifted with foresight that he can divine all possible human events in advance and prescribe
proper rules for each of them. There are, however, certain verities which are of the essence of
the rule of law and no law can afford to do away with them. At the same time it has to be
recognized that there is a continuing process of the growth of law and one can retard it only at
the risk of alienating law from life itself.”

5. Current Values – Statutory interpretation will consider current values, such as ideas of
fairness, related statutory policies, and (most important) constitutional values. Clear
inconsistency with current values, we argue, is akin to absurdity. Consideration of these values
has in fact exercised an important gravitational pull in statutory cases. Badshah v. Urmila
Badshah Godse, (2014) 1 SCC 188, Para 16 – “The law regulates relationships between
people. It prescribes patterns of behaviour. It reflects the values of society. The role of the court
is to understand the purpose of law in society and to help the law achieve its purpose. But the
law of a society is a living organism. It is based on a given factual and social reality that is
constantly changing. Sometimes change in law precedes societal change and is even intended
to stimulate it. In most cases, however, a change in law is the result of a change in social reality.
Indeed, when social reality changes, the law must change too. Just as change in social reality
is the law of life, responsiveness to change in social reality is the life of the law. It can be said
that the history of law is the history of adapting the law to society's changing needs. In both
constitutional and statutory interpretation, the court is supposed to exercise discretion in
determining the proper relationship between the subjective and objective purposes of the law.”

Practical Reasoning is drawn from pragmatism and traditions of hermeneutics:

1. Statutory interpretation involves creative decision making by judges. Some amount of judicial
creativity and law making is inevitable.
2. The interpreter has to pick between competing answers.
3. When interpreters make choices, they are not driven by any single command or value.

Judicial discretion is not a power given inherently to judges. The power is judicial review. In literal
interpretation, one cannot go beyond text. In purposive interpretation, one cannot go beyond purpose
but in intentionalism, you can go beyond text and look at intent. Simple exercising discretion does not
amount to law making.
United Steelworks v. Weber (1979)
® The question was with respect to affirmative action; the constitution of the USA does not
expressly provide for it; provisions for affirmative are mostly found in the Civil Rights Act, of
which Section 703(a)(i) states that it is unlawful to discriminate on the basis of race, religion,
sex, etc. they used the formal equality theory
® Issue: Does this allow for positive discrimination? – Section 703(j) – nothing in this section
shall be interpreted as to require any employer to give special treatment to anyone on account
of de-facto racial imbalance in the employer’s workforce. – The Civil Rights Act does not
define what discrimination is. – United Steelworks had a training programme, which admitted
people in the ratio of 1:1 based on race. For each white, a black had to be admitted. Weber
applied for this work, but didn’t get admission. – Issue: Is this policy violative of the non-
discrimination clause? –
® Ruling: The Court ruled that this is not discrimination because: a) White people are being hired
along with black people; b) there is an end goal for this policy; and c) either such policies should
be time-bound or there must an end goal. – According to Eskridge, the judgment falls more
under the funnel of abstraction. – In the USA, there are no quotas allowed for black people.
Instead they have quotas for schools instead of races. This is a smart policy because of the
history of segregation.

Griffin v. Oceanic Constructors –

® Facts: The appellant was injured during his employment and was subsequently discharged. A
few weeks later he was again employed. The respondents from his previous employment
withheld $412. “Every master or owner who refuses or neglects to make payment in the manner
prescribed by law without sufficient cause shall pay to the employee a sum equal to 2 days pay
for each and everyday during which the payment was delayed. This is beyond the actual pay of
the employee.” – This case goes to the court based on this law. –
® Issue: The question is whether the days are counted till he is hired again or till the payment is
made? –
® Ruling: The difference in this case was $6881 v. $302790 – The court found that the text of the
statute is clear, mentioning that the employer’s liability subsists till the payment required to be
made as per law is in fact made.

Bob Jones University v. USA –

® Facts: The university is a non-profit private university. – It prescribes a racially discriminatory
admission policy where only white people are admitted. – Section 501(c)(iii) of the Internal
Revenue Code provided an exemption on tax for religious, charitable or educational
institutions.
® Issue: Whether Bob Jones qualifies for this exemption? –
® Ruling: SCOTUS unanimously decided that there should be no exemption upheld for the
university, because such exemptions were for those institutions that are contributing towards
welfare of the society. They looked at the specific and general legislative history although it
goes directly against statutory text.

The analysis in Part I not only shows that the leading foundationalist theories are flawed, but it also
suggests an alternative to these views of statutory interpretation.
In what follows, we build a positive descriptive theory of statutory interpretation from an analysis of
the Court’s actual practice in statutory interpretation cases, such as Weber, Griffin, and Bob Jones, and
from our interpretation of the pragmatic and hermeneutical traditions in philosophy.
This positive theory only seeks to make sense out of the Court's practice in statutory interpretation, in
ways that foundationalism cannot. We reserve for Part III our normative evaluation of the Court's
practice.
Weber, Griffin, and Bob Jones illustrate our theoretical critique and suggest that the Supreme Court
does not follow any one of the foundationalist theories.
® Consider Bob Jones in this light. The exemption for “charitable” institutions is a broad
legislative message whose specific implementation has been left to the Internal Revenue
Service (IRS). In the early twentieth century, when Plessy was still good law, it might have
been appropriate to include segregated academies among the institutions that receive the
exemption.
® But in the Brown era, our society's commitment to racial and ethnic integration put pressure on
the IRS to rethink the application of the exemption to institutions that perpetuated segregation.
® The IRS for several years left in place an interpretation that allowed the exemption for such
institutions. But the background tradition and the political context was changing dramatically
in that period, and those changes eventually impelled the IRS to change its position in 1970 and
1971.
® When the Supreme Court sustained that decision in Bob Jones, it too was making a practical
judgment that the national policy against racial discrimination outweighs the reliance interests
built around the earlier interpretation and that the political system had acquiesced in the new
IRS position. There are good arguments against this interpretation of the statute in Bob Jones,
and many of them are set forth in Justice Rehnquist’s dissenting opinion.
® But, as Justice Powell suggested in his concurring opinion, the Court's political judgment was
a defensible one, even if not the inevitable one.
One's view of the correctness of the Court's decision is strongly influenced by one's views about the
breadth of Brown, the deference courts should show to the agency, and other political pre-
understandings. However, when one votes in a case like Bob Jones, one is making a political choice,
or, more accurately, a cluster of choices.
In many cases of statutory interpretation, of course, the threads will not all run in the same direction.
The cable metaphor suggests that in these cases the result will depend upon the strongest overall
combination of threads. That, in turn, depends on which values the decision-makers find most
important, and on the strength of the arguments invoking each value.
For most of the Supreme Court Justices, a persuasive textual argument is a stronger thread than an
otherwise equally persuasive current policy or fairness argument, because of the reliance and legislative
supremacy values implicated in following the clear statutory text. And a clear and convincing textual
argument obviously counts more than one beclouded with doubts and ambiguities.
To interpret the statute in Griffin, for example, the interpreter will look at the text and the legislative
history and the purpose and current values. But to evaluate the text, the interpreter will consider it in
light of the whole enterprise, including the history, purpose, and current values.
In other words, none of the interpretive threads can be viewed in isolation, and each will be
evaluated in its relation to the other threads.
 Anton Scalia, The Dissenting Opinion

In his lecture, Antonin Scalia seeks to address Dissenting Opinions i.e., opinions that disagree with the
courts reasoning. For him, there is little difference between concurrences and dissents because an
opinion that gets the reasoning wrong, gets everything wrong. He even borrows a line from T.S Elliots
Murder in the Caterdral to say that “That would be the greatest treason of all, to do the right things but
for the wrong reasons.”

The author makes a clear distinction between genuine concurrences (the only kind of concurrences that
he talks about in his speech) and concurrences that are only written to say the same thing but to say
them better than the court has or merely to display the judges feelings before the court (he doesn't
approve of this and says that it is the only argument against not allowing concurring opinions at all).

Kings bench and other common law courts: Each judge would give their opinion.
Chief Justice John Marshal: He came up with the system that we use wherein one of the judges
announces the opinion of the court.

Dissents from the signed opinion "for the Court' were very rare at first. The new system instituted under
Marshall made Thomas Jefferson furious. In an 1820 letter, Jefferson complained about opinions
"huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent
acquiescence of lazy or timid associates, by a crafty chief judge, who sophisticates the law to his mind,
by the turn of his own reasoning.

The judges holding their offices for life are under two responsibilities only.
1. Impeachment
2. Individual reputation.
But this practice of unanimous opinion] completely withdraws them from both. For nobody knows what
opinion any individual member gave in any case, nor even that he who delivers the opinion, concurred
in it himself. Be the opinion therefore ever so im-peachable, having been done in the dark it can be
proved on no one. As to the 2d guarantee, personal reputation, it is shielded completely. The practice is
certainly convenient for the lazy, the modest and the incompetent. It saves them the trouble of
developing their opinion methodical and even of making up an opinion at all.

In assessing the advantages and disadvantages of separate opinions, one must consider their effects both
within and without the Court.

The foremost and undeniable external consequence of a separate dissenting or concurring opinion is to
destroy the appearance of unity and solidarity.

Justice WiNiam Johnson, he not only went along with opinions that were contrary to his own view, but
even announced some.' Only towards the end of his career- when his effort to suppress opinions had
plainly failed did he indulge himself in dissents:

In more recent times, no less a judicial personage than Judge Learned Hand warned that a dissent
"cancels the impact of monolithic solidarity on which the authority of a bench of judges so largey do-
pends."!!
I do not think I agree with that. It seems to me that in a democratic society the authority of a bench of
judges, like the authority of a legislature, or the authority of an executive officer, depends quite simply
upon a grant of power from the people. And if the terms of the grant are that the majority vote shall
prevail, then chat is all the authority that is required

But to say that the authority of a court depends upon such unanimity in my view overstates the point.
In fact, the argument can be made that artificial unanimity the suppression of dissents- de-prives genuine
unanimity of the great force it can have when that force is most needed. Supreme Court lore contains
the story of Chief Justice Warren's heroic and ultimately successful efforts to obtain a unanimous Court
for the epochal decision in Brown v. Board of Education.12 I certainly agree that unanimity helped to
produce greater public acceptance. But would it have had that effect if all the decisions of the Supreme
Court, even those decided by 5-4 vote, were announced as unanimous? Surely not.

Perhaps things are different when a newly established court is just starting out. Or perhaps they were
different, even for a well established court, in simpler, less sophisticated, less bureaucratic times. But I
have no doubt that for the Supreme Court of the United States, at its current stage of development and
in the current age, announced dissents augment rather than diminish its prestige.

Unlike a unanimous institutional opinion, a signed majority opinion, opposed by one or more signed
dissents, makes it clear that these decisions are the product of independent and thoughtful minds, who
try to persuade one another but do not simply "go along" for some supposed "good of the institution."

I think dissents augment rather than diminish the prestige of the Court for yet another reason. to look
back and realize that at least some of the Justices saw the danger clearly, and gave voice, often eloquent
voice, to their concern. in Plessy v. Ferguson," the case essentially overruled by Brown v. Board of
Education a half century later, which held that the state of lousiana could require railroads to carry white
people and black people in separate cars. However in the eyes of the law there is no superior and
dominant race or class of citizens. Furthermore, judstice jacksons dissent in korematsu v United States
said that a military order however unconstitutional is not apt to last longer than military emergency.

The second external consequence of a concurring or dissenting opinion is that it can help to change the
law. That effect is most common in the decisions of intermediate appellate tribunals. they should not
too readily adopt the same legal rule.

And if they do not, of course if they are persuaded by the view set forth in his dissent, pressed upon
them by counsel in some later case "conflict" among the Circuits will result, ultimately requiring
resolution by the Supreme Court's grant of a petition for certiorari. At the Court of Appeals level, a
dissent is also a warning flag to the Supreme Court: the losing party who seeks review can point to the
dissent as evidence that the legal issue is a difficult one worthy of the Court's attention. At the Supreme
Court level, on the other hand, a dissent rarely helps change the law. Even more rarely does a separate
concurring opinion have the effect of shaping the future law-rarely but not never.

Sometimes, the formulation, rather than the opinion of the Court like in Katz, is repeatedly cited in later
cases; it has become the classic (if somewhat circular) statement of Fourth Amendment protection.

The dissent most likely to be rewarded with later vindication is, of course, a dissent that is joined by
three other Justices, so that the decision is merely a 5-4 holding. doctrine of stare decisis is less
rigorously observed) emboldens counsel in later cases to try again, and to urge an overruling. For
example, one that involves the Free Exercise Clause ofthe First Amendment: Four Terms ago, in a case
called Employment Division v. Smith, the Court held that this did not form the basis for a private
exemption from generally applicable laws governing conduct-so that a person could not claim a right
to use a proscribed psychotropic drug (peyote) in religious ceremonies. There again, the decision on the
point was 5-4, making clear to one and all (and to future litigants, in particular) that this is a controverted
and thus perhaps changeable portion of our jurisprudence. This is not to suggest, by the way, that every
5-4 decision of our Court is a candidate for future overruling. Furthermore, we usually do not revisit
such points in statutory law no Matter how closely it was divided. But even there, disclosure of the
closeness of the vote provides useful information to the legal community, suggesting that the logic of
the legal principle at issue has been stretched close to its utmost limit, and will not readily be extended
further.

Sometimes there might be exaggerations in the dissent. But it is always within the power of the Justice
writing the Court's opinion to disavow the exaggerations and distortions of the dissent, and to make
clear the precise scope of the holding. Which is one reason why it is my practice, when writing for the
Court, always to respond to the dissent, rather than to adopt the magisterial approach of ignoring it. (It
produces, or at least facilitates, a sort of vote-counting approach to significant rules of law. Whenever
one of the five Justices in a 5-4 constitutional decision has been replaced there is a chance, astute counsel
must think, of getting that decision overruled.

The third consequence: By enabling, indeed compelling, the Justices of the Court, through their
personally signed majority, dissenting and concurring opinions, to set forth clear and consistent
positions on both sides of the maior legal issues of the day, it has kept the Court in the forefront of the
intellectual development of the law. in our system, it is not left to the academicians to stimulate and
conduct discussion concerning the validity of the Court's latest ruling.

The Court itself is not just the central organ of legal judgment; it is center stage for significant legal
debate. In our law schools, it is not necessary to assign students the writings of prominent academics.
Supreme Court dissents convey knowledge, not only about what legal issues are current, but also about
what legal controversies are timeless.

Internal Consequences - Their Effect on the Court Itself

1. Let me assure you at the outset that they do not, or at least need not, produce animosity and bitterness
among the members of the Court.
Needless to say, none of the Justices of my Court would take such umbrage at a dissent. In part that is
because we come, as I have described, from a tradition in which each judge used to write his own
opinion. Indeed, if one's opinions were never dissented from, he would begin to suspect that his
colleagues considered him insipid, or simply not worthy of contra-diction.

2. The most important internal effect of a system permitting dissents and concurrences is to improve
the majority opinion. - To begin with, the mere prospect of a separate writing renders the writer of the
maiority opinion for receptive to reasonable suggestions on major points. human nature being what it
is, nothing causes the writer to be as solicitous of objections on major points as the knowledge that, if
he does not accommodate them, he will not have a unanimous court, and will have to confront a separate
concurrence.
3. The second way in which separate opinions improve the majority opinion is this: Though the fact
never comes to public light, the first draft of a dissent often causes the majority to refine its opinion,
eliminating the more vulnerable assertions and narrowing the announced legal rule. nothing gives me
as much assurance that I have written it well as the fact that 1 am able to respond satisfactorily (in my
judg-ment) to all the onslaughts of the dissents or separate concurrences. The dissent or concurrence
puts my opinion to the test, providing a direct confrontation of the best arguments on both sides of the
disputed points. It is a sure cure for laziness, compelling me to make the most of my case. Ironic as it
may seem, I think a higher percentage of the worst opinions of my Court-not in result but in reasoning
are unanimous ones.

4. And finally, the last way in which a separate opinion can improve the majority opinion is by becoming
the majority opinion.

5. Besides improving the Court's opinions, I think a system of separate writing improves the Court's
judges. It forces them to think systematically and consistently about the law, because in every case their
legal views are not submerged within an artificially unanimous opinion but are plainly disclosed to the
world. Even if they do not personally write the majority or the dissent, their name will be subscribed to
the one view or the other. They cannot, without risk of public embarrassment, meander back and forth
today providing the fifth vote for a disposition that rests upon one theory of law, and tomorrow
providing the fifth vote for a disposition that presumes the opposite.

6. Finally, and to me most important of all, a system of separate opinions renders the profession of a
judge- and I think even the profession of a lawyer more enjoyable. One of the more cantankerous of our
Justices, Justice William O. Douglas, once wrote that "the right to dissent is the only thing that makes
life tolerable for a judge of an appellate court. I am not sure I agree with that, but I surely agree that it
makes the practice ofone's profession as a judge more satisfying. To be able to write an opinion solely
for oneself, without the need to accommodate, to any degree whatever, the more-or-less-differing views
of one's colleagues; to address precisely the points of law that one considers important and no others;
to express precisely the degree of quibble, or foreboding, or disbelief, or indignation that one believes
the majority's disposition should engender that is indeed an unparalleled pleasure.

Antonin Scalia, The Dissenting Opinion

• Justice Antonin Scalia argues that the rarity of dissents from court completely withdraws from
the point of judges holding their office- “For nobody knows what opinion any individual
member gave, and the practice is certainly conveniently for the lazy, the modest and the
incompetent.”
• In assessing the advantages and disadvantages of separate opinions, one must consider their
effects both within and without the Court. Let me discuss the latter first: The foremost and
undeniable external consequence of a separate dissenting or concurring opinion is to destroy
the appearance of unity and solidarity. However, Scalia does not agree with this view. In
fact, the argument can be made that artificial unanimity- the suppression of dissents- deprives
genuine unanimity of the great force it can have when that force is most needed. United States
Supreme Court lore contains the story of Chief Justice Earl Warren's heroic and ultimately
successful efforts to obtain a unanimous Court for the epochal decision in Brown v. Board of
Education, which prohibited racial segregation in all public education. However, not every
decision is met with such unanimity, especially those which are 5:4 majority (or not
unanimous but majority nonetheless).
 • I think dissents augment rather than diminish the prestige of the Court for yet another reason.
I think, for example, ofthe prophetic dissent of Justice John Marshall Harlan (the earlier
Justice Harlan) in Plessy v. Ferguson (the case essentially overruled by Brown v. Board of
Education a half century later) which held that, despite the provision of the Constitution
requiring equal protection of the laws, the State of Louisiana could require railroads to carry
white people and black people in separate cars.
• External consequences of dissent and concurring opinion:
1. Help to change the position of law when incorporated in a future majority opinion;
2. Help to change the law- Justice Harlan's separate concurrence in Katz v. United States,
which held that our constitutional protection against "unreasonable searches and seizures"
forbade the police from eavesdropping upon a telephone conversation conducted from a
public phone booth. That formulation, rather than the opinion of the Court in Katz, is
repeatedly cited in later cases, and has become the classic (if somewhat circular) statement of
Fourth Amendment protection.
• Internal consequences of dissent and concurring opinion:
1. Majority opinions are more receptive to reasonable suggestions on major points;
2. Improves the majority opinion; when the first draft of a dissent often causes majority to refine
its opinion. Eliminate the more vulnerable assertions and narrowing the announced legal rule;
3. A separate opinion can improve the majority opinion by becoming the majority opinion;
4. A system of separate opinions renders the profession of a judge more enjoyable.

Aharon Barak: Discretion as a Component in Purposive Interpretation

Summary:
® Purposive interpretation involves language, purpose, and discretion. Language sets the limits
of interpretation, while purpose determines the choice of legal meanings, within the boundaries
of language.
® Discretion is necessary when the purpose of the text does not point to a single, unique legal
meaning.
® In ordinary cases, the interpreter should use discretion to formulate, as objectively as possible,
the purpose at the core of the legal text.
® Discretion is a critical component of purposive interpretation and every system of
interpretation.
® However, interpretation must not become entirely a question of interpretive discretion.
® Various systems of interpretation claim to avoid the use of judicial discretion, but every system
of interpretation must base itself on a component of judicial discretion. Without judicial
discretion, there can be no interpretation in law. Discretion should be confined to special
situations. Question arises as to how broad or narrow such discretion should be. Without
judicial discretion, there can be no interpretation in law.

The Essence of Judicial Discretion

® This section discusses the concept of judicial discretion, which is a normative concept and
reflects a situation where a judge must choose among several legal options – it does not reflect
thought, consideration, and deliberation.
 ® The legal system has not determined which option is the right one, so the judge must make this
decision.
® Discretion is the freedom to choose between multiple legal solutions, but each alternative must
be legal.
® The legality, not the effectiveness, of the choice is what creates discretion.
® Again, an alternative is not legal because the judge chooses it; the judge may choose it only
because it is legal.

Judicial Discretion and the Legal Community

® This section discusses the existence of judicial discretion, which occurs when there are legal
problems that have more than one legal solution or contain uncertainty.
® Judges have the power to choose from these alternatives, informed by the professional views
of the legal public.
® In these situations, judges have “the sovereign prerogative of choice,” informed by the legal
community’s fundamental viewpoints, that is, the professional views of the legal public.
® The concept of the "legal community" is imprecise, but important in providing criteria for
determining the legality of alternatives within the range of judicial discretion.

Does Judicial Discretion Exist?

® Dworkin argued that every legal problem has a single legal solution and that judicial discretion
does not exist. He believed that "hard cases" are not really hard, but rather complicated and
require study and consideration to arrive at a single legal solution.
® “It would make no difference to my thesis if instead of saying that there was a single ‘true’
answer in controversial cases I said that there was a single ‘most rea- sonable’ answer.” There,
Dworkin appears to concede that there is more than one single, legal solution because, within
a “range of reasonableness,” there are likely to be a few alternatives that are reasonable and
legal.
® However, in his later writings, Dworkin conceded that within a "range of reasonableness," there
may be a few alternatives that are reasonable and legal.
® From a systemic point of view, there is no single, unique solution, and two judges may reach
opposing, reasonable results.
® Only upon adjudication does a single legal possibility exist. Judicial discretion exists. does not
reflect judicial imperialism but rather uncertainty in law. Law is not mathematics. It is a
normative framework.
® Problems of interpretation are rarely problems of the meaning of one term or phrase. They are
more often than not questions of the interpretation of sentences, or of articles in statutes or in
constitutions, or of moral and political doctrine.
® All too often interpretation is just a matter of reasoning to a reasonable view on the basis of a
variety of considerations, some reinforcing each other, some clashing.
® Judicial discretion exists due to uncertainty in law and is natural to law. Without it, law is a
form with no substance.
® Raz also noted that interpretation often requires reasoning to a reasonable view based on a
variety of considerations, and there is no way to eliminate the need for interpretation that
consists of such reasoning.
Scope of Judicial Discretion
® This section discusses the limitations of judicial discretion, which is not absolute and is subject
to both procedural and substantive restrictions.
® Procedural restrictions require judges to act without bias, treat parties equally, make decisions
based on evidence, explain their decisions, and act objectively. Judges must act without bias.
They must treat the parties equally. They must make decisions based on the evidence presented.
They must explain their decisions. They must act objectively.
® Substantive restrictions require judges to act reasonably, consider the existence of the system
and institutional limitations, and be aware of limited information and unpredictable policy
considerations. They must be aware that the information and available means of processing it
are limited
® The concept of "discretion" is conferred by an authority for a particular purpose and is limited
by particular considerations. Judicial discretion is bounded by what we might call a “zone of
reasonableness.” Judges may not act according to their personal predilections or individual
values, when those are inconsistent with the values of the system.
® Judges never have absolute freedom of choice, and their scope of freedom varies from issue to
issue but is always bounded. Most cases have a single, unique solution, so that judicial
discretion does not exist at all.

Discretion in Purposive Interpretation

® This section discusses the role of judicial discretion in the legal system. While most cases have
a clear and unique solution, some cases require judges to use their discretion within a "zone of
reasonableness" that is bounded by the values of the legal system.
® Judges cannot act based on personal values but must make decisions based on objective
considerations while remaining within the confines of the legal system and judicial tradition.
® This introduces an element of flexibility into the legal system that allows for a balance between
past and present values, as well as between security and progress.

How Do Judges Exercise Discretion?

® This section discusses the nature of judicial discretion and how judges make choices informed
by their personal experiences, judicial philosophy, and constitutional views.
® Judicial choice is the product of the delicate balance in the judge’s soul between the particular
and the general, the individual and society, the human being and his or her environment.
® The judge's personal responsibility is at its peak when making difficult decisions, and justice is
a residual value that guides the interpretive process.
® Justice is a complicated concept but must accompany judges throughout the interpretive process
and guide decisions when facing a situation of judicial discretion.
® Wisdom is a component of discretion in interpretation, and judges should use their wisdom to
find justice. In the absence of rules, each interpreter may use their discretion on the matter.

Judicial Discretion and Pragmatism

® Purposive interpretation involves the consideration of various components to determine
ultimate purpose.
® However, there are junctions where judges exercise discretion and must weigh the pragmatic
consequences of assigning weight to these components.
 ® Purposive interpretation shares similarities with pragmatism in these instances, as judges look
for the best and most reasonable solution while considering the need to balance subjective and
objective purpose. The author personally seeks the most just solution.
® The pragmatic judge is, of course, freer to determine the weight of the various components,
because he or she is unfettered by the need to balance subjective and objective purpose. Where
purposive interpretation does, however, provide for judicial discretion, the judge takes
pragmatic considerations into account, looking for the best and most reasonable solution. I
personally look for the most just solution.

Establishing the Range of Semantic Meanings

® Judicial discretion is present throughout the interpretive process, even with a textualist
approach. Linguistic disputes often become interpretive disputes, requiring discretion to
resolve.
® The interpreter may need to infer implicit meanings, distinguish between natural and ordinary
language and special and extraordinary language, and apply linguistic canons that require
discretion.
® To the extent that semantic meaning is based on a “sense of language,” different linguists may
have different senses. In the field of interpretation, the linguistic dispute becomes an
interpretive dispute, the resolution of which requires discretion. It is naïve to think that a
textualist approach to interpretation will eliminate judicial discretion.
® Judges must sometimes exercise discretion to weigh conflicting interests and determine the
social importance of a value.
® Judicial discretion comes into play when the language is ambiguous or vague and can lead to
multiple subjective purposes; when the circumstances surrounding the text’s creation point to
multiple subjective purposes; when the subjective purpose arising from the language of the text
is out of sync with the subjective purpose arising from the circumstances.
® While it is possible to weigh and balance without exercising discretion, not every case allows
for this.

Determining Objective Purpose:

® Objective purpose operates at various levels of abstraction, each of which implicates its own
kind of discretion. Consider a contract whose objective purpose is the purpose that reasonable
parties would have sought to achieve. Reasonable interpreters may arrive at different results.
Or, consider a text whose objective purpose is determined by the system’s funda- mental values.
An interpreter must use discretion to locate the values and derive objective purpose from them.
® Consider the concepts of “balance” and “weight,” necessary to engage the fundamental values
of a legal system. The technique of balance always leaves room for judicial discretion.
® The principle called “weighing of interests” is merely a formulation of the problem, not a
solution.

Determining Ultimate Purpose

® All the purposes—subjective and objective, vertical and horizontal—appear before the judge.
When they do not point in the same direction, the judge must decide between them.
® This section discusses the role of judges in resolving conflicts between different purposes of
legal texts.
® The current state of interpretive science cannot resolve every conflict, leaving judges with
discretion over many questions.
 ® Purposive interpretation will supplant more areas of judicial discretion, but create new
situations of discretion.
® Interpretation is based on numerous components whose weight cannot be determined in
advance.
® Leaving some room for judicial discretion guarantees change and renewal in the legal system.
® Both static and dynamic methods of resolving disputes are critical to any legal system. It is a
mistake to see only stability or change in law, as the reality is far more complicated.
® We cannot predict how judicial discretion will develop, but we do know that it will never
disappear entirely. Interpretation with- out discretion is a myth.
® In any case, we would want to leave some room for judicial discretion in order to guarantee
change and renewal in the legal system.
® Stability without change breeds sedimentation. Change without stability is anarchy. It is a
mistake to see only stability in law. It is a mistake to think that every problem has only one
legal solution. By the same token, however, it is a mistake to see only change in law.

Barak’s Purposive Interpretation in Law is complex. Its starting point is the rejection of the “free
systems ‘of interpretation’ that allow an interpreter to give a text any meaning he or she desires”. Barak
says legal interpretation is a rational activity that gives legal meaning to the legal text. Barak pleads for
a purposive interpretation, whose goal is to achieve “the purpose that the legal text is designed to
achieve”.Purposive interpretation is based on three components: language, purpose, and discretion.
Language determines the range of semantic possibilities within which the interpreter acts as he or she
chooses the legal meaning of the text from different possibilities, explicit or implied. The purposive
component is essential in the interpretation of a legal text. It implies “the values, goals, interests,
policies, and aims that the text is designed to actualize”.

Finally, Barak recognizes the indispensability of interpretive discretion in determining the ultimate
purpose of the norm: “It is the choice that purposive interpretation gives the judge from among a few
interpretive possibilities, all of which are legal”, in order “to formulate the purpose at the core of the
text”. If there is a statute which on the face of it is non-discriminatory but the intent was discrimination,
ignore that and just look at statute. Judicial discretion is inevitable.

Barak says that interpretation can happen even when text is clear. When interpreters include authors
interpretation, it becomes substantive interpretation. When he says “systems of interpretation”, he
means interpreted rules or foundational theories that are used in interpretation. To find what system
works best, it depends on the legal system. There is subjective and objective interpretation.

Subjective – The subjective purpose constitutes the values, goals, interests, policies, aims, and function
that the specific constitution maker sought to actualize. Generally speaking, “it is its psychobiological
intent, not the intent of a reasonable person”, which an interpreter learns “through the language of the
text as a whole and the circumstances external to it, like the history of its creation”.Barak does not deny
that things get more complicated in constitutional law, in general, when the author of a text is a multi-
member body. Such is the case for a constitution adopted by members of a constitutional assembly. The
author of the text is the abstract legal entity (the assembly).Nevertheless, “an interpreter should not seek
the motivations that propelled the members of the legislative body to vote in favour of the statute but
rather should focus on the general objectives they sought to achieve”.
Objective – The objective purposes of a constitution are “the values, goals, interests, policies, aims, and
function that the text should actualize in a democracy”.It is a legal construction which operates at
different levels of abstraction.
a. Author’s Hypothetical Intent - The interpreter puts himself or herself in the constitution maker’s
shoes – in the historical reality of the time the text was created – looking for the purpose that it
would have held, had the present issue emerged. This reconstruction is not without challenges
as the constitution maker may not have been able to give an answer, had the question in fact
been posed at the time of writing, because its spiritual world is different from the one that
produced the unresolved interpretive issue. Still, the interpreter, Barak insists, uses his or her
imagination as best he or she can. An interpreter learns the constitution maker’s hypothetical
intent and the objective purpose of the constitutional text by studying the history and
environment that created it.
b. “The term ‘reasonable person’ takes us from the hypothetical intent of the individual author to
the hypothetical intent of the ideal author who reflects the proper balance between the system’s
values and principles, as it exists for someone situated in the position of the real author”. The
individual constitutional provision being interpreted does not stand alone. It constitutes part of
the broader constitutional layout. It influences the understanding of the constitution as a whole.
The constitutional entirety, in turn, influences the meaning of the individual provision within
it.
c. Purpose derived from type and nature of text – The third highest level of abstraction disengages
not only from the individual constitution maker but from the given constitution as well. The
interpreter asks not what (objective) purpose ought s/he attribute to the reasonable constitution
maker, but rather what typical purpose characterizes a certain kind of constitution. S/he looks
at the type and nature of the legal institutions in question. The interpreter draws inspiration for
this level of abstraction from the ideas and concepts of the culture and legal tradition to which
the given legal system belongs.
d. It is not always easy to grasp fundamental principles. They vary from legal system to legal
system and from era to era. According to Barak, there are generally three kinds of basic
principles, which may overlap: “ethical principles (like justice, morality, fairness, good faith,
human rights); societal objectives (like the preservation of the state and its democratic
character, public peace and security, separation of powers, rule of law, judicial independence,
consistency and harmony in law, certainty and security in interpersonal arrangements,
realization of reasonable expectations, human rights); and patterns of behaviour (like
reasonableness, fairness, good faith).

Formulating the ultimate purpose –

1. First, a proper relationship should be established between the subjective and objective purpose
in formulating constitution’s ultimate purpose. According to Barak, “the intent of the
constitutional founders (abstract subjective intent) remains important. We need the past to
understand present. […] It is not however decisive. Its weight is substantial immediately
following the founding, but as time elapses, its influence diminishes”. The purposive
interpretation of constitutional texts favours objective purpose in constitutional interpretation.
2. Second, the internal relationship between various objective purposes should be clarified. The
lines between different levels of abstraction of the objective purpose are sometimes fluid.
Equally, there is no pre-established order for referring to various levels. Each interpreter may
start with the level that appears most appropriate to him or her, so long as all the levels are
evaluated. Accordingly, there is no hierarchy between different levels. Purposive interpretation
seeks to achieve synthesis and integration in the context of different presumptions.
Interpretations cannot be changing law or creating law. There are a few limits to interpretation which
restrict judicial discretion – could be language, structure (some parts of statutes serve as guiding
principles), rationality (judges have to give reasons for their outcome and if no reasons given, it will be
arbitrary).
Lawmakers cannot take away power of judicial discretion and interpretation by judiciary (building on
idea of separation of powers). Barak says every legal system has interpretive rules and legal community
influences interpretive rules.
 PART B
WEEK 6

Literal Rule
® Under this rule the judge considers what the statute actually says, rather than what it might mean.
® In order to achieve this, the judge will give the words in the statute a literal meaning, that is, their
plain ordinary everyday meaning, even if the effect of this is to produce what might be considered
as an otherwise unjust or undesirable outcome.
® The literal rule says that the intention of Parliament is best found in the ordinary and natural
meaning of the words used.
® The intent should be to pay attention to the general meaning. If you can’t find it, then find other
recourses such as the ground and cause of making the statute - look at the preamble and look at
the intention.
® Applies when statute is clear and not ambiguous. Give plain meaning to words.
Scientific/technical/local/cultural meaning will not be preferred over ordinary meanings unless
statute expressly directs one to use the technical meaning. Exact meaning preferred over loose
meaning. If multiple meanings exist, judges can choose preferred meaning and read text in that
context. According to this rule, when a word does not contain any definition in a statute, it must be
given its plain, ordinary, and literal meaning. If the word is clear, it must be applied, even though
the intention of the legislature may have been different or the result is harsh or undesirable. The
literal rule is what the law says instead of what the law means. The natural and ordinary meaning
of the word should not be departed from unless it is shown that the context requires it. The context
can require it in 2 ways - if it results in a contradiction in the statute or absurdity.

BN Mutto v. TK Nandi (1979) 1 SCC 361

Facts:
® A government servant (B.N. Mutto) was residing in a government-allotted accommodation and his
own house was leased to the respondent (T.K. Nandi).
® Later on, the government took the decision that government servants who own houses in the locality
should vacate the government accommodation. However, before the order of government to vacate
the premises, he had retired from the service.
Issue:
The question arose whether he can get the benefit of sec. 14A, and Sec. 25b(5) of the Delhi Rent Control
Act.
Ruling:
® Para 12 - The important question that arises for consideration is whether the landlord who retired
from service on November 30, 1975 before the Ordinance came into force could avail himself of
the provisions of Section 14-A(1). A reading of Section 14-A discloses that a right to recover
immediate possession of premises accrues to certain persons if the requisite conditions are satisfied.
The conditions are:
1. The landlord must be in occupation of any residential premises allotted to him by the
Central Government or any local authority;
2. Such landlord is required by a general or special order made by the Government or authority
to vacate such residential accommodation or in default to incur certain obligations on the
ground that he owns in the Union territory of Delhi, a residential accommodation either in
his own name or in the name of his wife or dependent child.
 If the aforesaid conditions are satisfied a right shall accrue to such a landlord on and from the
date of such order to recover immediate possession of any premises let out by him. It may be
noted that the section does not require that the person who is in occupation of the premises
allotted by the Government should be a government servant.
o It is necessary that the person is required by the Government or authority to vacate such
accommodation imposing certain consequences in the event of his not vacating.
o The policy decision taken by the Government on September 9, 1975, only related to
government servants who were in occupation of premises allotted to them by the
Government.
o If the government servant had another house in the locality he was to vacate within 3
months from October 1, 1975.
® Para 13 - The question therefore squarely arises in this case as to whether a government servant
who retired before the notice was served on him requiring him to quit the Government
accommodation is entitled to the benefit of Section 14-A(1).
® Para 14 – The Court has to determine the intention as expressed by the words used. If the words of
statutes are themselves precise and unambiguous then no more can be necessary than to expound
those words in their ordinary and natural sense. The words themselves alone do in such a case best
declare the intention of the lawgiver. Taking into account the object of the Act there could be no
difficulty in giving the plain meaning to the word “person” as not being confined to government
servants for it is seen that accommodation has been provided by the Government not only to
government servants but to others also. In the circumstances, the Court cannot help giving the plain
and unambiguous meaning to the section. It may be that the retired government servants as well as
others who are in occupation of Government accommodation may become entitled to a special
advantage.
® Para 15 – The next question that arises is whether the rights conferred under Section 14-A(1) are
available to premises that had been let for residential as well as professional purposes. It is admitted
that the premises were let for residential as well as professional purposes. Section 14(1)(e) requires
that in order to avail the provisions of Section 14(1)(e) the premises should be “let for use as a
residence”.
® Para 16 – It is not necessary for us to go into the question whether the words “let for residential
purposes” would exclude premises let predominantly for residential purposes with a licence to use
an insignificant part for professional purposes such as lawyer's or doctor's consulting room……The
requirement in Section 14(1)(e) that in order to enable the landlord to recover possession the
premises ought to have been let for residential purposes is not there in Section 14-A(1). In this view,
we agree with the High Court that it is not necessary in a petition for eviction under Section 14-A
to satisfy that it was let for residential purposes only.

Ramavtar Budhaiprasad v. Assistant Sales Tax Officer, AIR 1961 SC 1325

The question before the court was whether the sale of betel leaves was subject to sales tax. The appellant
contended that no such tax could be levied as betel leaves were vegetables on the sale of which no tax
could be imposed.
The appellant referred to the dictionary meaning of vegetable which says that a vegetable is that which
is pertaining to, comprised or consisting of, or derived, or obtained from plants or their parts.
Literal interpretation to be given to “vegetables” and must be understood the way it is used in common
parlance. Betel leaf not vegetable as per Court and so will be taxed. The Supreme Court, while rejecting
the contention, held that betel leaves could not be given dictionary, technical or botanical meaning when
the ordinary meaning is clear and unambiguous. Its sale is, therefore, liable to sales tax.
® Para 3 – The intention of the legislature in regard to what is vegetables is shown by its specifying
vegetables and betel leaves as separate items in the Schedule exempting articles from Sales Tax.
Subsequently, betel leaves were removed from the Schedule which is indicative of the legislature's
intention of not exempting betel leaves from the imposition of the tax. But it was submitted that
betel leaves are vegetables and therefore they would be exempt from Sales Tax under Item 6.
Reliance was placed on the dictionary meaning of the word “vegetable” as given in Shorter Oxford
Dictionary where the word is defined as “of or pertaining to, comprised or consisting of, or derived,
or obtained from plants or their parts”. But this word must be construed not in any technical sense
nor from the botanical point of view but as understood in common parlance. It has not been defined
in the Act and being a word of everyday use it must be construed in its popular sense meaning “that
sense which people conversant with the subject matter with which the statute is dealing would
attribute to it”. It is to be construed as understood in common language……Therefore apart from
the fact that the legislature by using two distinct and different items i.e. Item 6 “vegetables” and
Item 36 “betel leaves” has indicated its intention, decided cases also show that the word
“vegetables” in taxing statutes is to be understood as in common parlance i.e. denoting class of
vegetables which are grown in a kitchen garden or in a farm and are used for the table.
® "In our opinion, the word "vegetables" cannot be given the comprehensive meaning the term bears
in natural history and has not been given that meaning in taxing statutes 1327 before. The term
"vegetables" is to be understood as commonly understood denoting those classes of vegetable
matter which are grown in kitchen gardens and are used for the table."
® In our view, betel leaves are not exempt from taxation. These petitions therefore fail and are
dismissed with costs. One hearing fee.

Motipur Zamindary Co. (Private) Ltd. v. State of Bihar, AIR 1962 SC 660
Issue: Whether sugarcane can fall under the term “green vegetables”, the reason being, if it would’ve
fallen within the term “green vegetables ” the same would then be exempted from the Bihar Sales Tax
Act, 1947. The Court had taken the Literal rule of interpretation and observed that the word “vegetable”
was to be understood as a common parlance that is denoting a class of vegetables which were grown in
a kitchen garden or on a farm and were used for the table. The dictionary defines sugar cane as grass,
hence, it was not exempted under the Act.
Ruling: 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.
® Para 4 – The question raised is that sugar cane falls within the term “green vegetables” in Entry 6
of the Schedule and is therefore exempt from assessment to sales tax. In support of this contention
counsel for the appellant relied upon a judgment of the Bombay High Court, State of Bombay v. R.S.
Phadtare [7 STC 495] where it was held that sugar cane is “fresh vegetable” and is therefore exempt
from sales tax under a similar notification issued under the Bombay Sales Tax Act. Chagla, C.J.
there observed on p. 496 as follows: “In its plain and natural meaning a ‘vegetable’ clearly is wide
enough to cover ‘sugar-cane’; but what is urged by the Advocate-General is that we must not give
it that wide meaning but must give it the popular meaning as understood by people who deal in
vegetables or eat vegetables, and it is urged that from that narrow and restricted point of view sugar-
 cane is not vegetable. This is a taxing statute and if two constructions are possible we must lean in
favour of that construction which gives relief to the subject. That was exactly the approach of the
Sales Tax Tribunal and in our opinion, that approach was a very proper one.”

State of West Bengal v. Washi Ahmed, (1977) 2 SCC 246

Summary: Whether green ginger falls in the category of goods described as green vegetables
commonly known as sabzi, tarkari or raag? It is a vegetable.
The Sales Tax Authorities levied sales tax on “green ginger” sold by the respondents, taking the view
that green ginger is used to add flavour and taste to food. In a case under the Bengal Finance Sales Tax
Act, the issue was whether green ginger was to be regarded as a vegetable as obtained in the description
vegetable, green or dried, commonly known as sabzi, tarkari or sak in item 6 of Schedule 1. If it was
treated so, it would be exempt from sales tax.
Ruling:
® Para 4 – It will, therefore, be seen that the word “vegetable” in Item (6) of Schedule 1 to the Act
must be construed as understood in common parlance and it must be given its popular sense
meaning “that sense which people conversant with the subject-matter with which the statute is
dealing would attribute to it” and so construed, it denotes those classes of vegetables which are
grown in a kitchen garden or in a farm and are used for the table. Now, obviously, green ginger is
a vegetable grown in a kitchen garden or on a farm and is used for the table. It may not be used as
a principal item of the meal but it certainly forms part of the meal as a subsidiary item. It is an item
which is ordinarily sold by a vegetable vendor and both the vegetable vendor who every day deals
in vegetables and the housewife who daily goes to the market to purchase vegetables would
unhesitatingly regard green ginger as a vegetable. The assessee in fact placed evidence before the
Sales Tax authorities showing that the railway authorities also treated green ginger as a vegetable
for the purpose of railway tariff and charged for the carriage of green ginger at the reduced rate
applicable to vegetables and even the Corporation of Calcutta included green ginger in the category
of vegetables in the market bulletin published by it fortnightly showing the rates in the municipal
market. There can, therefore, be little doubt that green ginger is generally regarded as included
within the meaning of the word “vegetable” as understood in common parlance.
® The decision of P.N. Bhagwati, J, held that there is no doubt that green ginger is generally regarded
as included within the meaning of the word “vegetables” as understood in common parlance by the
common man. The SC relied on the fact that in common parlance green ginger was known as a
vegetable. It was grown in the kitchen garden or in a farm and was used for the table. It did not
accept the view of the Sales Tax Tribunal that it was a flavour. Green ginger is included. within the
meaning of the words “vegetables commonly known as subji, tarkari- or sak.”
® The Court observed that ginger is an item ordinarily sold by the vegetable vendor and both the
vegetable vendor who everyday deals in vegetables and unhesitatingly regard green ginger as a
vegetable.

Golden Rule
® This rule is a modification of the literal rule. It states that if the literal rule produces an absurdity,
then the court should look for another meaning of the words to avoid that absurd result
® The golden rule provides no clear means to test the existence or extent of an absurdity. It seems to
depend on the result of each individual case.
® Whilst the golden rule has the advantage of avoiding absurdities, it therefore has the disadvantage
that no test exists to determine what is an absurdity.
® Applies when plain meaning leads to abstract/inconvenient result. Textual rule can be deviated from
and statute should be read as whole to gather intention. If multiple meanings exist, judges can
choose preferred meaning and read text in that context.
® It is a very useful rule in the construction of a statute as it allows to adhere to the ordinary meaning
of the words used, and to the grammatical construction, unless that is at variance with the intention
of the legislature to be collected from the statute itself, or leads to any manifest absurdity or
repugnance, in which case it allows the language to be varied or modified so as to avoid such
inconvenience.
® It is applied most frequently in a narrow sense where there is some ambiguity or absurdity in the
words themselves. For example, imagine there may be a sign saying, "Do not use lifts in case of
fire." Under the literal interpretation of this sign, people must never use the lifts, in case there is a
fire. However, this would be an absurd result, as the intention of the person who made the sign is
obviously to prevent people from using the lifts only if there is currently a fire nearby. Similarly, it
can be interpreted broadly so as to make a word more inclusive. For e.g., “pollution” in EPA is
interpreted broadly to bring within its ambit all types of pollution.

G. Narayanaswami v. Pannerselvam, (1972) 3 SCC 717

Related to the qualification for being elected into the legislative assembly. Section 5 and 6 of the
Representation of People’s Act and Article 171 of the Constitution of India was the underlying rule of
law to be decided upon.
The question-related to the appellant’s election under Art 171(3)(b). The appellant was not a graduate
still qualified to be elected?
As per Art 171(3)(b), people voting (electors) should be graduates. No qualification mentioned for the
candidate.
Facts:
® The respondent challenged the appellant selection to the Madras Legislative, Council from the
Madras District Graduates' Constituency on the grounds,
1. that, the purpose of Art. 171 of the Constitution was to confer a right of functional
representation upon persons possessing certain educational or other qualifications so that the
appellant who was not a graduate could not be elected to the Legislative Council from the
Graduates' Constituency;
2. that, it would be absurd and destructive of the concept of representation that an individual, who
did not possess the essential or basic qualification of the electors, should be their representative,
and
3. that, the Constitution, being an organic instrument, must be interpreted in a broad and liberal
manner so as to give effect to the underlying principles and purposes of the system of
representation sought to be embodied in it.
® The High Court set aside the election.
Ruling:
® Para 4 – Nevertheless, the rule of “plain meaning” or “literal” interpretation, described in Maxwell's
Interpretation of Statutes as “the primary rule”, could not be altogether abandoned today in
interpreting any document. Indeed, we find Lord Evershed, M.R., saying: “The length and detail of
modern legislation, has undoubtedly reinforced the claim of literal construction as the only safe
rule”. This object can, obviously, be best achieved by first looking at the language used in the
 relevant provisions. Other methods of extracting the meaning can be resorted to only if the language
used is contradictory, ambiguous, or leads really to absurd results.
® Para 7 – The plain and ordinary meaning of the term “electorate” is confined to the body of persons
who elect. It does not contain, within its ambit, the extended notion of a body of persons electing
representatives “from amongst themselves”. Thus, the use of the term “electorate”, in Article 171(3)
of our Constitution, could not, by itself, impose a limit upon the field of choice of members of the
electorate by requiring that the person to be chosen must also be a member of the electorate. The
qualifications of the electors constituting the “electorate”, and of those who can represent each
“electorate” contemplated by the Constitution and then supplemented by Parliament, are separately
set out for each House.
® Para 11 – An important and very noticeable difference between qualifications prescribed by
Parliament for the membership of a Legislative Assembly by Section 5 of the Representation of
People Act of 1951 and those for the membership of a Legislative Council by Section 6 of that Act
is that, so far as a member of the Legislative Assembly is concerned, he or she has to be an elector
in the Constituency from which he or she stands, but a member of a Legislative Council in a State
is not, similarly, required to be a member of the electorate. All that Parliament says, in Section 6 of
the Representation of People Act, 1951, is that the person to be chosen as a member of the
Legislative Council has to be “an elector for any Assembly constituency” in the State to whose
Legislative Council he was to be chosen.
® Para 12 – It may be possible to look for the legislative intention in materials outside the four corners
of a statute where its language is really ambiguous or conflicting.
® Para 15 –It may well be that the Constitution-makers, acting upon such a presumption, had
intentionally left the educational qualifications of a candidate for election from the graduates'
constituency unspecified.
® Para 16 – In the case before us, it could not possibly be said that the question to be dealt with was
not “known” to the legislators. It could not even be said that qualifications of the electors as well
as of those to be elected were not matters to which the attention of the law-makers, both in the
Constituent Assembly and in Parliament, was not specially directed at all or that the omission must
be by mere oversight. The provisions discussed above demonstrate amply how legislative attention
was paid to the qualifications of the electors as well as of the elected in every case. Hence, the
correct presumption, in such a case, would be that the omission was deliberate.
® Para 18 – We think that the view contained in the Judgment under appeal, necessarily results in
writing some words into or adding them to the relevant statutory provisions to the effect that the
candidates from graduates' constituencies of Legislative Councils must also possess the
qualification of having graduated. This contravenes the rule of “plain meaning” or “literal”
construction which must ordinarily prevail. A logical corollary of that rule is that “a statute may not
be extended to meet a case for which provision has clearly and undoubtedly not been made”. In Hira
Devi v. District Board, Shahjahanpur [(1952) 2 SCC 154] this Court observed: “No doubt it is the
duty of the Court to try and harmonise the various provisions of an Act passed by the Legislature.
But it is certainly not the duty of the Court to stretch the words used by the Legislature to fill in
gaps or omissions in the provisions of an Act.”
® Para 20 – We think that the language as well as the legislative history of Articles 171 and 173 of
the Constitution and Section 6 of the Representation of People Act, 1951, enable us to presume a
deliberate omission of the qualification that the representative of the graduates should also be a
graduate. In our opinion, no absurdity results if we presume such an intention.
SR Batra v. Taruna Batra (overruled by Satish Chander Ahuja v. Sneha Ahuja)
Facts:
® The petitioner Smt. Taruna Batra was married to Amit Batra, son of the respondent, on 14th April
2000. After the marriage, Taruna Batra was living with Amit Batra in her in-law’s house. Amit
Batra has filed a divorce petition against his wife.
® In response, Taruna Batra also filed an F.I.R. against his husband, mother-in-law, father-in-law,
and sister-in-law under Indian Penal Code Section 406, 498A, 506, and 34. They were arrested by
police and after three days they got bail. Taruna Batra started living in her mother’s house. Later,
she tried to enter the appellant’s house, but she could not enter because of the lock. Amit Batra had
bought a house in Ghaziabad and was living there.
Issues:
1. Whether the property in question is a shared household.
2. Whether the order of the Delhi High Court, dismissing the previous order of Senior Civil Judge was
justified.
Ratio Decidendi:
1. The rights which may be available under any law can only be as against the husband and
not against the father-in-law or mother-in-law.
2. By definition of shared household, it cannot be held that any property where a husband and
wife have resided together is a shared household, as there may be dozens of properties that
aren’t theirs where the pair may reside at some point in their lives. Such an interpretation would
lead to chaos and any interpretation that causes such absurdity cannot be accepted.
3. Smt. Taruna Batra, not being in possession of the property in question in the first place, cannot
file an injunction restraining the appellants from “dispossessing” her from said property.
4. As regards Section 17(1) of the Protection of Women from Domestic Violence Act, 2005, the
property in question, not being a property exclusively or jointly owned or rented by Amit Batra,
cannot be subject to any claims under the right to residence in a shared household.
Judgement:
The property cannot be called a “shared household”.
Conclusion:
Perusing the facts of the case and interpreting the relevant Acts in a way that is sensible and which does
not lead to chaos in society, a proper meaning of the term “shared household” was given and the
judgement of the Senior Civil Judge was upheld by the Supreme Court, dismissing the judgement of
the Delhi High Court.
NOTE: Ahuja overruled Batra and held that the words “shared household” found in Section 2(s) of
the Domestic Violence Act were required to be interpreted in accordance with the plain meaning of the
statute. Further, being so construed, it would include any household in which the victim was residing at
the relevant time, irrespective of the person in whom title vested.
® It is a fundamental logical fallacy to arrive at a premise on the basis of a reductio ad absurdum
argument. Unfortunately, the Supreme Court did exactly that in Batra.
® The Domestic Violence Act was intended to bring an end to a poisonous culture of tolerating and
hushing up domestic violence. It was intended to create a safe space, as we have noted, for the
woman.
® All of these were missed in Batra. It took another thirteen years for Batra to be overruled in Ahuja.
® The Supreme Court in Ahuja, after considering various judgements, held that Sec. 2 (s) is an
exhaustive definition, and when read with Sec. 17 and 19 of the Act, grants an entitlement in favour
of the woman of the right of residence under the shared household irrespective of her having any
legal interest in the same.
® The Supreme Court went on to overrule Batra and debunked the reductio ad absurdum argument
in Batra and delinked the right of residence of a woman from the legalistic issue of title.

Mischief Rule
® Subset of purposive interpretation. Judges in statutory interpretation use the Mischief Rule in order
to discover legislature's intention.
® To apply it, first see what common law was before Parliament passed statute? What was the
mischief/gap for which common law did not provide? What remedy did Parliament appoint to cure
the mischief? What was the true reason for remedy?
® The application of this rule gives the judge more discretion than the literal and the golden rule as it
allows him to effectively decide on Parliament's intent. Legislative intent is determined by
examining secondary sources, such as committee reports, treatises, law review articles and
corresponding statutes. It usually avoids unjust or absurd results in sentencing. Problem is that it
gives too much power to judiciary

Heydon’s Case, (1584) 3 Co. Rep. 7

Heydon’s case is considered a landmark case because it laid down the mischief rule of interpretation of
statutes.
Facts:
1. That, Ottery college, a religious college gave tenancy in a manor to a man named Ware and his
son.
2. That, the tenancy was given in accordance with the copyhold. A copyhold was a form of
landholding in which the land was said to be held according to the will of the lord and customs
of the manor.
3. That, the copyhold given to the Wares was part of a parcel.
4. That, the parcel was then leased to a man named Heydon.
5. That, less than a year later, the college was dissolved along with all other religious colleges
because of a law that parliament enacted.
6. That, the law parliament enacted had a provision which kept in force the lease that was granted
more than a year before the enactment of the Act.
Decision: As a result of the provision, the lease granted to the Wares was held valid but the lease granted
to Heydon was held to be void.
Basis for Judgement: While making the decision, the court laid down the mischief rule. It was stated in
this case that the statute should be constructed by seeking the true intent of the makers of the Act.
The judges stated that four considerations should be kept in mind while interpreting statutes:
1. The common law that existed before the Act.
2. The flaw or mischief for which common law did not provide.
3. What remedy did the parliament came up with to resolve & cure the distress of the
commonwealth Act?
4. What was the true reason for the remedy?

R.M.D. Chamarbaugwalla v. UOI, AIR 1957 SC 628

Pursuant to resolutions passed by the legislatures of several States under Article 252, clause (1) of the
Constitution, Parliament enacted Prize Competitions Act, (42 of 1955), hereinafter referred to as “the
Act”, and by a notification issued on March 31, 1956, the Central Government brought it into force on
April 1, 1956. The petitioners before us are engaged in promoting and conducting prize competitions
in different States of India, and they have filed the present petitions under Article 32 questioning the
validity of some of the provisions of the Act and the rules framed thereunder.
Facts:
® Pursuant to resolutions passed by the legislature of various States under Article 252(1) of the
Constitution of India, the Prize Competitions Act, (42 of 1955) was enacted by the Parliament.
® The Prize Competitions Act, (42 of 1955) was brought into force by the Central Government on
April 1, 1956.
® The petitioners are engaged in the activities of promoting and conducting Prize Competitions in the
various States of India.
® The present writ petitions have been filed in view of Article 32 of the Constitution of India,
questioning the validity of certain provisions of the aforementioned Act and rule framed thereunder.
® The petitions were heard along with Civil Appeal No. 134 of 1956, wherein the validity of the
Bombay Lotteries and Prize Competitions Control and Tax Act, 1948 was impugned on grounds
some of which are raised in the present petitions.
Issues:
1. Whether, on the definition of ‘prize competition’ in s.2 (d), the Act applies to competitions which
involve substantial skill and are not in the nature of gambling.
2. And if it does, whether the provisions of ss. 4 and 5 and rr. II and 12 which are, ex concessi
void, as regards such competitions, can on the principle of severability be enforced against
competitions which are in the nature of gambling.
Ratio Decidendi:
® If and when a part of a statute may be found to be void, it may still be enforced as regards the rest
of the statute that is valid, if it is severable from what is invalid. It is immaterial, for the purpose of
this rule, whether the invalidity of such statute arises by reason of its subject matter being outside
the competence of legislature or by reason of its provisions contravening constitutional prohibition.
® In order to determine whether the impugned provisions are severable in their application to
competitions of a gambling character, assuming of course that the definition of 1 prize competition’
in s. 2(d) is wide enough to include also competitions involving skill to a substantial degree, it
would be useful to refer to the rules of construction laid down by the American Courts summarized
hereunder:
• The intention of the Legislature is the determining factor when it comes to determining
whether the valid parts of a statute are separable from the invalid parts thereof. The test
being, whether the Legislature would have enacted the valid part if it had knowledge of the
fact that the rest of the statute was invalid.
• If the invalid part of a statute is mixed up with the valid part to an extent so as to make it
inextricable, the invalidity of such part of the statute shall result in the invalidity of the
entire Act. On the other hand, if the valid and invalid parts are so distinct and separate that
striking out the invalid part makes the remainder in itself a valid code independent of the
rest, then it will be upheld notwithstanding that the rest has become unenforceable.
• Even when a clear distinction exists between the provisions that are valid and the provisions
that are invalid, if all the provisions form a part of a single scheme that is intended to operate
as a whole, the invalidity of a single part shall amount to the invalidity of the Act as a
whole.
• Likewise, when the valid and invalid parts of a statute are distinct and independent and do
not form part of a scheme but what remains once the invalidity has been omitted is so thin
 and truncated as to be in substance different from what it was when it emerged out of the
legislature, then also it will be rejected in its entirety.
• The separability of the valid and invalid provisions of a statute does not depend on whether
the law is enacted in the same section or different sections; it is not the form, but the
substance of the matter that is material, and that has to be ascertained on an examination
of the Act as a whole and of the setting of the relevant provisions therein.
• If what remains after striking out the invalid provisions of a statute cannot be enforced
without making any alterations and modifications therein, the whole of the Act must be
struck down as void, as otherwise, it will result in judicial legislation.
• In the process of determining the legislative intent on the question of separability, it will be
legitimate to take into account the history of the legislation, its object, the title and the
preamble to it.
Judgment:
® Para 6 – If the question whether the Act applies also to prize competitions in which success depends
to a substantial degree on skill is to be answered solely on a literal construction of Section 2 (d), it
will be difficult to resist the contention of the petitioners that it does. The definition of “prize
competition” in Section 2(d) is wide and unqualified in its terms. There is nothing in the wording
of it, which limits it to competitions in which success does not depend to any substantial extent on
skill but on chance….Now, when a question arises as to the interpretation to be put on an enactment,
what the court has to do is to ascertain “the intent of them that make it”, and that must of course be
gathered from the words actually used in the statute. That, however, does not mean that the decision
should rest on a literal interpretation of the words used in disregard of all other materials.“The literal
construction then”, says Maxwell on Interpretation of Statutes, “has, in general, but prima facie
preference. To arrive at the real meaning, it is always necessary to get an exact conception of the
aim, scope and object of the whole Act; to consider, according to Lord Coke:
a. What was the law before the Act was passed;
b. What was the mischief or defect for which the law had not provided;
c. What remedy Parliament has appointed; and
d. The reason of the remedy”.
The reference here is to Heydon case [(1584) 3 Co. Rep 76 ER 637]. These are principles well
settled, and were applied by this Court in Bengal Immunity Company Limited v. State of
Bihar [(1955) 2 SCR 603, 633] . To decide the true scope of the present Act, therefore we must
have regard to all such factors as can legitimately be taken into account in ascertaining the intention
of the legislature, such as the history of the legislation and the purposes thereof, the mischief which
it intended to suppress and the other provisions of the statute, and construe the language of Section
2(d) in the light of the indications furnished by them.
® Para 9 – Having regard to the circumstances under which the resolutions came to be passed, there
cannot be any reasonable doubt that the law which the State legislatures moved Parliament to enact
under Article 252(1) was one to control and regulate prize competitions of a gambling character.
Competitions in which success depended substantially on skill could not have been in the minds of
the legislatures which passed those resolutions. Those competitions had not been the subject of any
controversy in court. They had done no harm to the public and had presented no problems to the
States, and at no time had there been any legislation directed to regulating them. And if the State
legislatures felt that there was any need to regulate even those competitions, they could have
themselves effectively done so without resort to the special jurisdiction under Article 252(1). It
should further be observed that the language of the resolutions is that it is desirable to control
competitions. If it was intended that Parliament should legislate also on competitions involving
 skill, the word “control” would seem to be not appropriate. While control and regulation would be
requisite in the case of gambling, mere regulation would have been sufficient as regards
competitions involving skill.
Conclusion:
Upon a considerable amount of deliberation of relevant cases and a thorough interpretation of the
statute, it was appropriately concluded by the Supreme Court that the provisions so impugned to be
invalid by the petitioners, were indeed valid following the application of the doctrine of severability,
and that competitions that had skill as the main deciding factor of the outcome of the competition would
not come within the ambit of the Prize Competition Act, 1955.

Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661

Bengal Immunity Co. case is a landmark judgement wherein the rule of mischief or purposive
construction was applied by the Hon’ble Supreme Court. The case also highlights the importance of
marginal notes and explanation appended to a statutory provision in construing the true meaning and
import of that provision. However, it must be noted only those marginal notes should be relied upon as
an aid to construction that is inserted by the Legislature/Constituent Assembly and is thus a part of the
enactment.
Facts:
® The appellant is a company engaged in manufacturing and selling of biological products and
medicines. The company has its registered head office at Calcutta and its laboratory and factory
situated in West Bengal. It is registered as a dealer under the Bengal Finance (Sales Tax) Act, 1941.
® The products of the company are sold throughout the Union of India and abroad as well. The goods
are dispatched from Calcutta by rail, steamer or air against orders accepted by the appellant
company in Calcutta.
® The appellant company does not have any office, godown, laboratory or any agent or manager in
Bihar. However, on the 24th October 1951, the appellant company received a letter from the
Assistant Superintendent of Commercial Taxes, Bihar wherein the company was called upon to
take necessary steps to get itself registered under the Bihar Sales Tax Act, 1947 and to deposit Bihar
Sales Tax dues as well.
® Then, on 18th December 1951, a notice was issued to the appellant company by the Superintendent,
Commercial Taxes, Central Circle Bihar, Patna issued a notice under Section 13(5) of the Bihar
Sales Tax Act, 1947 read with Rule 28. It was mentioned in the notice that the appellant company
is to register itself under the Bihar Sales Tax Act and submit returns showing its turnover for a
certain period as mentioned therein.
® It was the view of the authorities that the appellant company was liable to pay tax but was willfully
avoiding its obligation to register itself under the Act.
® The appellant company denied its liability to pay tax.
Issues:
1. Whether the tax threatened to be levied on the sales made by the appellant company and
implemented by delivery in the circumstances and manner mentioned in its petition is leviable
by the State of Bihar?
2. Whether the explanation to Article 286(1)(a) of the Constitution confers authority on the State
Legislatures to impose a tax on sales falling within its purview?
Judgement:
The High Court disposed of the preliminary objection in favour of the respondents and therefore this
appeal was instituted and the same was allowed by the Supreme Court. It was held that until Parliament
by law provides otherwise, the State of Bihar shall abstain from imposing sales tax on out of state
dealers in respect of sales or purchases that have taken place in the course of inter-State trade or
commerce even though the goods have been delivered as a direct result of such sales or purchases for
consumption in Bihar.
® Para 23 – It appears to us that this rule (Heydon’s Rule) is equally applicable to the construction of
Article 286 of our Constitution. In order to properly interpret the provisions of that article it is,
therefore, necessary to consider how the matter stood immediately before the Constitution came
into force, what the mischief was for which the old law did not provide and the remedy which has
been provided by the Constitution to cure that mischief.
® Para 38 - The argument is that as a literal construction of clause (2) will result in such discrimination
against local trade, the cardinal rule of interpretation, namely, reading the written provision literally
and giving to the words their ordinary natural meaning should give way to a restricted construction.
This argument overlooks several basic things. If there is any real hardship of the kind referred to,
there is Parliament which is expressly invested with the power of lifting the ban under clause (2)
either wholly or to the extent it thinks fit to do. Why should the court be called upon to discard the
cardinal rule of interpretation for mitigating a hardship, which after all may be entirely fanciful,
when the Constitution itself has expressly provided for another authority more competent to
evaluate the correct position to do the needful?....Such supposed hardship is, in our view, no ground
for putting a forced and unnatural interpretation upon Article 286.
 WEEK 7-8: Subsidiary Rules of Interpretation

Statute Must Be Read as a Whole

To find true meaning, Court must look at entire statute. Each section must be read in the context of
overall scheme and purpose. Rationale is so that there are no contradictions in law. Whenever the
question arises as to the meaning of a certain provision in a statute it is proper and legitimate to read
that provision in context of the entire statute. Every clause of a statute should be construed with
reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent
enactment of the whole statute or series relating to the subject-matter. The intention of Legislature needs
to be found by reading the statute as a whole. Words take colour from the context in which they are
used. The same word may mean one thing in one context and another in different context, therefore, the
same word used in different sections of a statute may bear different meaning. This is why it is necessary
to read the statute as a whole in its context.
® The intention of the legislature is to be gathered from the whole of statute.
® Every part of it to be taken and compared with other parts.
® This principle also stated thus, that every statute must be interpreted ex visceribus actus (within the
four corners of the act)
® The reason is that there should not be any contradiction between one part of a statute and another
and also another part will help in understanding
® If there is an irreconcilable contradiction, the latter section is treated as an exception to the former
® Whenever the question arises as to the meaning of a certain provision in a statute it is proper and
legitimate to read that provision in context of the entire statute. This means that the statute must be
read as a whole.
® What was the previous state of law? The study of other statutes in pari materia i.e., on the same
matter, if there are any; what is the general scope of statute and mischief which it wanted to remedy?
– all these questions are to be considered here.
® Every clause of a statute should be construed with reference to the context and other clauses of the
Act, so as, as far as possible, to make a consistent enactment of the whole statute or series relating
to the subject-matter.
® The intention of Legislature needs to be found by reading the statute as a whole.
® The conclusion that the language used by the legislature is plain or ambiguous can only be truly
arrived by studying the statute as a whole.

Regional Provident Fund Commissioner, Bombay v. Shree Krishna Metal Manufacturing Co., AIR
1962 SC 1536
The Court in this case interpreted S.3(1)(a) of the Employee Provident Fund Act, 1952 (“EPF Act”).
The respondents in this case were Shree Krishna Metal Mfg. Co – a partnership firm (“Company”)
which has four works situated in the same compound and Oudh Sugar Mills Ltd.
® The Court first interpreted the provision to mean that the Act did not exclusively apply to industries
specified in Schedule 1 because Schedule 1 was supposed to be inclusive.
® Secondly, the Court looked at the definition of “factory” in S.2(g) and used that interpret S.1(3)(a)
to mean that any number of units in the same premises/precincts would be looked at as one.
® The Court then interpreted “engaged in” in S.1(3)(a) to mean “mainly engaged in any industry
specified in Schedule 1” and the work is not just a subsidiary, incidental, minor or feeding activity
but the primary activity of the factory.
® As per this it was held that the Company fell within the purview of the Act because the activity
carried in by one of its units was not just an incidental activity but the Mills were kept outside the
purview because the unit which carried on the activity that fell within Schedule 1 was simply a
feeding activity to its main unit.
Ruling:
® Para 6 – The provisions of the Act constitute a welfare measure intended for the benefit of the
workmen to whom the Act applies, and this beneficent purpose of the Act has to be borne in mind
in construing the relevant clause with which we are concerned in the present appeals.
® Para 13 – The ordinary rule of grammar on which this construction is based cannot be treated as an
invariable rule which must always and in every case be accepted without regard to the context. If
the context definitely suggests that the relevant rule of grammar is inapplicable, then the
requirement of the context must prevail over the rule of grammar. As the provision stands, the word
“factories” is qualified by two clauses. The first adjectival clause is “engaged in any industry
specified in Schedule I” and the second clause is “in which 50 or more persons are employed”. In
other words, in order that the factories should fall within the scope of the provision, they must
satisfy two tests : they must be engaged in any industry specified in Schedule I and they must have
employed 50 or more persons.
Note - No provision has absolute meaning. Context trumps grammar. Rule of grammar will not be
given preference. Read the whole statute to see how provision will be interpreted. They are looking
at other provisions, amended provisions, schedules, etc., to understand the context and then give
meaning to the provision in question. Para 21 they are saying that requirement under this provision
is something other than what it purports to be. EPF act will be applicable to the company. They are
not giving much importance to literal interpretation. Primary rules cannot be looked at alone but
need to be looked at through the lens of secondary rules.

Aswini Kumar v. Arbinda Bose, AIR 1952 SC 369

® The Petitioner was an Advocate of the Calcutta High Court and of the Supreme Court of India. The
Supreme Court Advocates (Practice in High Courts) Act, 1951 is an Act to authorize Advocates of
Supreme Court to practice as of right in any High Court. When he filed in the Registry on the
original side of the Calcutta High Court a warrant of authority executed in his favour to appear for
a client, it was returned, because under the High Court Rules and Orders, Original side, an Advocate
could only plead and not act. The Advocate contended that as an Advocate of the Supreme Court
he had a right to practice which right included the right to act as well as to appear and plead without
being instructed by an attorney. The contention was accepted by the majority.
® The Supreme Court observed that the non obstante clause can reasonably be read as overriding
‘anything contained’ in any relevant existing law which is inconsistent with the new enactment,
although the draftsman had primarily in his mind a particular type of law as conflicting with the
new Act. The enacting part of a statue must, where it is clear, be taken to control the non obstante
clause where both cannot be read harmoniously. While it may be true that the non obstante clause
need not necessarily be co-extensive with the operative part, there can be no doubt that ordinarily
there should be a close approximation between the two.”
® It was further observed that it should first be ascertained what the enacting part of the section
provides on a fair construction of the words used according to their natural and ordinary meaning,
and the non obstante clause is to be understood as operating to set aside as no longer valid anything
contained in relevant existing laws which is inconsistent with the new enactment.
Ruling:
® Para 73 – The legislature which enacted the Act now under our consideration had full knowledge
of the internal classification of the advocates of the Calcutta and Bombay High Courts into original
side advocates and appellate side advocates, the disability of the original side advocates of those
two High Courts, namely, that they were not permitted “to act” on the original side and could only,
“appear and plead” on the instruction of an attorney and that the attorneys alone were permitted “to
act” on that side of those two High Courts. Further, the legislature was well aware of the bar
imposed on foreign advocates i.e. advocates not on the roll of a High Court in the matter of their
appearing and pleading in that High Court and the fact that eminent advocates of one High Court
were not on many occasions in the past, given permission “to a appear and plead” in another High
Court. The legislature knew that under Order 1 Rule 2 of the Supreme Court Rules an advocate had
been defined as a person entitled “to appear and plead” before the Supreme Court and that Order 4
Rule 30 precluded an advocate from acting as agent and an agent as advocate in any circumstances
whatsoever. Finally, the legislature was cognisant of the fact that a Supreme Court advocate was a
foreign advocate in all High Courts other than the one where he was enrolled and as such was not
entitled as of right “to appear and plead” in those High Courts. With knowledge of all these facts
and circumstances the legislature proceeded to enact this Act and, therefore, the provisions of the
Act have to be considered in the light of these prevailing circumstances which undoubtedly form
the background of this enactment and which cannot be overlooked or ignored.
® Para 74 – Turning now to the text of the Act, one cannot but be impressed at once with the wording
of the full title of the Act. Although there are observations in earlier English cases that the title is
not a part of the statute and is, therefore, to be excluded from consideration in construing the statute,
it is now settled law that the title of a statute is an important part of the Act and may be referred to
for the purpose of ascertaining its general scope and of throwing light on its construction, although
it cannot override the clear meaning of the enactment. (See Maxwell on the Interpretation of
Statutes, 9th Edn., p. 44 and the cases cited therein). The full title ‘of the Act now under
consideration runs thus: “An Act to authorise advocates of the Supreme Court to practise as of right
in any High Court.” One cannot fail to note the words “as of right” and the words in any High
Court” which follow immediately. Those two sets of words at once convey to my mind that the Act
is directly and intimately concerned with the disability imposed by a High Court on advocates not
on its roll in the way of their appearing and pleading in such High Court without the permission of
the Chief Justice and without satisfying other conditions if any, and that their purpose is to remove
and supersede that disability, so far as the Supreme Court advocates are concerned, by authorising
them to do so as of right. The words “as of right” are quite clearly indicative of an independent
statutory right as opposed to the conditional right dependent on the sweet will of the Chief Justice
concerned. Those words are used by way of antithesis and bring out prominently the object of the
Act. In view of that well known disability which naturally was irksome those words cannot fail to
convey to one's mind the conviction that the purpose of the Act, as indicated by its title, is to confer
on the advocates of the Supreme Court a right which was denied to them by the Rules of the High
Courts referred to above. The language in which the title of the Act has been expressed appears to
me to be a good and cogent means of finding out the true meaning and import of the Act, and, as it
were, a key to the understanding of it.
® Para 77 – The High Court has rejected the contention of the petitioner Aswini Kumar Ghosh on two
grounds. In the first place it has been said that the comma was no part of the Act. That the orthodox
view of earlier English Judges was that punctuation formed no part of the statute appears quite
clearly from the observations of Willes, J. in Claydon v. Green16. Vigorous expression was given
to this view also by Lord Esher, M.R. in Duke of Devonshire v. Connor where he said: “In an Act
of Parliament there are no such things as brackets any more than there are such things as stops.” This
 view was also adopted by the Privy Council in the matter of interpretation of Indian statutes as will
appear from the observations of Lord Hobhouse in Maharani of Burdwan v. Murtunjoy Singh,
namely, that “it is an error to rely on punctuation in construing Acts of the legislature”. Same
opinion was expressed by the Privy Council in Pugh v. Ashutosh Sen. If, however, the Rule
regarding the rejection of punctuation for the purposes of interpretation is to be regarded as of
imperfect obligation and punctuation is to be taken at least as contemporanea expositio, it will
nevertheless have to be disregarded if it is contrary to the plain meaning of the statute. If punctuation
is without sense or conflicts with the plain meaning of the words, the court will not allow it to cause
a meaning to be placed upon the words which they otherwise would not have. This leads me to the
second ground on which mainly the High Court rejected the plea of the petitioner Aswini Kumar
Ghosh, namely, that the word “other” in the phrase “any other law” quite clearly connects the Indian
Bar Councils Act with other laws as alternatives and subjects both to the qualification contained in
the adjectival clause. I find myself in complete agreement with the High Court on this point. If the
intention was that the adjectival clause should not qualify the Indian Bar Councils Act, then the use
of the word “other” was wholly in apposite and unnecessary. The use of that word unmistakably
leads to the conclusion that the adjectival clause also qualifies something other than “other law”. If
the intention were that the Indian Bar Councils Act should remain unaffected by the qualifying
phrase and should be superseded in toto for the purposes of this Act the legislature would have said
“or in any law regulating the conditions etc.” It would have been yet simpler not to refer to the
Indian Bar Councils Act at all and to drop the adjectival clause and to simply say “Notwithstanding
anything contained in any law”. In the light of the true meaning of the title of the Act as I have
explained above and having regard to the use of the word “other”. I have no hesitation in holding,
in agreement with the High Court, that what the non obstante clause intended to exclude or
supersede was not the whole of the Indian Bar Councils Act but to exclude or supersede that Act
and any other law only insofar as they or either of them purported to regulate the conditions subject
to which a person not entered in the roll of advocates of a High Court might be permitted to practise
in that High Court and that the comma, if it may at all be looked at, must be disregarded as being
contrary to this plain meaning of the statute.

Poppatlal Shah v. State of Madras, AIR 1953 SC 274

® In the instant case, the Madras High Court distinguished between the legal and semantic meaning.
It held that ‘sale’ has a legal meaning and a popular meaning in this situation. S. 2(h) of the General
Sales Tax of Madras defines ‘sale’ as “every transfer of the property in goods by one person to
another in the course of trade or business for cash or for deferred payment or other valuable
consideration, but does not include a mortgage, hypothecation, charge or pledge”.
® The contention here was to interpret whether the place of sale was where the contract of sale was
entered into or the place where the property in the goods passed. From a cursory glance, the High
Court held that since the head office of the appellant’s company was in Madras and the articles
supplied were purchased from the local markets of Madras, the sale took place in Madras.
® Here, the High Court considered the semantic meaning of ‘sale’ to be its popular meaning.
However, the High Court failed to take in to account that interpretation requires deriving legal
meaning from the semantic meaning. Consequently, the case was presented before the Apex Court.
It adopted the subsidiary rule by looking at the title, preamble, definitions, and the provisions of the
statute to understand the legislative intent, purpose, scope, and context of ‘sale’.
® The title — “Madras Sales Tax Act” and its preamble resolved ambiguities relating to the object
and scope of the Act, which was to impose taxes on sales that took place within the province,
 though on plain reading, it does not necessarily mean that the property in the goods must pass within
the province. On analyzing S. 2(h), it was clear that transfer of property in a sale is essential, as
seen above.
® Further, the Court also looked at the definition of ‘sale’ under the Sale of Goods Act and gauged
that a contract of sale is a complete sale only when the property in the goods is transferred to the
purchaser under the contractual terms.
® Therefore, on looking at these legitimate internal aids to construction in silos, the Apex Court held
that the sale was completed in Calcutta, where the property in the goods were passed. And hence,
the appellant’s company cannot be taxed under the Act. Here, the constitution bench’s interpretation
also aligns with Dworkin’s principle of aesthetic hypothesis to find the best interpretation.
® In order to choose the most fitting interpretation, the following principles must be abided by—
a. identity of text should not be altered, and
b. integrity of the text must be retained through the interpretation of all the parts.
® The Apex Court duly fulfilled both the principles while using the internal aids of construction in
silos to capture the legislative intent, purpose and scope of ‘sale’ under the Act.
Ruling:
® Para 7 – It is a settled rule of construction that to ascertain the legislative intent, all the constituent
parts of a statute are to be taken together and each word, phrase or sentence is to be considered in
the light of the general purpose and object of the Act itself. The title of the Madras Sales Tax Act
describes it to be an Act, the object of which is to provide for the levy of a general tax on the sale
of goods in the Province of Madras and the very same words are repeated in the preamble which
follows. The title and preamble, whatever their value might be as aids to the construction of a
statute, undoubtedly throw light on the intent and design of the legislature and indicate the scope
and purpose of the legislation itself. The title and preamble of the Madras Sales Tax Act clearly
show that its object is to impose taxes on sales that take place within the province, though these
words do not necessarily mean that the property in the goods sold must pass within the province.
The expression “sale of goods” is a composite expression consisting of various ingredients or
elements. Thus, there are the elements of a bargain or contract of sale, the payment or promise of
payment of price, the delivery of goods and the actual passing of title, and each one of them is
essential to a transaction of sale though the sale is not completed or concluded unless the purchaser
becomes the owner of the property. The question is what element or elements have been accepted
by the Madras Legislature as constituting a sale in the province upon which it is the object of the
statute to levy tax. Section 2(h) gives the definition of “sale” and it is defined as meaning, “every
transfer of the property in goods by one person to another in the course of trade or business for cash
or for deferred payment or other valuable consideration, but does not include a mortgage,
hypothecation, charge or pledge”.

Harmonious Construction
® Courts must construe contradictory provisions so as to harmonize them.
® A provision cannot be used to defeat another provision.
® When it is impossible to completely reconcile the differences, courts must interpret them in such a
way so that effect is given to both the provisions to maximum extent possible. A related concept.
® Underlying principle states that for a construction to be harmonious anything in relation to the
statute must be harmonious and must be given effect to. Affect should be given to all provisions.
The rule of harmonious construction is the thumb rule to interpretation of any statute.
® An interpretation which makes the enactment a consistent whole, should be the aim of the Courts
and a construction which avoids inconsistency or repugnancy between the various sections or parts
of the statute should be adopted.
® The Courts should avoid “a head on clash”, in the words of the Apex Court, between the different
parts of an enactment and conflict between the various provisions should be sought to be
harmonized. The normal presumption should be consistency and it should not be assumed that what
is given with one hand by the legislature is sought to be taken away by the other.
® The rule of harmonious construction has been tersely explained by the Supreme Court thus, “When
there are, in an enactment two provisions which cannot be reconciled with each other, they should
be so interpreted, that if possible, effect should be given to both”.
® A construction which makes one portion of the enactment a dead letter should be avoided since
harmonization is not equivalent to destruction. Harmonious Construction should be applied to
statutory rules and courts should avoid absurd or unintended results. It should be resorted to making
the provision meaningful in the context. It should be in consonance with the intention of Rule
makers.
® Rule of Harmonious construction is applicable to subordinate legislature also. It holds that when
two provisions of a legal text seem to conflict, they should be interpreted so that each has a separate
effect and neither is redundant or nullified.
® When there is a conflict between two or more statues or two or more parts of a statute then the rule
of harmonious construction needs to be adopted. The rule follows a very simple premise that every
statute has a purpose and intent as per law and should be read as a whole.
® The interpretation consistent of all the provisions of the statute should be adopted. In the case in
which it shall be impossible to harmonize both the provisions, the court’s decision regarding the
provision shall prevail. T
® The rule of harmonious construction is the thumb rule to interpretation of any statute. An
interpretation which makes the enactment a consistent whole, should be the aim of the Courts and
a construction which avoids inconsistency or repugnancy between the various sections or parts of
the statute should be adopted.
® The Courts should avoid “a head on clash”, in the words of the Apex Court, between the different
parts of an enactment and conflict between the various provisions should be sought to be
harmonized.
® The normal presumption should be consistency and it should not be assumed that what is given
with one hand by the legislature is sought to be taken away by the other.
® Example: Art 19(1)(a)- Freedom to Speech and Expression and Art 194(3) –
o Power of the house of the parliament, anyone can say anything if a member of the
parliament and is at the parliament - this is a specific rule in comparison to Art
19(1)(a).
o However, if the differences b/w 2 provisions are irreconcilable then there are different
methods like - one which comes later should be effective which gives us the last
intention of the law maker.

Calcutta Gas Co. v. State of West Bengal, AIR 1962 SC 1044

Reg Entry 24 and 24 of List II of Schedule 7. If Entry 24 accounts for industry, then why is there a
specific entry for gas under Entry 25. Harmonious construction was used in order for both the entries
to work together. Question was whether industry includes gas or not? or how do you harmoniously
construe both? There are 3 possibilities:
® Overlap: There is a clear overlap which means 24 talks of industry including gas, and 25 is an
overlap.
® Exclusion: They both are excluding. 24 speaks of all industries except gas, and that is why
mentioned in 25.
® Middle Ground: Industries including the industrial aspects of gas. 24 would include industrial
aspects of gas, while 25 would deal with everything remaining with gas. Whatever is left is covered
under 25.
® After considering above three, they say overlap is not possible because underlying principle
suggests that most liberal interpretation must be given. In this case 25 loses its purpose. Middle
ground is rejected suggesting that nothing would be left over under this method. If industry is
removed as whole, you would be left with nothing leaving 25 to be useless. Thus, the exclusion
method is accepted in order to interpret the 2 entries harmoniously.
® Examples of HC:
Art 19(1)(a) and Art 194(3) - inside the parliament you can say anything. Art 19 becomes
general, while Art 194 is seen as the exception only applicable to the houses of the parliament.
Art 161 and Art 142- 161 gives the Governor power to pardon. SC can do complete justice in
any case. There was a contradiction which was resolved by understood. when a matter is sub-
judice, Art 161 cannot be used unless the case is completely decided making 161 an exception
and 142 a general rule.
Ruling:
® Para 9 – The first question that occurs to one's mind is, what is the meaning of the expression
“industry” in Entry 24 of List II? Is it different from the meaning of that expression in Entry 52 of
List II? Whatever may be its connotation, it must bear the same meaning in both the entries, for the
two entries are so interconnected that conflicting or different meanings given to them would snap
the connection. Entry 24 is subject to the provisions of Entry 7 and Entry 52 of List I. Entry 7 of
List I provides for industries declared by Parliament by law to be necessary for the purpose of
defence or for the prosecution of war, and Entry 52 for industries the control of which by the Union
is declared by Parliament by law to be expedient in the public interest. Therefore, ordinarily industry
is in the field of State legislation; but, if Parliament by law makes a relevant declaration or
declarations, the industry or industries so declared would be taken off its field and passed on to
Parliament. In the premises, the expression “industry” in all the entries must be given the same
meaning. Now, what is the meaning of the word “industry”? In Tika Ramji v. State of U.P. the
expression “industries” is defined to mean the process of manufacture or production and does not
include the raw materials used in the industry or the distribution of the products of the industry.
It was contended that the word “industry” was a word of wide import and should be construed as
including not only the process of manufacture or production but also activities antecedent thereto
such as acquisition of raw materials and subsequent thereto such as disposal of the finished products
of that industry. But that contention was not accepted. It is not necessary in this case to attempt to
define the expression “industry” precisely or to state exhaustively all its ingredients.
Assuming that the expression means only production or manufacture, would it take in its sweep
production or manufacture, of gas? Entry 24 in List II in its widest amplitude takes in all industries,
including that of gas and gas-works. So too, Entry 25 of the said List comprehends gas industry.
There is, therefore, an apparent conflict between the two entries and they overlap each other.
In such a contingency the doctrine of harmonious construction must be invoked. Both the learned
counsel accept this principle. While the learned Attorney-General seeks to harmonize both the
entries by giving the widest meaning to the word “industry” so as to include the industrial aspect of
gas and gas- works and leaving the other aspects to be covered by Entry 25, learned counsel for the
 contesting respondents seeks to reconcile them by carving out gas and gas-works in all its aspects
from Entry 24.
If industry in Entry 24 is interpreted to include gas and gas-works, Entry 25 may become redundant,
and in the context of the succeeding entries, namely, Entry 26, dealing with trade and commerce,
ant Entry 27, dealing with production, supply and distribution of goods it will be deprived of all its
contents and reduced to “useless lumber”. If industrial, trade, production and supply aspects are
taken out of Entry 25, the substratum of the said entry would disappear: in that event we would be
attributing to the authors of the Constitution ineptitude, want of precision and tautology.
On the other hand, the alternative contention enables Entries 24 and 25 to operate fully in their
respective fields: while Entry 24 covers a very wide field, that is, the field of the entire industry in
the State, Entry 25, dealing with gas and gas-works, can be confined to a specific industry, that is,
the gas industry.
There may be many good reasons for the authors of the Constitution giving separate treatment to
gas and gas-works. If one can surmise, it may be that, as the industry of gas and gas-works was
confined to one or two States and was not of all-India importance, it was carved out of Entry 24
and given a separate entry, as otherwise if a declaration by law was made by Parliament within the
meaning of Entry 7 or Entry 52 of List I, it would be taken out of the legislative power of States.
Be it as it may, the express intention of the Constitution is to treat it, in normal times, as a state
subject and it is not in the province of this Court to ascertain and scrutinize the reasons for doing
so. It is suggested that this interpretation would prevent Parliament to make law in respect of gas
and gas-works during war or other national emergency.
Apart from the relevancy of such a consideration, the apprehension has no justification, for under
Article 249 Parliament is enabled to take up for legislation any matter which is specifically
enumerated in List II whenever the Council of States resolves by two- thirds majority that such a
legislation is necessary or expedient in the national interest. So too, under Article 250 Parliament
can make laws with respect to any of the matters enumerated in the State List, if a proclamation of
emergency is in operation.
Article 252 authorizes the Parliament to legislate for two or more States, if the Houses of the
legislatures of those States give their consent to the said course. Subject to such emergency or
extraordinary powers, the entire industry of gas and gas-works is within the exclusive legislative
competence of a State.
It is, therefore, clear that the scheme of harmonious construction suggested on behalf of the State
gives full and effective scope of operation for both the entries in their respective fields, while that
suggested by learned counsel for the appellant deprives Entry 25 of all its content and even makes
it redundant.
The former interpretation must, therefore, be accepted in preference to the latter. In this view, gas
and gas-works are within the exclusive field allotted to the States.
On this interpretation the argument of the learned Attorney- General that, under Article 246 of the
Constitution, the legislative power of State is subject to that of Parliament ceases to have any force,
for the gas industry is outside the legislative field of Parliament and is within the exclusive field of
the legislature of the State.
We, therefore, hold that the impugned Act was within the legislative competence of the West
Bengal Legislature and was, therefore, validly made.
Judgment:
® The Apex Court held that the Legislature of a State has the exclusive power to make law in respect
of gas industry by virtue of entry 25 of List II, and that entry 24 does not comprehend gas industry.
® As we have indicated earlier, the expression “industry” in entry 52 of List I bears the same meaning
as that in entry 24 of List II, with the result that the said expression in entry 52 of List I also does
not take in a gas industry. In the result, we agree with the High Court that the impugned Act was
within the legislative competence of the West Bengal State Legislature and was validly made.
Conclusion:
® It can be perceived from this case that statutes are drafted by the legislatures and there is every
possibility of situations of ambiguity, conflicts, etc.
® Here, Courts come with several doctrines of the constitution to protect the statutes and acts as
interpreters to render justice. Courts must acknowledge such practices so as to avoid repugnancy
and make access to justice for the purpose of satisfying the welfare needs which the constitution
upholds to protect.

Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661

This appeal, filed under a certificate of fitness granted by the High Court of Patna, is directed against
the judgment of that High Court pronounced on the 4th December 1952 whereby it dismissed the
application made by the appellant Company under Article 226 of the Constitution praying for an
appropriate writ or order quashing “the proceedings issued by the opposite parties for the purpose of
levying and realizing a tax which is not lawfully leviable on the petitioners” and for another ancillary
reliefs.
Ruling:
® Para 75 – It is a cardinal rule of construction that when there are in a Statute two provisions which
are in conflict with each other such that both of them cannot stand, they should, if possible, be so
interpreted that effect can be given to both, and that a construction which renders either of them
inoperative and useless should not be adopted except in the last resort. This is what is known as the
rule of harmonious construction. One application of this rule is that when there is a law generally
dealing with a subject and another dealing particularly with one of the topics comprised therein, the
general law is to be construed as yielding to the special in respect of the matters comprised therein.

A Statute Must be Construed to Make it Effective and Workable / Presumption of

Constitutional Validity / Ut res magis valeat quam pereat
® Ut res magis valeat quam pereat is a Latin term which means ‘The thing may rather have effect
than be destroyed’.
® Two aspects of this rule:
o A statute must be construed to make it effective and workable and;
o Presumption of constitutional validity. Presumption: No lawmaker would intend for a law
to be ultra vires ineffective and importance given to legislative intent.
® It is better for a thing to have effect than to be made void. The words of the statute must be so
construed as to give a sensible meaning to them, if possible.
® An interpretation which makes certain words of a statute pertinent and useful must be preferred to
the one which renders them useless, void and ineffective.
® This principle also means that if the obvious intention of the statute gives rise to obstacles in
implementation, the court must do its best to find ways of overcoming those obstacles so as to avoid
absurd results.
® It is a well settled principle of IOS that a construction should not be put on a statutory provision
which would manifest absurdity, futility, palpable injustice and absurd inconvenience or anomaly.
® Every effort should be made by a Court to find a meaning, looking at substance and not mere form,
and that difficulties in interpretation do not make a clause bad as not being capable of interpretation,
so long as a definite meaning can properly be extracted.
® In other words, every clause in a contract must, if possible, be given effect to. The words of the
statute must be construed so as to give a sensible meaning to them. It is on this principle that a court
presumes the constitutionality of a provision and prefers an interpretation in favour of the
competence of the legislature or authority laying down a rule of law.
® Establishes that Court shall presume the constitutionality of a provision and prefers an interpretation
in favor of the competence of the legislature or other authority laying down a rule of law.
® Linguistically, this Latin maxim suggests: That the thing may rather have effect than destroyed.

Avtar Singh v. State of Punjab, AIR 1965 SC 666

Appellant was convicted of theft of electricity under Section 39 of Electricity Act, 1990. He contended
that the proceedings were illegal because they were not initiated by any of the persons as mandated by
Section 50 of the act. It was held that under this principle, the requirement of Section 50 should be given
effect. – conviction set aside.
Ruling:
® Para 6 - In Public Prosecutor v. Abdul Wahab it was stated that the language used in Sections 48
and 49 cannot be regarded as strictly accurate. Such an interpretation is not permitted for “the words
of an Act of Parliament must be construed so as to give sensible meaning to them. The words ought
to be construed ut res magis valeant quam pureat's Curtis v. Stovin . And we find no difficulty in
taking the view that Section 39 does provide for a punishment. It says that the dishonest abstract on
of energy shall be deemed to be theft within the meaning of the Indian Penal Code. The section,
therefore makes something which was not a theft within that Code, a theft within it, for if the
abstraction was a theft within the Code, the section would be unnecessary. It follows from this that
the section also makes that theft punishable in the manner provided in it, for if the act is deemed to
be a theft within the Code it must be so deemed for all purposes of it, including the purpose of
incurring the punishment.

Corporation of Calcutta v. Liberty Cinema, AIR 1965 SC 1107

The respondent was paying a license fee of Rs. 400 per year on the basis on annual valuation. The basis
of assessment was changed to the sanctioned seating capacity of the cinema house by a resolution of
the appellant and the respondent had to pay Rs. 6000 per year. In a writ petition, the high court quashed
the resolution. The Supreme court reversed the order, holding that the levy was not a fee but a tax.
Ruling:
® Para 9 - It may also be stated that a statute has to be read so as to make it valid and, if possible, an
interpretation leading to a contrary position should be avoided; it has to be construed ut res magis
valeat quam pareat. Therefore again, the word ‘fee’ in Section 548 should be read as meaning a
tax, for, as we shall show later, it made no provision for services to be rendered; any other reading
would make the section invalid. A construction producing that result has to be avoided. We do not
also think that by reading the word as referring to a tax we would be doing any violence to the
language used.
 Expressio unius est exclusio alterius
® "The express mention of one thing implies the exclusion of others". May be applied in
circumstances, where illustrations, criteria, objects have been mentioned – the expression of such
criteria is the implied exclusion of all other criteria. Courts must also consider the ‘ex abundanti
cautela’ principle (‘out of abundant caution’).
® However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by
a word such as "includes" or "such as." This rule applies when a provision is clearly set out which
is in contrast with another provision, which is not clearly set out in the statute. Were both the
provisions clearly set out in the statute then harmonious construction had to be applied.

Khemka & Co. v. State of Maharashtra, (1975) 2 SCC 22

The question was the scope of Sec 9(2) of the central Sales Tax Act 1956. The sub-section empowers
the state authorities to assess, reassess and enforce payment of tax on behalf of the Govt of India
including any penalty payable by a dealer under central act. The second part of the Sub-section provides
that this will be as of the tax or penalty payable by such a dealer under central act is a tax or penalty
under the general sales tax law of the state. The question is whether the penalty could be imposed for
the delay by the state.
Rule: Central Sales Tax Act’s Section 9(2) – The authority empowered to assess, reassess, collect and
enforce payment of any tax under the general sales tax law of the appropriate state shall on behalf of
the government of India assess, reassess, collect and enforce payment of tax including any penalty
payable by a dealer under this Act as if the tax or penalty payable by such a dealer under this Act is a
tax or penalty payable under the general sales tax law of the state.
Facts: Basically, the state will collect the tax on behalf of the government of India. The procedure will
be the same as what the State Act gives.
Maharashtra Sales Tax Act included some penalties payable for default of tax payment. Authorities are
collecting central taxes and they impose penalties as given in Maharashtra Sales Tax Act for Central
Sales Tax (CST) default against Khemka.
Issue: Can the authority impose penalties as given under the Maharashtra Sales Tax Act on default of
CST?
Held: The manner of collection is discussed in the statute and not what is being collected. Tax or penalty
included under this Act. Therefore it excludes General Sales Tax Act.
Ruling:
® Para 70 – I think that the maxim of interpretation to apply here is: "Expressio Unius exclusio
alterius", This is explained as follows in Maxwell on the Interpretation of Statutes (12th Edn. p.
293); By the rule usually known in the form of this Latin Maxim, mention of one or more things of
a particular class may be regarded as silently excluding all other members of the class; expressing
facit cessare tacitum.
® Para 71 - No doubt this maxim has been described as "a useful servant hut a dangerous master". I
can, however, think of no kind of case more apt for its application than the one before us. As the
Privy Council said long ago, regarding a statute purporting to impose a charge in Oriental Bank
Corporation v. Wright [(1880) 5 AC 842], that in such a case, the rule to be applied is "that the
intention to impose a charge upon the subject, must be shown by clear and unambiguous language".
If the language leaves room for concluding that only penalties specified in the Central Act are
enforceable by the machinery for enforcement of liability under the General Sales Tax law of a
State, I think that the legislative intent could safely be presumed to be to confine penalties
 mentioned in the concluding part of Section 9(2) to only those mentioned specifically in the Central
Act.

Harish Chandra v. Triloki Singh, AIR 1957 SC 444

In this case, the question before the Supreme Court was whether the Tribunal could allow an amendment
to the original petition whereby a new charge could be introduced. S. 83(3) provided for amending the
petition to include the particulars while a general provision was laid out in Order VI Rule 17 of the
Code of Civil Procedure.
Both the provisions, express and implied, should operate on the same subject matter. If the subject
matter of both the provisions is different this rule has no application.
The Limitation of This Rule Is: If the alternative provision is clearly set out then this rule is not
applied. As stated above, this rule is employed to gauge the intention of the Parliament which if, is clear
from the words used should be applied.
Part IV of the Motor Vehicles Act provided for obtaining ‘permit’ by the government to enter into a
commercial practice with the other private players. Later Part IVA was inserted into the Motor Vehicles
Act whereby through a ‘scheme’ only government could obtain the permit to ply vehicles, which could
be claimed as a matter of right. To this, petitioners used the said doctrine and contested – Since the
provision for the scheme is clearly set out in Part IVA, it by virtue of Expressio Unius Est Exclusio
Alterius excludes the ‘permit’ under Part IV of the Act. Negating this contention Court observed:
® It is a maxim for ascertaining the intention of the legislature. Where the statutory language is
plain and the meaning clear, there is no scope for applying the rule.
® Section 42(3) (a) of the Motor Vehicles Act, is plain in its terms. It contemplates that the
Government has to apply for permits under Section 42(1) to run buses as a commercial
enterprise. That being so, the maxim cannot be resorted to for ascertaining the intention of the
legislature and implying a prohibition against the Government applying for permits under
Chapter IV.
® When two provision or statutes are to be interpreted wherein, one provision or statute clearly
sets out unequivocally what it aspires to achieve while the other is silent, in such a situation if
the question arises, ‘what if by import, statute/provision which is silent on a specified subject
matter is to be tacitly read or interpreted with the one which has been clearly specified’, what
rule of interpretation should be resorted to?
® This is the perfect situation in which the rule of Expressio Unius Est Exclusio Alterius is
applied.

Noscitur A Sociis
® Noscere means to know and sociis means association. Thus, Noscitur a Sociis means knowing
from association. Thus, under the doctrine of "noscitur a sociis" the questionable meaning of a
word or doubtful words can be derived from its association with other words within the context
of the phrase. This means that words in a list within a statute have meanings that are related to
each other. If multiple words having similar meaning are put together, they are to be understood
in their collective meaning.
® According to Maxwell, "this rule means that when two or more words susceptible to analogous
meaning are clubbed together, they are understood to be used in their cognate sense. They take
as it were their colour from each other, i.e. the more general is restricted to a sense analogous
to a less general".
 ® This doctrine is broader than the doctrine of Ejusdem Generis because this rule puts the words
in context of the whole phrase and not just in relation to the nearby words. The language of the
phrase can be used as a guide to arrive at the true meaning of the word.
® When this doctrine is not used: While ascertaining the meaning of a clause or sentence by
contrasting it to a prior clause or sentence in the same provision or different provision in the
same statute or different statute, this rule is not resorted to.
® When this doctrine is used: This rule is used to interpret the word/words with reference to
words found in immediate connection with them i.e. when two or more words, which are
susceptible of analogous meaning, are clubbed together, they are understood to be used in their
cognate sense. They take, as it were, their colours from each other the meaning of the more
general is restricted to a sense analogous to the less general.
® It is a well settled rule of construction that where the legislature uses the same expression in the
same statute at two places or more, then the same interpretation should be given to that
expression unless the context requires otherwise.

State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610

This is a landmark case which brought 'Hospitals' under the ambit of industry, defined under section
2(j) of Industrial Dispute act 1947)
Facts: Two employees were employed in the JJ Hospitals group as ward servants in Bombay. A
termination notice was served to them because of the retrenchment from civil supplies department and
in order to accommodate them in their place. The defendants filed a writ of mandamus before Bombay
High Court against the termination notice, contesting the notice to be improper thus contending the
termination to be invalid.
Issue: Whether a group of hospitals was an ‘industry’ within the purview of the Industrial Disputes Act,
1947?
Analysis:
(Section 2(j) provides that, “industry” means any business, trade, undertaking, manufacture of calling
of employers and includes any calling, service, employment, handicraft, or industrial occupation or
avocation of workmen.)
® Para 8 - “Prima facie, if the definition has deliberately used words of such wide import, it would be
necessary to read those words in their wide denotation; and so, read, hospitals cannot be excluded
from the definition.”
® Para 9 - “This rule, according to Maxwell, means that, when two or more words which are
susceptible of analogous meaning are coupled together, they are understood to be used in their
cognate sense. They take is it were their colour from each other, that is, the more general is restricted
to a sense analogous to a less general. The same rule is thus interpreted in “Words and Phrases”
(Vol. XIV, P. 207): “Associated words take their meaning from one another under the doctrine of
noscitur a sociis, the philosophy of which is that the meaning of a doubtful word may be ascertained
by reference to the meaning of words associated with it; such doctrine is broader than the maxim
Ejusdem Generis.” “The argument is that certain essential features or attributes are invariably
associated with the words “business and trade” as understood in the popular and conventional sense,
and it is the colour of these attributes which is taken by the other words used in the definition though
their normal import may be much wider. We are not impressed by this argument. It must be borne
in mind that Noscitur a Sociis is merely a rule of construction, and it cannot prevail in cases where
it is clear that the wider words have been deliberately used in order to make the scope of the defined
word correspondingly wider. It is only where the intention of the legislature in associating wider
 words with words of narrower significance is doubtful, or otherwise not clear that the present rule
of construction can be usefully applied. It can also be applied where the meaning of the words of
wider import is doubtful; but, where the object of the legislature in using wider words is clear and
free of ambiguity, the rule of construction in question cannot be pressed into service.”
® The Court further used the principle of ‘noscitur a sociis’ to determine whether Hospitals would
form part of Industry or not.
1. The Court referred to Maxwell’s definition of the principle, which states that the meaning of an
unclear or ambiguous word in a statute should be determined by considering the words with
which it is associated in the context. This principle aims to define the more general words of a
statute within the ambit of the meanings of more narrow and specific words.
2. The Court was of the opinion that noscitur a sociis is merely a rule of construction which can
be applied where the meaning of words of wider import has to be ascertained or the intention
of the Legislature is doubtful.
3. The Court relied upon observations in the case of Corporation of Glasgow v. Glasgow Tramway
and Omnibus Co. Ltd, wherein the learned judge held that meanings of such words wide in
their import, shouldn’t be qualified or cut down by their being associated with other words.[2]
4. The Court opined that philosophy behind the principle of noscitur a sociis is that the meaning
of doubtful words may be ascertained by reference to the meaning of words it associates itself
with.
® The Court, after careful examination and usage of principles of interpretation such as ‘noscitur a
sociis’ and ‘looking at the object and intent of legislature’ and, external aids to ascertain the wide
meanings of certain terms, held that:
1. The State is said to be carrying an ‘undertaking’ within the scope of Section 2(j) in cases where
it runs a group of hospitals for the purpose of giving medical relief to the citizens and for helping
impart medical education.
2. The Court further held that wherein an activity is undertaken with the help of employees for the
purpose of production or distribution of goods for the entire public at large, then such an activity
will be considered an ‘undertaking’.
3. The presence of profit motive isn’t a material factor for bringing an activity/undertaking within
the ambit of Section 2(j). It is in fact, the character and the nature of the concerned activity
which ascertains its character as an industry.
4. The mere fact that the activity in question is administered by the government is immaterial.
Certain activities which are undertaken for charitable motives will be considered as
‘undertaking’.
Held: Yes, “hospitals” is an industry under S. 2(j).

Pandit Ram Narain v. State of UP, AIR 1957 SC 18

The appellant was carrying on a business but was not residing within the Town Area of Karhal. The
Town Area Committee imposed a tax of Rs. 25 on him under clause (f) of a. 14(1) of the U.P. Town
Areas Act, 1914, being a tax on ‘circumstances and property’. The appellant filed a writ application in
the High Court on the ground that there could be no assessment under clause (f) because he resided
outside the jurisdiction of the Town Are& Committee. The High Court dismissed the application taking
the view that it was unnecessary to consider whether the tax could be legally imposed under clause (f)
as the tax imposed could clearly be justified under clause (d) of s. 14(1) which authorised the imposition
of a tax on trades, callings or professions.
Held:
 ® that residence was not a sine qua non for the imposition of the tax under clause (f), that the
carrying on of ’business within the Town Area was a sufficient nexus for the imposition of the
tax under clause (f) and that the assessment of the tax on the appellant under clause (f) was
legally valid.
® The legality of the tax imposed must be considered with reference to the clause under which
the assessment was actually made and a different clause under which the assessment might have
fallen cannot be called in aid of the assessment.
® Rule 3 of the ’Rules regarding the Limitations, Restrictions and Rate subject to which the
Circumstances and Property Tax shall be levied by the Town Area Committees’ framed under
s.39(2) of the Act does not go beyond s. 14(1)(f) and is not invalid.
® It was rightly pointed out that it is no sound principle of construction to interpret expressions
used in one Act with reference to their- use in another Act. The meanings of words and
expressions used in an Act must take their colour from the context in which they appear.
® It is true that in the Act under our consideration the taxes which the Town Area Committee may
impose appear under different heads in Sub-section (1) of section 14. We have already stated
that though the clauses are different, the words used in the section show that there may be
overlapping between the different clauses, and to prevent the same person being subjected to
multiple taxation, a ’proviso was incorporated in clause (f).
® In view of the words and expressions used in section 14 of the Act, we cannot accept the
argument that clause (f) should be read as entirely independent of and unconnected with the
other clauses and a different condition, namely residence within the-Town Area, must be read
as a necessary part of clause (f). To do so will be to read in clause (f) words which do not occur
there.
® The limitations for the imposition of a tax under clause (f) are given in Rule 3 and ’residence’
is only one of the alternative conditions for the imposition of the tax-not a line qua non as is
contended by learned counsel for the appellant.
® In the result, we hold that the assessment of the tax on the appellant under clause (f) of
subjection (1) of section 14 of the Act was legally valid. The appeal fails and is dismissed with
costs.
Ruling:
® Para 7 - “The important point which emerges out of these Rules is that under Rule 3 the tax assessed
on the circumstances of an assessee may be imposed on any person residing or carrying on business
within the limits of the town area; in other words, two conditions in the alternative are laid down in
Rule 3, either the person must reside within the limits of the town area or he must be carrying on
business within the limits of the said area.
There is a third condition that the residence or carrying on of business must be for a total period of
at least six months in the year of assessment. No question regarding the third condition has been
raised in this case and it is not necessary to consider that condition here.
Therefore, it is clear that if Rule 3 is valid, then the imposition of the tax on the appellant under
clause (f) is also valid, because on the finding not now in dispute the appellant carried on a trade or
business within the limits of the town area of Karhal. It has been argued before us that Rule 3 is
invalid because, under clause (f) of sub-section (1) of Section 14, residence within the town area of
the person to be taxed under that clause is a necessary condition.
We are unable to accept this argument. Clause (f) of sub-section (1) of Section 14 does not say in
express terms that residence within the town area is a necessary condition for the imposition of the
tax. The Rules make it quite clear that for each of the clauses of sub-section (1) of Section 14 there
is a “nexus” between the territorial jurisdiction of the town area Committee and the imposition of
 the tax. So far as clause (d) is concerned, the “nexus” is that the trade, calling or profession must
be carried on within the limits of the town area. So far as clause (f) is concerned, Rule 3 makes it
quite clear that the “nexus” is either residence within the limits of the town area or carrying on
business within the same limits. It is to be remembered that clause (f) was inserted by an amending
Act, namely, the Uttar Pradesh Town Areas (Validation and Amendment) Act, 1950. Section 1(2)
of the amending Act gave retrospective effect to the amendments. The proviso to clause (f) makes
it quite clear that a person who is already assessed under clauses (a) to (e) cannot be assessed again
under clause (f). The proviso is intended to avoid multiple taxation, but it is manifest from the
proviso that there may be overlapping of the different clauses in sub-section (1) of Section 14; for
example, a person may come under clause (d) as well as clause (f) if he carries on a trade within
the limits of the town area. Therefore, the proviso was necessary to prevent the same person being
taxed more than once under the different clauses of sub-section (1) of Section 14. If residence within
the limits of the town area were a sine qua non for the imposition of a tax under clause (f), no
question of overlapping between clauses (d) and (f) would arise unless the person to be taxed resided
as well as carried on a trade within the limits of the town area. If the argument of learned counsel
for the appellant is correct, then the proviso to clause (f) is meaningless insofar as it envisages an
overlapping between clause (d) and clause (f) in other cases. On a proper construction of clause (f),
read with the limitations and restrictions embodied in the Rules made under Section 39 of the Act,
it cannot be held that residence within the town area of Karhal was a necessary condition for the
imposition of the tax on the appellant.”
® Para 10 - “In the 1948 Allahabad decision, the main question was whether the provisions of Section
2, Professions Tax Limitation Act (20 of 1941) affected the powers conferred upon the District
Board by Section 108 of the U.P. District Boards Act to levy a tax on “circumstances and property”.
A subsidiary question was also raised, whether Section 131 of the U.P. District Boards Act barred
the suit. With regard to the main question, it was pointed out that the name given to a tax did not
matter; what had to be considered was the pith and substance of it. It was held that in pith and
substance the tax was one which attracted the provisions of Section 2, Professions Tax Limitation
Act (20 of 1941). A tax on “circumstances and property” is a composite tax and the word
“circumstances” means a man's financial position, his status as a whole depending, among other
things, on his income from trade or business. Far from militating against the principle that in
considering the circumstances of a person his income from trade or business within the town area
may be taken into consideration, the decision approves of the principle. In the course of his
judgment, Bind Basni Prasad, J. referred to Section 128, U.P. Municipalities Act, 1916, where
“taxes on circumstances and property” appear as a head distinct from the “taxes on trades, callings
and vocations and employments” and the argument was that the taxes being under different heads
should be treated as being entirely different, one from the other.
It was rightly pointed out that it is no sound principle of construction to interpret expressions used
in one Act with reference to their use in another Act. The meanings of words and expressions used
in an Act must take their colour from the context in which they appear. It is true that in the Act
under our consideration the taxes which the town area Committee may impose appear under
different heads in sub-section (1) of Section 14. We have already stated that though the clauses are
different, the words used in the section show that there may be overlapping between the different
clauses, and to prevent the same person being subjected to multiple taxation, a proviso was
incorporated in clause (f). In view of the words and expressions used in Section 14 of the Act, we
cannot accept the argument that clause (f) should be read as entirely independent of and
unconnected with the other clauses and a different condition, namely, residence within the town
area, must be read as a necessary part of clause (f). To do so will be to read in clause (f) words
which do not occur there.
 The limitations for the imposition of a tax under clause (f) are given in Rule 3 and “residence” is
only one of the alternative conditions for the imposition of the tax — not a sine qua non as is
contended by learned counsel for the appellant.”

Raghubans Narain Singh v. State of UP, AIR 1967 SC 465

Facts: The State of Uttar Pradesh acquired certain lands under the provisions of the Uttar Pradesh
Industrial Development Act, 1960. Raghubans Narain Singh and others, who were the landowners, filed
a writ petition challenging the validity of the acquisition proceedings. The main issue in the case was
whether the acquisition proceedings were validly initiated under the Act.
Issue: The issue in this case was whether the provisions of the Uttar Pradesh Industrial Development
Act, 1960 were properly interpreted by the High Court and whether the legal maxim noscitur a socii
was applicable in the interpretation of the relevant provisions.
Rule: The legal maxim noscitur a socii is a Latin term that means "a word is known by the company it
keeps." It is a rule of interpretation of statutes that suggests that the meaning of an unclear or ambiguous
word or phrase in a statute should be determined by the context in which it appears.
Analysis: The Supreme Court examined the provisions of the Uttar Pradesh Industrial Development
Act, 1960 and held that the legal maxim noscitur a socii was applicable in the interpretation of the
relevant provisions. The Court also held that the expression "any land required for a public purpose"
used in Section 3(1) of the Act should be construed in the context of the entire scheme of the Act and
not in isolation. The Court further held that the acquisition proceedings initiated by the State were valid
as the lands were acquired for a public purpose under the Act.
Conclusion: The Supreme Court dismissed the writ petition and held that the acquisition proceedings
initiated by the State were valid. The Court also held that the legal maxim noscitur a socii was applicable
in the interpretation of the relevant provisions of the Uttar Pradesh Industrial Development Act, 1960.

State of Assam v. Ranga Mohammad, AIR 1967 SC 903

The court applied the rule for the question of whether the HC had to be consulted by the Governor in
the transfer of a sitting Judge, and held that upon applying the rule of noscitur a socii in the instant case,
the word “posting” in the context of district judges was associated with the other words of
“appointments” as well as “promotions.” But these two words could not be interpreted to include
“transfer” as well, and hence the Governor had to consult the HC in this circumstance.

Ejusdem Generis
® The Ejusdem Generis, or ‘of the same genus’ rule, is similar though narrower than the more general
rule of noscitur a sociis. It operates where a broad or open-ended term appears following a series of
more restrictive terms in the text of a statute.
® Where the terms listed are similar enough to constitute a class or genus, the courts will presume, in
interpreting the general words that follow, that they are intended to apply only to things of the same
genus as the particular items listed.
® According to this rule, when particular words pertaining to a class or a genus are followed by
general words, the general words are construed as limited to things of the same kind as those
specified by the class or the genus.
® The meaning of an expression with wider meaning is limited to the meaning of the preceding
specific expressions. However, for this rule to apply, the preceding words must for a specific class
or genus.
® Further, this rule cannot be applied in the words with a wider meaning appear before the words with
a specific or narrow meaning.
® In UP State Electricity Board vs Harishankar, AIR 1979, SC held that the following conditions
must exist for the application of this rule –
a. The statue contains an enumeration of specific words
b. The subject of the enumeration constitutes a class or a category
c. The class or category is not exhausted by the enumeration
d. A general term is present at the end of the enumeration
e. There is no indication of a different legislative intent
If the words were intended to be given its natural meaning then no restrictive interpretation should be
given by resorting to the principle of Ejusdem generis. For the application of this principle, there must
be a distinct genus or category running through the words. If that is not there, this rule cannot be
applied. (MANUPATRA CITATION FOR CASES BELOW).

Siddeshwari Cotton Mills (P) Ltd. v. UOI, (1989) 2SCC 458

Ejusdem Generis can only apply if the specific words point towards a common category.
Facts: Under Notification 230/77.CE issued by Central Government under Rule 8(1) of the Central
Excise Rules, 1944, exempts from the whole of the duty of Excise ‘unprocessed’ cotton fabric, under
sub-item [1] of item No. 19 of the First Schedule to the Act, which is manufactured on power looms
[without spinning or processing plants]. The question in the appeal is whether such cotton fabric ceases
to be” unprocessed” if it subjected to calendaring.
Section 2[f][v] reads: “in relation to goods comprised in Item No. 19-1 of the Schedule to the Central
Excise Tariff Act, 1985, includes bleaching, mercerising, dyeing, printing, water-proofing, rubberising,
shrink-proofing, organdie processing or any other process or any one or more of these processes.” Then,
if calendaring falls within the interpretation of any other process, the cotton would not remain
unprocessed and would be subject to Excise duty.
Judgement:
® In Para 7, the court first explained the principle of ejus-dem-generis: “The expression ejus-dem-
generis...'of the same kind or nature'...signifies a principle of construction whereby words in a
statute which are otherwise wide but are associated in the text with more limited words are, by
implication, given a restricted operation and are limited to matters of the same class or genus as
preceding them.” “The principle underlying this approach to statutory construction is that the
subsequent general words were only intended to guard against some accidental omission in the
objects of the kind mentioned earlier and were not intended to extent to objects of a wholly different
kind.”
® Then, in Para 8, the court imposed an additional rule on when the principle of ejus-dem-generis
would be attracted: “The preceding words in the statutory provision which, under this particular
rule of construction, control and limit the meaning of the subsequent words must represent a genus
or a family which admits of a number of species or members.” This means that the specific words
must point towards a common category, and then the general words would include any omission
from that common category. In Para 8, the Court found that the expressions 'bleaching,
mercerising, dyeing, printing, water proofing, rubberising, shrink-proofing, organdie processing,
which precede the expression 'or any other process' contemplate processes which impart a change
 of a lasting character to the fabric by either the addition of some chemical into the fabric or
otherwise. 'Any other process' in the section must, share one or the other of these incidents.
® Then, in para 9, the Court found that the process of calendaring must share one of the other of the
incidents mentioned above to fall within the interpretation of any other process. It called for a fresh
investigation as the process of calendaring had not been investigated to consider whether it satisfied
the above requirement.

Hamdard Dawakhana v. UOI, AIR 1965 SC 1167

Ejusdem generis will not apply if the specific words do not point towards a specific category. (similar
to prev)
Facts: The appellants manufactured a medicated syrup which contained fruit juices for medicinal use
called “Sharbat Rooh Afza”. Central Government made an Order called the Fruit Products Order, 1955
under Section 3 of the Essential Commodities Act. One of the amendments to the order required the
minimum percentage of fruit juice in a fruit syrup to be raised from 10% to 25%. The appellants had
been directed to alter their product to suit this requirement, but refused to do so. Appellants argued that
said Sharbat is not a foodstuff, but a medicinal product and as such its production could not be regulated
under Section 3 of the Act. Clause 2 of the Fruit Products defines ‘fruit product’. Clause 2(d)(v) takes
in squashes, crushes, cordials, barely water, barreled juice and ready-to-serve beverages or any other
beverages containing fruit juices or fruit pulp. In para 5, The appellant argued that their product was
not an essential commodity, nor was it a fruit product as defined under Clause 2(d) of the fruit Order.
Judgement:
® In para 17, The court found that ejusdem generis could not be properly invoked in this case as the
previous categories of beverages in 2(d)(v) did not invoke a category of genus by reference to which
the rule of ejusdem generis can be properly invoked. “Besides, the context of the clause clearly
suggests that it is intended to take in all beverages other than those earlier specified, provided they
contain fruit juices or fruit pulp. Therefore, we feel no difficulty in holding that the Sharbat in
question falls within the purview of clause 2(d)(v) of the Fruit Order and as such, its production can
be controlled by its relevant provisions.”

Smt Lilavati Bai v. State of Bombay, AIR 1957 SC 521

Similar to 1st case, if legislature does not intend to restrict the meaning of general words, then ejusdem
juris cannot be applied to restrict it.
Facts: The petitioner was a widow of a tenant of certain premises. A third party had occupied the said
premises, and it was alleged that the tenancy of window has ended. Finding the premises vacant, the
respondent requisitioned the premises under Sec 6(4)(a) of the Bombay Land requisition Acct 1948, for
public purpose of the housing a government servant. In Explanation (a) to Section 6 of the Act, it states
that for the purposes of requisitioning, any premises shall be deemed to be or become vacant when such
landlord ceases to be in occupation or when such tenant or sub-tenant ceases to be in occupation upon
termination of his tenancy, eviction, assignment or transfer in any other manner of his interest in the
premises or otherwise, notwithstanding any instrument or occupation by any other person prior to the
date when such landlord, tenant or sub-tenant so ceases to be in occupation.
Judgement:
® In para 12, the petitioner contended that in the present case, there was no termination, eviction,
assignment or transfer and that the words "or otherwise" must be construed as ejusdem geners with
the words immediately preceding them, and thus there was no vacancy. However, in para 12, the
 court rejected the application of ejusdem generis here. The legislature, when it used the words “or
otherwise” used it not as words of limitation but of extension. It apparently intended to cover other
cases which may not come within the meaning of the preceding clause, such as a case where the
tenant’s occupation has ceased as a result of trespass by third party. “The legislature, in our opinion,
intended to cover all possible cases of vacancy occurring due to any reasons whatsoever. Hence,
far from using those words ejusdem generis with the preceding clauses of the explanation, the
legislature used those words in an all-inclusive sense.”
® In para 13, the Court cited the case of Skinner & Co. v. Shew & Co. [1893] 1 Ch. D. 413 to explain
the consideration of legislative intent in applying the rule of ejusdem generis. “The rule of ejusdem
generis is intended to be applied where general words have been used following particular and
specific words of the same nature on the established rule of construction that the legislature
presumed to use the general words in a restricted sense; that is to say, as belonging to the same
genus as the particular and specific words. Such a restricted meaning has to be given to words of
general import only where the context of the whole scheme of legislation requires it. But where the
context and the object and mischief of the enactment do not require such restricted meaning to be
attached to words of general import, it becomes the duty of the courts to give those words their
plain and ordinary meaning.”

Attorney General v. Brown, (1920) 1 KB 773

If legislative intends to accord narrow interpretation to a provision, then ejusdem generis should apply.
Facts: With regards to the import of pyrogallic acid, which was prohibited under the Prohibition of
Import (No.32) Proclamation, 1919 (2) [Prohibits then import of “chemicals of all descriptions”.] The
said goods were forfeited to his Majesty as they were alleged to be unlawfully imported, and the
defendant had claimed them. The proclamation was made under S.43 of the Customs Consolidation
Act, 1876. That section authorizes a Proclamation prohibiting the importation not only of arms,
ammunition and gunpowder, but of “any other goods”. The court here had to consider whether
pyrogallic acid would fall within the interpretation of “any other goods” under S43 and then be
prohibited.
Judgement: The Court first explained the principle of ejusdem generis; to do this, it referred to the
judgment of Lord Campbell C.J. in Reg. v. Edmundson (1), where he says (2): " I accede to the principle
laid down in all the cases which have been cited, that, where there are general words following particular
and specific words, the general words must be confined to things of the same kind as those
specified." The Court that to accord a narrower construction to a statute, and apply the doctrine of
ejusdem generis, the intention of the legislature has to be considered from: (1.) The state of the law at
the time the Act of Parliament was passed, and the changes it was passed to effect; (2.) The sections
and structure of the Act of Parliament as a whole. If from these factors, in a particular case, there is a
strong evidence that the meaning of the general words is to be restricted, then the doctrine of ejusdem
generis will be applicable. In the present case, as the court found strong reasons: (a) from the history
and circumstances connected with its passing, (6) from the structure of the Act itself, to indicate the real
meaning of the Legislature, the court applied the ejusdem generis to the construction of s. 43. Thus, the
meaning of the general words must be restricted to that of the particular words which precede them, and
that "any other goods " means goods of the class of arms, ammunition, and gunpowder.
 WEEK 9: Presumptions (Presumption is rebuttable)

Words in a statute are used precisely and not loosely

Mayor, Councillors & Burgesses v. Taranaki Electric Power Board, AIR 1933 PC 216
Facts: A Municipal Corporation Act allowed an electric supplier of a particular borough to enter into a
contract with the local authority of any neighbouring district to supply electricity to such local authority.
Issue: Whether the board is allowed to contract with neighbouring districts?
Holding: “Neighbouring” means adjoining. “Adjoining” means sharing boundaries. The words is to
be read precisely and cannot be interpreted loosely to mean neighbouring boroughs. Thus, the board is
not allowed to enter into the said contracts with boroughs that are not adjoining it.
It ought to be the rule and we are glad to think that it is the rule that words are used in an Act of
Parliament correctly and exactly and not loosely and inexactly. Upon those who assert that that rule has
been broken the burden of establishing their proposition lies heavily. And they can discharge it only by
pointing to something in the context which goes to show that the loose and inexact meaning must be
preferred.”
® Para 3 - “It ought to be the rule and we are glad to think that it is the rule that words are used in an
Act of Parliament correctly and exactly and not loosely and inexactly. Upon those who assert that
that rule has been broken the burden of establishing their proposition lies heavily. And they can
discharge it only by pointing to something in the context which goes to show that the loose and
inexact meaning must be preferred.”

Mens Rea is generally required for a criminal act

® Generally required for a criminal act.
® A statute may define a state of mind as an element of an offence, either by express words or by
implication or by being silent.
® Unless mens rea is ruled out by necessary implications, a court should guard the liberty of a subject
and not find a man guilty unless he is proved to have a guilty mind.

Ravula Hariprasada Rao v. State, AIR 1951 SC 204

Summary of judgement – Usually, mens rea required for principle to be held liable for his
employees’ offences, unless the text of the statute states otherwise for specific provisions or for
the Act as a whole.
Unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of
the crime, a person should not be found guilty of an offence against the criminal law unless he has got
a guilty mind. Clauses 22 and 25 of the Motor Spirit Rationing Order, 1941, read with the Defence
of India Rules, 1939, do not rule out the necessity of mens rea. Therefore, where the employees of the
licensee of a petrol filling station supply petrol to a car-owner without taking coupons and thus act in
contravention of the provisions of the said clauses, the licensee, who was not present when the
wrongful act was done and had no knowledge of it, could not be convicted for contravention of the said
clauses under r. 81 (4) of the Defence of India Rules, 1939.
Clause 27 of the said Order is however differently worded and imposes a duty on the supplier
to endorse or cause to be endorsed the registration or other identifying mark of the vehicle to which
petrol is furnished and if these particulars are not endorsed by his employees on the petrol coupons
against which petrol is supplied the supplier would be liable even if he had no knowledge of the
wrongful act of his employees.
Ruling:
® Para 4 - Rule 81(2) of the Defence of India Rules empowers the Central or the Provincial
Government to provide by order, in certain circumstances, for regulating amongst other matters,
distribution, disposal, use or consumption of articles or things and for requiring articles or things
kept for sale to be sold either generally or to specified persons or classes of persons or in specified
circumstances.
® Para 10 - The language of clause 22 does not lend support to the contention that even an innocent
master will be criminally liable for an act of his servant.
® Para 11 - In the course of the arguments, reference was made on behalf of the appellant to the
decision of the Bombay High Court in Isak Solomon Macmull v. Emperor which is a case relating
to the contravention of clause 22 of the Motor Spirit Rationing Order. In that case, the learned Chief
Justice, who delivered the judgment, referred to the well-established rule that unless a statute either
clearly or by necessary implication rules out mens rea as a constituent part of a crime, the defendant
should not be held guilty of an offence under the criminal law unless he has a guilty mind. Relying
upon this rule, he held that where a servant sells petrol to a bogus customer in the absence of
coupons in contravention of the Motor Spirit Rationing Order, and the master is not present at the
time nor has he any knowledge of the supply of petrol by the servants to the bogus customer, the
master cannot be held to be vicariously liable for the act of the servant. In our opinion, this decision
is correct and is directly applicable to the present case.
® Para 12 - The definition of the word “supplier” in the Act has already been quoted, and there can
be no doubt that if clause 27-A is contravened, a person who comes within the definition of the
word ‘supplier’ must be held guilty of the contravention. (For one of the charges, the statute says
‘supplier’ is liable and hence, only for this particular violation, the appellant was charged – the
other provisions did not directly mention supplier).

Sarjoo Prasad v. State of UP, AIR 1961 SC 631

Facts:
® This case is regarding the adulteration of food and its sale.
® Prevention of Adulteration of Food Act: Section 7: No person shall himself or by any person on his
behalf shall sell any adulterated food.
® Section 1: Any person himself or by any person on his behalf sells any article of food in
contravention of any provisions of this Act, he shall be punishable. Sarju was an agent of Thakur
Gill and he was caught selling adulterated oil.
Issue: Whether Sarju is liable for having sold the oil?
Claim – agents are generally not aware of adulteration in the goods that they sell.
Held: We know Thakur is definitely liable. Generally, you are expected to know what you are selling.
However, it can be proved otherwise. If it can be shown, then your liability decreases. Thakur was held
liable. Sarju’s punishment was mitigated owing to circumstances.
® Para 4 - By the collocation of the expression, “no person shall himself or by any person on his
behalf”, the employer alone is not prohibited. The intention of the Legislature is plain. Every person,
be he an employer or an agent is prohibited from selling adulterated food and infringement of the
prohibition is by Section 16 penalized.
® Para 5 - The intention of the Legislature must be gathered from the words used in the statute and
not by any assumptions about the capacity of the offenders to appreciate the gravity of the acts done
 by them. There is also no warrant for the assumption that the servants employed in shops dealing
in food stuff are generally illiterate.

Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881

Ranjit was on of the partners of book firm that owned a bookshop. It found to be in possession of sale
of copies of an obscene book called Lady Chatalet’s lover, the unexpurgated version which interalia
contained obscene matter. Ranjit was prosecuted u/s 292 of IPC. Is he liable?
Claim: he was not aware that it was an obscene book.
Issue: The validity of Section 292 of the Indian Penal Code and the proper interpretation of the section
and its application to the offending novel. Does mens rea extend to requiring knowing the content of
the book before putting it into circulation?
Appellant argued that (i); (ii); (iii)
® Para 8 – Issue 1 – Whether Section 292 of the Indian Penal Code is void as being an impermissible
and vague restriction on the freedom of speech and expression guaranteed by Article 19(1)(a) and
is not saved by clause (2) of the same article?
The court held that Article 19(1)(a) is subject to reasonable restrictions which may be thought
necessary in the interest of the general public and one such is the interest of public decency and
morality. Section 292 of the Indian Penal Code manifestly embodies such a restriction because the
law against obscenity, of course, correctly understood and applied, seeks no more than to promote
public decency and morality. The word obscenity is really not vague because it is a word which is
well understood even if persons differ in their attitude to what is obscene and what is not.
® Para 10 – Issue 3 - Whether the possession or sale to be punishable under the section must be with
the intention to corrupt the public in general and the purchasers in particular. [Court did not accept
the argument that the possession or sale must be with the intention to corrupt the public and
purchasers]
The first sub-section of Section 292 (unlike some others which open with the words “whoever
knowingly or negligently etc.”) does not make knowledge of obscenity an ingredient of the offence.
The prosecution need not prove something which the law does not burden it with. If knowledge
were made a part of the guilty act (Actus Reus), and required the prosecution to prove it, it would
place an almost impenetrable defence in the hands of offenders. Something much less than actual
knowledge must therefore suffice…. We can only interpret the law as we find it and if any exception
is to be made it is for Parliament to enact a law.
® Para 14 – Issue 2 - Even if Section 292 of the Indian Penal Code, be valid, the book is not obscene
if the section is properly construed and the book as a whole is considered?
Hicklin case - Test for obscenity - whether the tendency of the matter charged as obscenity is to
deprave and corrupt those whose minds are open to such immoral influences, and into whose hands
a publication of this sort may fall ... it is quite certain that it would suggest to the minds of the young
of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous
character.
® Para 21 – An overall view of the obscene matter in the setting of the whole work would, of course,
be necessary, but the obscene matter must be considered by itself and separately to find out whether
it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds
are open to influences of this sort and into whose hands the book is likely to fall.
® Para 22 – In our opinion, the test to adopt in our country is that obscenity without a preponderating
social purpose or profit cannot have the constitutional protection of free speech and expression and
obscenity is treating with sex in a manner appealing to the carnal side of human nature, or having
 that tendency. Such a treating with sex is offensive to modesty and decency but the extent of such
appeal in a particular book etc. are matters for consideration in each individual case.
® Para 29 - Court held that the book comes within the scope of test for obscenity.

Vested Rights are not taken away without express words, necessary implication
or compensation.
Radhakrishna Ayyar v. Sundaraswamier, AIR 1922 PC 257
Facts:
® The original plaintiff is a Receiver appointed by the Court, and the plaintiff-respondent
represents the proprietors of an Inam village called Kadiramangalam.
® The appellants are occupancy ryots with permanent tenure rights.
® Previous decrees have determined the rights of the Inamdar in similar cases.
® The Inamdar tendered pattahs to the tenants, who refused to accept them or grant muchilikas.
® The present suit was brought to enforce the terms of the pattahs.
Issue: The main issue is the correct interpretation of the pattahs.
Rule:
® The Madras Estates Land Act and its provisions govern the rights and obligations of the parties.
® Chapter 4 of the Act applies to all ryots with a permanent right of occupancy.
® The terms of the pattahs must be interpreted correctly.
Analysis:
® The tenants have contravened the terms of the pattahs by carrying away the yield without
fulfilling the obligations specified.
® Clause 8 of the pattahs becomes applicable in this case.
® The question is the meaning of the expression "the total yield" in Clause 8 and its implications
for the payment of melvaram paddy.
Judgment:
® The Inamdar having again tendered pattahs in terms of Sect. 54 and the other relative sections, and
the tenants having notwithstanding previous decrees again refused to accept the terms or to grant
muchilikas, and the terms of the pattahs having been entirely approved by the Collector, the present
suit had to be brought.
® The pattahs tendered are in terms of previous pattahs upon which judgment and decree was passed.
It stands to reason, and it is in accordance with Sects. 27 and 28, that the old rent thus decreed shall
continue, until reduced or enhanced by special applications under the statute.
® No such applications have been made. All that remains in the case is the correct interpretation of
the pattahs.
® It must not be forgotton that even in regard to penal provisions with a strict construction, no
construction is open to a Court of Law which is in violation of what that Court considers to be the
true meaning of the provision, That is a sound general principle.
Conclusion:
® The tenants' actions violated the terms of the pattahs.
® Clause 8 of the pattahs comes into operation, and the tenants are liable to pay melvaram paddy
based on the total yield of paddy calculated at a specified rate.
® The correct interpretation of the pattahs supports the plaintiff's claim.
 Retrospective Operation
® Laws are generally made to be prospective unless expressly made retrospective.

Pyare Lal Sharma v. Managing Director, J&K Industries Ltd., (1989) 3 SCC 448
Brief Facts: Pyare Lal Sharma joined the company as Assistant Chemical Engineer on 12-7-1972.
There were several conflicts between him and the management which also included him absenting
himself on several occasions.
® Para 9 - Regulation 16.14 of Jammu and Kashmir Industries Employees Service Rules and
Regulations before amendment was as under:
The service of the permanent employee shall be terminated by the company, if (a) his post is
abolished, or (a) he is declared on medical grounds to be unfit for further service after giving three
months' notice or pay in lieu thereof. For similar reasons the service of a temporary employee also
be dispensed with after giving him one month's notice or pay in lieu thereof.
The above-quoted Regulation 16.14 was amended on 20-4-1983. Amended regulation is as under:
16.14. The services of an employee shall be terminated by the company if:
(a) his post is abolished, or
(b) he is declared on medical grounds to be unfit for further service, or
(c) if he remains on unauthorised absence, or
(d) if he takes part in active politics.
In the case of (a) and (b) above the services shall be terminated after giving three months' notice
to a permanent employee and one month's notice to a temporary employee or pay in lieu
thereof. In the case of (c) and (d) above the services of an employee shall be terminated if he
fails to explain his conduct satisfactorily within 15 days from the date of issue of notice. The
management shall be empowered to take a decision without resorting to further enquiries. By
order of the Board of Directors - The Company terminated him under Clause (c) of Regulation
16.14.
Key Issue: Whether the period of absence, which was prior to the date of coming into force of the
amended Regulation 16.14, could be taken into consideration for invoking ground (c) of the regulation?
(RETROSPECTIVE OPERATION)
Ruling:
® Para 21 – This takes us to the last point which we have discovered from the facts. Regulation 16.14
before amendment consisted of only clauses (a) and (b) relating to abolition of post and unfitness
on medical ground. The company had no authority to terminate the services of an employee on the
ground of unauthorised absence without holding disciplinary proceedings against him. The
regulation was amended on 20-4-1983 and grounds (c) and (d) were added. Amended regulation
could not operate retrospectively but only from the date of amendment. Ground (c) under which
action was taken came into existence only on 20-4-1983 and as such the period of unauthorised
absence which could come within the mischief of ground (c) has to be the period posterior to 20-4-
1983 and not anterior to that date. The show-cause notice was issued to Sharma on 21-4-1983. The
period of absence indicated in the show-cause notice is obviously prior to 20-4-1983. The period of
absence prior to the date of amendment cannot be taken into consideration. When prior to 20-4-
1983 the services of person could not be terminated on the ground of unauthorised absence from
duty under Regulation 16.14 then it is wholly illegal to make the absence during that period as a
ground for terminating the services of Sharma. It is basic principle of natural justice that no one can
be penalised on the ground of a conduct which was not penal on the day it was committed. The date
of show-cause notice being 21-4-1983 the unauthorised absence from duty which has been taken
 into consideration is from 20-12-1982 to 20-4-1983. Whole of this period being prior to the date of
amendment of Regulation 16.14 the same could not be made as a ground for proceeding under
ground (c) of Regulation 16.14. The notice served on the appellant was thus illegal and as a
consequence the order of termination cannot be sustained and has to be set aside.

Statutes are not intended to be inconsistent with international law

® Presumption is that laws are drafted to be consistent with the well-established rules of international
law. In case of conflict between IL and municipal law, municipal law will prevail.
® Courts must adopt that interpretation that will not be in conflict with rights and obligations flowing
with international law.
® In the event of inconsistency, municipal law will prevail. The court, as far as possible, must choose
an interpretation that resonates with international law.

ADM, Jabalpur v. Shiva Kant Shukla, (1976) 2 SCC 521

J. Khanna’s dissent – Article 21 can’t be suspended during emergency.
Universal Declaration of Human Rights (UDHR)
Under Art 359 of the Constitution, the President can suspend fundamental rights at the time of
emergency. Now the question is whether Article 20+21 be suspended as well.
Khanna uses the rule of consistency with the international rule of UDHR and says that the state can’t
suspend Art 20+21. But this was a dissenting judgment and later on we had the 44th Constitutional
Amendment where it was said that Art 20+21 couldn’t be suspended during emergencies.
While interpreting whether a habeas corpus petition would lie during an emergency under the MISA,
the dissenting judge stated that:
® Para 541 – If, however, two constructions of the municipal law are possible, the courts should lean
in favour of adopting such construction as would make the provisions of the municipal law to be in
harmony with the international law or treaty obligations. Every statute, according to this rule, is
interpreted, so far as its language permits, so as not to be inconsistent with the committee of nations
or the established rules of international law, and the court will avoid a construction which would
give rise to such inconsistency unless compelled to adopt it by plain and unambiguous language.
But if the language of the statute is clear, it must be followed notwithstanding the conflict between
municipal and international law which results. The rule about the construction of municipal law
also holds good when construing the provisions of the Constitution as would appear from
International Law by Fenwick, Third Edition, page 90, wherein is observed: "But while in the case
of a direct conflict between national and international law, the rule of national law will of necessity
take priority until changed to conform to the international obligations of the state, there are
numerous cases in which the provisions of the national constitution of the provisions of a particular
legislative act are not so but that they may be interpreted so as to enable the executive and the
judicial agencies of the state to act in accordance with the obligations of international law." (1)
[1969] 1 All E. R.80.
® Para 542 – A rule of Municipal Law, which ostensibly seems to conflict with the Law of Nations,
must, therefore, if possible, always be so interpreted as to avoid such conflict.
 The legislature does not commit mistakes or make omissions
® If the precise words of the statute are plain and unambiguous, courts are bound to construe them in
an ordinary sense, even if it leads to absurdity or manifest injustice.
® Words can only be modified if their meaning is obscure.
The duty of the court is to construe law as it stands and not to make laws.
® No court is competent to proceed on the presumption that the legislature made a mistake because
there is a strong presumption that the legislators don’t make mistakes.
® Clerical or printing errors may be corrected as can an accidental omission in the schedule.

Nalinakhya v. Shyam Sunder Haldar, AIR 1953 SC 148

Issue: Whether a statute that provides certainty in relation to a decree extends in orders passed by the
Court?
Facts: Tenant didn’t pay rent.
Held: The court rules that when the rule says decree, it does not include order. Marginal notes have no
say when the text of the statute is clear. Therefore, no vacation of order.
Judgement:
Section 43 of the Presidency Small Cause Courts Act, 1882, provides that if the occupant does not
appear at the time appointed by the landlord or show cause to why he should not be compelled to deliver
up the property, the applicant landlord shall, if the court is satisfied that he is entitled to apply under
Section 41, be entitled to an order addressed to a Bailiff of the court directing him to give possession of
the property to the applicant on such date as the court thinks fit to name in such order. Although under
the rules framed under the Act this application under Section 41 is initiated by a plaint there is no dispute
that the proceeding is not a suit and the order for delivery of possession does not strictly speaking
amount to a decree for recovery of possession. Section 19 of the Act peremptorily provides, inter alia,
that the Small Causes Court shall have no jurisdiction in suits for recovery of immovable property. The
only question for consideration, therefore, is whether Section 18(1) of Act 17 of 1950 (the Temporary
Provisions Act) applies to an order for possession made under Section 43 of the Presidency Small Cause
Courts Act, 1882. Marginal note of section 18(1) – Power of Court to rescind or vary decrees and orders
or to give relief in pending suits in certain orders.
® Para 5 - The marginal note cannot control the meaning of the body of the section if the language
employed therein is clear and unambiguous. If the language of the section is clear then it may be
that there is an accidental slip in the marginal note rather than that the marginal note is correct and
the accidental slip is in the body of the section itself.
® Para 7 - The language of Section 18(1) attracts the relevant provisions of the 1948 Act and,
therefore, the word “decree” occurring in Section 18(1) must necessarily be construed in the light
of the 1948 Act and it is clear that so construed it cannot cover “order” for possession made under
Chapter VII of the Presidency Small Cause Courts Act. [Meaning of ‘decree’ taken from CPC
cannot cover “order of possession” mentioned in section 43 of the PSCC Act].
® Para 9 - It is not competent to any court to proceed upon the assumption that the legislature has
made a mistake. The Court must proceed on the footing that the legislature intended what it has
said. Even if there is some defect in the phraseology used by the legislature the court cannot, as
pointed out in Crawford v. Spooner, aid the legislature's defective phrasing of an Act or add and
amend or, by construction, make up deficiencies which are left in the Act. Even where there is a
casus omissus, it is, as said by Lord Russell of Killowen in Hansraj Gupta v. Official Liquidator of
Dehra Dun-Mussoorie Electric Tramway Co., Ltd., for others than the courts to remedy the defect.
In our view it is not right to give to the word “decree” a meaning other than its ordinary accepted
meaning and the previous cases were not correctly decided.
G. Narayanaswami v. G. Pannerselvam, (1972) 3 SCC 717
Facts:
® The respondent challenged the appellant selection to the Madras Legislative, Council from the
Madras District Graduates' Constituency on the grounds, (1) that, the purpose of Art. 171 of the
Constitution was to confer a right of functional representation upon persons possessing certain
educational or other qualifications so that the appellant who was not a graduate could not be elected
to the Legislative Council from the Graduates' Constituency; (2) that, it would be absurd and
destructive of the concept of representation that an individual, who did not possess the essential or
basic qualification of the electors, should be their representative, and (3), that, the Constitution,
being an organic instrument, must be interpreted in a broad and liberal manner so as to give effect
to the underlying principles and purposes of the system of representation sought to be embodied in
it.
® The High Court set aside the election.
Court on Interpretation:
® The legislative history of the Article also shows that the omission by the Constitution makers or by
Parliament, to prescribe graduation as a qualification of the candidate from the Graduates'
constituency, was deliberate.
® The provisions of the Government of India. (Provincial Legislative Assemblies) Order, 1936,
prescribing the qualifications of persons to be chosen from special constituencies set up for
representation in the Legislative Councils under the Government of India Act, 1935, indicates that
it was invariably expressly provided where it was so intended, that a necessary qualification of a
candidate for a seat was that he should be entitled to vote for the choice of a member to fill it. Such
a qualification was not left to mere implication. [181H-182E] (3)
® It is true that a constitution should be interpreted in a broad and generous spirit, but the rule of
"plain meaning" or "literal" interpretation could not altogether be abandoned. The object of
interpretation is to discover the intention of the law makers, and this object can obviously be best
achieved by first looking at the language used in the relevant provisions.
® A logical corollary of the rule of literal interpretation is that a statute may not be extended to meet
a case for which provision has clearly and undoubtedly not been made; and an application of this
rule necessarily involves that addition to, or modification of, words used in statutory provisions is
not generally permissible. Courts may depart from this rule only to avoid a patent absurdity.
® We can see that in this case the court as resorted to various intrinsic and extrinsic aids for
interpretation. But more emphasis in this case was given to the golden rule of interpretation so as
to avoid the absurdity arising out of use of the literal rule of interpretation. The court by doing so,
has avoided the mistake done by the legislators in describing in words the true intent of the
legislature.
Held:
® Para 15 - It may well be that the Constitution-makers, acting upon such a presumption, had
intentionally left the educational qualifications of a candidate for election from the graduates'
constituency unspecified.
® Para 16 –In the case before us, it could not possibly be said that the question to be dealt with was
not “known” to the legislators. It could not even be said that qualifications of the electors as well
as of those to be elected were not matters to which the attention of the law-makers, both in the
Constituent Assembly and in Parliament, was not specially directed at all or that the omission must
be by mere oversight. The provisions discussed above demonstrate amply how legislative attention
was paid to the qualifications of the electors as well as of the elected in every case. Hence, the
correct presumption, in such a case, would be that the omission was deliberate.
® Para 18 – We think that the view contained in the Judgment under appeal, necessarily results in
writing some words into or adding them to the relevant statutory provisions to the effect that the
candidates from graduates' constituencies of Legislative Councils must also possess the
qualification of having graduated. This contravenes the rule of “plain meaning” or “literal”
construction which must ordinarily prevail. A logical corollary of that rule is that “a statute may not
be extended to meet a case for which provision has clearly and undoubtedly not been made”. In Hira
Devi v. District Board, Shahjahanpur [(1952) 2 SCC 154 : 1952 SCR 1122 : AIR 1952 SC 362 at
365 : 1952 SCJ 533] this Court observed: “No doubt it is the duty of the Court to try and harmonise
the various provisions of an Act passed by the Legislature. But it is certainly not the duty of the
Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of
an Act.”

Presumptions Relating to Jurisdiction of Courts

® Statutory provisions that grant jurisdiction must be interpreted strictly. For Courts with general
jurisdiction, the exclusion of their jurisdiction cannot be assumed. It has to be explicitly expressed
in the statute.
® There are 3 possible scenarios:
1. A liability exists in common law and a statute provides for a specific remedy. Both
statutory and common-law remedies co-exist unless statutory law excludes the
common law remedies.
2. The right to sue is provided for in statutes without a specific remedy. In such a case
only the common law remedy will be available.
3. The statutes create a liability not existing in common law. In such a case, remedy exists
only under the statutory law.

Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government, (1960) AC 260 (HL)
Facts: The Town and Country Planning Act, 1947 restricted the owner rights to deal with their own
land for development and provided that permission is required from the local authority in order to
engage in any development. An exception was granted to any development authorized by any local or
private act of the Parliament, which may be undertaken without permission. Tyx was authorized to
develop i.e., quarrying certain lands in certain areas of North Malvern under the private act of
Parliament. (Malvern Hills Act) They bring a case against the local authority that they don’t need
permission as they are authorized. Case in High Court, MoH claims no jurisdiction of the court. The
MoH contended that issues related to planning permission were outside the scope of the court's authority
and should be dealt with by the local authority.
Ultimately, the case reached the House of Lords, the highest court in the United Kingdom at that time.
The House of Lords considered the jurisdictional question and ruled that the court did have the authority
to hear the case. They held that the issue at hand was not solely a matter of planning permission but
also involved the interpretation and application of the private act of Parliament (Malvern Hills Act)
which authorized the development.
Therefore, the House of Lords allowed Tyx Granite Co. Ltd. to proceed with their case against the
Ministry of Housing and Local Government, stating that the court had the jurisdiction to hear and
determine the matter. The decision clarified that in cases where the interpretation and application of a
private act of Parliament were involved, the court had the authority to intervene and provide a legal
remedy.
 Legislature knows the existing law and does not intend to alter it except by express
enactment
® When the legislature re-enacts on a given subject matter, one must presume that it was aware of the
provisions of the previous law and inconsistencies identified by the Court.

Abdur Rahim v. Mahomad Barkat Ali, AIR 1928 PC 16

There is a waqf property inherited by some people. Land had a mosque and other part had tenants. Court
agreed that mosque was waqf’s property only and other part was secular property inherited by the sons.
Few years later, some random people bring in a case against the heirs saying that the entire property
was waqf property under section 92 of CPC.
In Abdur Rahim v. Mahomad Barkat Ali, AIR 1928 PC 16, the court emphasized the principle that the
legislature is presumed to be aware of the existing laws and does not intend to alter them unless
explicitly stated in a new enactment. This principle was invoked in relation to the interpretation of
Section 92 of the Code of Civil Procedure (CPC).
The court's reasoning revolved around the understanding that Section 92 of the CPC provides for legal
action in relation to public or religious charities. The court acknowledged that the legislature was well
aware of the existing laws regarding waqf properties and their classification. The court observed that if
the legislature intended to include secular properties within the ambit of Section 92, it would have
expressly stated so in the legislation.
Based on this principle of legislative intent, the court concluded that the legislature did not intend to
alter the existing law regarding the classification of property as waqf or secular unless explicitly
provided for in the legislation. Therefore, the court maintained its previous finding that only the mosque
portion of the property qualified as waqf property, while the remaining portion inherited by the sons
was secular property.
By emphasizing the principle that the legislature knows the existing law and does not intend to alter it
except by express enactment, the court highlighted the importance of clear legislative intent in
interpreting and applying laws. It established that the court's role is to interpret legislation as it stands,
without assuming alterations to the existing legal framework unless explicitly stated by the legislature.
 WEEK 10: Internal Aids to Construction

Aids:
◦ As courts for the purpose of interpretation need to take recourse to various internal and external
aids, these aids are a device that helps to assists them to do so.
◦ Internal aids are the materials which are a part of the statute itself, even if they may not be a
part of the enactment.
◦ In case, internal aids such as the title, preamble, etc. are not adequate, the courts take recourse
to external aids, which include materials such as historical history, parliamentary material, etc.
◦ The Supreme Court in various cases has remarked the following: “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.” (B. Prabhakar Rao and others v. State of A.P., AIR 1986 SC 120).
◦ “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.” (District Mining Officer and Others v. Tata Iron and Steel
Co. and Another, (2001) 7SCC 358).
◦ “Interpretation of statute being an exercise in the ascertainment of meaning, everything which
is logically relevant should be admissible..” (K.P. Varghese v. Income Tax Officer Ernakulam,
AIR 1981 SC 1922).
◦ “Noting in files of various officials do not fall under category of internal aid.” (Doypack
Systems Pvt. Ltd. Etc. v. UOI & Others (1988 AIR 782).

Internal Aids:
q Title
q Preamble
q Headings
q Marginal notes
q Punctuation
q Illustrations
q Definitions
q Proviso
q Explanation
q Schedule

Title
Long Title gives a general description of the object of the Act, and it often precedes the preamble of the
Act. Although the title is a part of the Act, it is in itself not an enacting provision and though useful in
cases where the ambiguity in the enacting provision needs to be resolved, it is ineffective in controlling
the common meaning of a statutory provisions.
 Preamble
® Preamble is the act in a nutshell. It is a preparatory statement.
® It contains the recitals showing the reason for enactment of the particular act.
® If the language of the act is clear the preamble must be ignored. The preamble is an intrinsic aid in
the interpretation of an ambiguous act.
® If any doubts arise from the terms employed by the Legislature, it has always been held a safe means
of collecting the intention, to call in aid to understand the ground and cause of making the statute
and to have recourse to the preamble.
® Like the long title of a statute, the preamble of a statute is also a part of the Act and is an admissible
aid to construction.
® It is not an enacting part, but it is expected to express the scope, object and purpose of the Act more
comprehensively than the long title. The role of the preamble in interpretation cannot be curtailed
or restricted.
® The preamble can be an aid in construing a provision when the provision is ambiguous. It can afford
useful assistance to ascertain legislative intention but cannot control otherwise the plain meaning
of a provision. The preamble of the constitution, for example, is to be read as a whole but the
preamble alone cannot be seen as a source of any prohibition or limitation.
® Preamble is not a source of law. The Act including the preamble must be read as a whole to decide
whether any part of the enacting provisions is clear or ambiguous.
® Retrospectively inserted preamble into an earlier Act is not much of an assistance for gathering
intention of original act.

Headings
® Headings are of two kinds: one prefixed to a section and other prefixed to a group or set of sections.
Headings of a section indicates factors to be considered in reading the provisions. The heading
prefixed to a section or set of sections in some modern statutes are regarded as the preamble to
those sections.
® They cannot control the plain words of the statute, but they may explain ambiguous words.
® Heading is to be regarded as giving the key to the interpretation and the heading may be treated as
a preamble to the provision following it.
® These headings serve as Preamble to the respective sections.
® The headings may be in Roman letters or in Italic letters. If the heading is in Roman letters, it is
regarded as a part of the Act.
® If the heading is in Italic letters, it indicates sub-division of the part. In all modern statutes,
generally, headings are attached to almost each section, just preceding the provisions.
® Headings are not passed by the Legislature, but they are subsequently inserted after the Bill has
become law.
® Headings constitute an important part of the Act itself. In comparison to the preamble of a statute,
they provide a better key to the construction of sections which follow them.
 Marginal Notes
® Notes which are inserted at the sides of the sections in an Act and express the effect of sections are
called marginal notes.
® They are not part of provision and cannot be considered as a legitimate aid to the construction of a
provision.
® In the interpretation of a statute, marginal notes may not be used because most of these notes are
inserted by draftsman and not by the legislators and not even under instructions of legislators.
® In some exceptional cases, marginal notes may be inserted by the legislators themselves. In such
cases, help may be taken of marginal notes because here they are considered as part of the Act.
(Marginal notes appended to Articles of the Constitution)
® Language of the marginal note prima facie furnishes clues as to the meaning and purpose of the
section. It cannot be used to control the operation of section, but in case of ambiguity or doubt it
can be referred to as an aid in interpreting the section.

Punctuation
® While interpreting the provision in the punctuated form if the court feels repugnancy or ambiguity,
the court shall read the whole provision without any punctuation and if the meaning is clear will so
interpret it without attaching any importance whatsoever to the punctuation.
® If a statute in question is found to be carefully punctuated, punctuation may be resorted for the
purpose of construction.
® Before 1850s, punctuations weren’t used in enactments. They generally cannot alter the plain
meaning of a statute, as it should be first read without punctuations. If the meaning is clear and
unambiguous without the punctuations, then the punctuations must be disregarded. If there is an
ambiguity, punctuations may be used to resolve that ambiguity.

Illustrations
® It would be the very last resort of construction to make this assumption. They being the show of
mind of the legislature are a good guide to find out the intention of the framers.
® An enactment otherwise clear cannot be given an extended or a restricted meaning on the basis of
illustrations appended therein.
® Illustrations help to explain the latent content of a given section. It neither stands independently nor
does it stand opposite to the section. They are appended to a particular section for the purpose of
explaining a provision of law in a statute.
® Sometimes, in order to explain a provision of law contained in a statute, illustrations are appended
to section of statute.
® The illustrations appended to a section form part of the section and although they do not form part
of the statute, they are of relevance and value in the construction of the text of the section and they
should not readily be rejected as repugnant to the section. They help to elucidate the principles of
law contained in a provision. But it is said that illustrations cannot modify the language of the
section and they cannot curtail or expand the ambit of the section which alone forms the
enactment. Illustrations cannot have the effect of controlling the real content of the section and must
give way in case of repugnance to the text of the section.
 Definitions
® A word or expression once defined in the statute has to be given same meaning unless context
otherwise requires. The principle is that all statutory definitions have to be read subject to the
qualifications variously expressed in the definition clauses which created them, and it may be that
even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing,
it is possible for the word to have a somewhat different meaning in different sections of the Act
depending upon subject or context.
® There may be sections in the act where the meaning may have to be departed from on account of
the subject or context in which the word had been used and that will be giving effect to the opening
sentence in the definition section, namely, ‘unless there is anything repugnant in the subject or
context.’
® In view of this qualification, the court has not only to look at the words but also to look at the
context, the collocation and subject of such words relating to such matter and interpret the meaning
intended to be conveyed by use of words ‘unless there is anything repugnant in the subject or
context.’
® While interpreting a definition, it has to be borne in mind that the interpretation placed on it should
not only benot repugnant to the context, it also be such as would aid the achievement of purpose
which is sought to be served by the Act. Same word defined in the statute may not carry the same
meaning throughout the statute.
® The words which are used in declaring the meaning of other words may also need interpretation
and the legislature may use a word in the same statute in several different senses. In determining
whether a particular import is included in such words, regard may be had to the answer which
everyone conversant with the word, subject- matter of the statute and to whom the legislation is
addressed would give.
® A definition is not to be read in isolation. It must be read in context of the phrase which would
define it. Where the context makes the definition given in the interpretation clause inapplicable, the
same meaning cannot be assigned.
® Blind interpretation of words in a statute.
® Definitions in other statutes should not normally be used in the construction of words in other
statutes.
® Exception is w.r.to General Clauses Act.
® However, if the words of one statute seem to be in pari materia with another statute, such words
may be used to understand the other statute.

Proviso
® The normal function of a proviso is to except and deal with a case which would otherwise fall within
the general language of the main enactment, and its effect is confined to that case.
® There may be cases in which the language of the statute may be so clear that a proviso may be
construed as a substantive clause. But whether a proviso is construed as restricting the main
provision or as a substantive clause, it cannot be divorced from the provision to which it stands as
a proviso. It must be construed harmoniously with the main enactment.” [CIT vs. Products Ltd.
(1964) 55 ITR 741 (SC)]
® In some sections of a statute, after the main provision is spelled out, a clause is added, with the
opening words “provided that…”. The part of the section commencing with the words “Provided
that…” is called Proviso.
® A proviso is a clause which is added t o the statute to accept something from enacting clause or to
limit its applicability.
® As such, the function of a proviso is to qualify something or to exclude, something from what is
provided in the enactment which, but for proviso, would be within the purview of enactment.

Explanation
® An Explanation is added to a section to elaborate upon and explain the meaning of the words
appearing in the section. An Explanation to a statutory provision has to be read with the main
provision to which it is added as an Explanation.
® An Explanation appended to a section or a sub section becomes an integral part of it and has no
independent existence apart from it.
® The purpose of an Explanation is not to limit the scope of the main section. An Explanation is quite
different in nature from a proviso; the latter excludes, excepts and restricts while the former
explains, clarifies or subtracts or includes something by introducing a legal fiction.
® Explanations are inserted with the purpose of explaining the meaning of a particular provision and
to remove doubts which might creep up if the explanation had not been inserted.
® It does not expand the meaning of the provision to which it is added but only tries to remove
confusion, if any, in the understanding of the true meaning of the enactment.

Schedule
® It forms the part of the statute and must be read together with it for all purposes of construction.
® The expressions in the Schedule cannot override the provisions of the express enactment. They
often contain details and prescribed forms for working out the policy underlying the sections of the
statute.
® Schedules may also contain transitory provisions, which remain in force till the main provision of
the statute are brought into operation.
® Some Statutes/enactments/Acts comprise of two parts. The first part called body contains various
sections/articles. While the letter part called schedules contains various model formats, tables etc.
® Schedules are parts of the Statute itself and may be looked into by the courts for the purpose of
interpreting the main body of the statute.
® Similarly, while interpreting the schedules help may always be taken from the main body of the Act
to find out the true spirit of the Act.

Legal Fiction
® The legislature sometimes creates legal fiction. This means that they assume the existence of a fact.
A legal fiction will only extend to the fact and not to the law. Legal fiction is Anything created by
law, which factually might not be true but is deemed to be so by law.
® The effect of a legal fiction is that a position which otherwise would not obtain is deemed to obtain
under the circumstances.
® In interpreting a provision creating legal fiction, the court must ascertain the purpose for which it
is created and having done so to assume all such facts and consequences which are incidental or
inevitable corollaries to giving effect to the fiction.
® However, the court must not lose sight of the fact that an unforeseen event may give rise to unusual
situation. Only the facts are deemed to exist under a legal fiction and not the legal consequences
which do not flow form the law as it stands. It also appears that if a legal fiction is created by the
legislature in an Act, it cannot be widened by the rules made under the Act.

Dargah Committee, Ajmer v. State of Rajasthan, AIR 1962 SC 574 (Ss. 93,222(4) Ajmer Merwara
Municipalities Reg, 1925) –
Facts: The Municipal Committee of Ajmer carried out certain repairs that the dargah committee had
failed to carry out under the Ajmer Mewara Municipality Regulations: any money recoverable by the
committee shall be recovered as if it were a tax levied by the committee on the property and shall be
charged thereof. Made pleas against magistrate who rejected it and asked them to pay the
amount. Dargah claimed the magistrate was incompetent- no jurisdiction and were an inferior court.
Issue: Whether such a tax imposed could be appealed as if it were a tax? Who has the competent
jurisdiction?
Held: Court says you must carry a legal fiction to its logical end. If the fiction is that of a tax, it may be
appealed as a tax. ‘as if’—deeming fiction. The court is explicitly recognizing that it is a legal fiction.
Para 5. Fiction here means that they are explicitly recognizing that this provision is creating a fiction
and it should be given full effect. Para 5-ending They are collecting it as tax so it should appear that it
should be of civil nature. Why? Refer to para 6. Here the law itself states that civil court is the competent
court. You don’t need to find out he nature of the proceeding—stick to the law. =
® Para 5 – If the assumption on which the argument proceeds that the Regulation provides no other
opportunity to the owner to challenge the notice or to question the amount claimed from him were
sound then there would be some force in the contention that Section 234 should be liberally
construed in favour of the appellant. But is that assumption right? The answer to this question would
depend upon the examination of three relevant provisions of the Regulation; they are Sections
222(4), 93 and 226. We have already seen that Section 222(4) provides that any money recoverable
by the Committee under Section 222(1) shall be recovered as if it were a tax levied by the
Committee on the property and shall be charged thereon. Section 93 provides for appeals against
taxation.
Section 93(1) lays down, inter alia, that an appeal against the assessment or levy of any tax under
this Regulation shall lie to the Deputy Commissioner or to such officer as may be empowered by
the State Government in this behalf. The remaining five sub-sections of Section 93 prescribe the
manner in which the appeal should be tried and disposed of. If the amount recoverable by
Respondent 2 from the appellant is made recoverable as if it were a tax levied by the Committee,
then against the levy of such a tax an appeal would be competent under Section 93(1).
Mr Chatterjee argues that Section 93(1) provides for an appeal against the levy of a tax, and he
draws a distinction between the amount made recoverable as if it were a tax and the amount
recoverable as a tax. His contention is that the amount which is recoverable under Section 222(1)
is no doubt by fiction deemed to be a tax but against an amount thus deemed to be a tax an appeal
would not be competent under Section 93(1). We are not impressed by this argument. If by the
fiction introduced by Section 222(4) the amount in question is to be deemed as if it were a tax it is
obvious that full effect must be given to this legal fiction; and in consequence, just as a result of the
 said section the recovery procedure prescribed by Section 234 becomes available to the Committee
so would the right of making an appeal prescribed by Section 93(1) be available to the appellant.
The consequence of the fiction inevitably is that the amount in question can be recovered as a tax
and the right to challenge the levy of the tax accrues to the appellant.
This position is made perfectly clear by Section 226. This section provides, inter alia, that where
any order of a kind referred to in Section 222 is subject to appeal, and an appeal has been instituted
against it, all proceedings to enforce such order shall be suspended pending the decision of the
appeal, and if such order is set aside on appeal, disobedience thereto shall not be deemed to be an
offence.
It is obvious that this section postulates that an order passed under Section 222 is appealable and it
provides that if an appeal is made against such an order further proceedings would be stayed. It is
common ground that there is no other provision in the Regulation providing for an appeal against
an order made under Section 222(1); and so inevitably we go back to Section 93 which provides
for an appeal against the levy of a tax. It would be idle to contend that though Section 226 assumes
that an appeal lies against an order made under Section 222(1) the legislature has forgotten to
provide for such an appeal. Therefore, in our opinion, there can be no doubt that reading Sections
222, 93 and 226 together the conclusion is inescapable that an appeal lies under Section 93(1)
against the demand made by the Committee on the owner of the property under Section 222(1). If
that be so, the main, if not the sole argument, urged in support of the liberal construction of Section
234 turns out to be fallacious.
® Para 6 – Now looking at Section 234 it is clear that the proceedings initiated before a Magistrate
are no more than recovery proceedings. All questions which may legitimately be raised against the
validity of the notice served under Section 153 or against the validity of the claim made by the
Committee under Section 222 can and ought to be raised in an appeal under Section 93(1), and if
no appeal is preferred or an appeal is preferred and is dismissed then all those points are concluded
and can no more be raised in proceeding under Section 234. That is why the nature of the enquiry
contemplated by Section 234 is very limited and it prime facie partakes of the character of a
ministerial enquiry rather than judicial enquiry. In any event it is difficult to hold that the Magistrate
who entertains the application is an inferior criminal court. The claim made before him is for the
recovery of a tax and the order prayed for is for the recovery of the tax by distress and sale of the
movable property of the defaulter. If at all, this would at best be a proceeding of a civil nature and
not criminal. That is why, we think, whatever may be the character of the proceedings, whether it
is purely ministerial or judicial or quasi-judicial, the Magistrate who entertains the application and
holds the enquiry does so because he is designated in that behalf and so he must be treated as a
persona designata and not as a Magistrate functioning and exercising his authority under the Code
of Criminal Procedure. He cannot therefore, be regarded as an inferior criminal court. That is the
view taken by the High Court and we see no reason to differ from it. In the present appeal, it is
unnecessary to consider what would be the character of the proceedings before a competent civil
court contemplated by the proviso. Prima facie such proceedings can be no more than execution
proceedings.
 Non-obstante clauses
® Non - obstante clause - Notwithstanding clauses - it means regardless of, or in spite of. It has an
overriding effect on the operation of legislature and enactments to such a clause referred in the
section.
® Usually starts with “notwithstanding”, Means that despite a particular provision/ act, the enacted
part will have full operation. “Notwithstanding anything contained in the IPC, this provision will
apply in XYZ manner”- the underlined part in this sentence will have full operation despite what is
written in the IPC. Helps us understand why the provision has been enacted, shows us the scope of
the provision, and determine what will not apply in particular cases.
® Non – obstante act is different from “subject to” and “without prejudice to” clauses. Non- obstante
clause used to clarify the operative part of the provision. Overriding effect on the referred section
in the clause. If the clause states “notwithstanding anything contained in any other law”, it
means that all other laws are overridden but something in the same statute is not overridden.
® “Notwithstanding anything contained in this Act” means other laws will still apply and are not
overridden by the application of this clause. “Notwithstanding anything contained in any
enactment” has an overriding effect on all the laws but not things that are not mentioned in any
enactment like principles of natural justice, customary law etc.

Dominion of India v. Shrinbai A Irani, AIR 1954 SC 596 (S.3 DoI Act, 1939)
Facts:
® A requisition order was made under this Defense of India Act 1939 and the Respondents property
was acquired for setting up grain shops- public utility service.
® This requisition was to end in September 1946 as the Defense of India of rules allowed for the
reacquisition of property during the war was to expire on 30th September 1946.
® Consequently, any reacquisition of property would also lapse. The property was not returned in
September 1946 and an ordinance was passed which allowed the govt. to continue the requisitioning
of properties. The Respondent realized that the property was being given by the govt. to private
individuals and asked for compensation for her property. The Trial court and High Court ruled in
Iranis favour.
® The High Court affirmed the conclusion of the trial court that there was no further extension of the
duration of the requisitioning order by the provisions of clause 3 of the Ordinance and declined to
go into the other questions which had been mooted before the trial court and which had been decided
by the trial court in favor of the first respondent.
Issue: Could the non-obstante clause in Clause 3 of the Ordinance, be interpreted to mean that only
those requisitioning orders which were expiring on account of expiration of the Defence of India Act,
1939 and its rules were to be continued and not those which were expiring due to an inherent weakness
within the orders themselves?
Holding:
® Due to the expiration of the Defence of India Act, 1939, all requisition orders made under its Section
75A would have ended on 31.09.1946, releasing all the immovable properties requisitioned
thereunder as well.
® The Ordinance was enacted to continue these requisitions and the court held that the following
reasoning accepted by lower courts was wrong: The non-obstante clause supplemented the
argument that Clause 3 of the Ordinance will continue the operation of only those Orders which
would have come to an end owing to the expiration of the Act and Rules.
® On the other hand, those Orders which were expiring due to their own inherent weakness (i.e.
Orders containing an expiry date themselves and not just due to the expiry of the Act), will not be
continued.
® The above argument treated the non-obstante clause like an exception to the operative part. Some
points regarding non-obstante clause observed in the judgement:
i. Normally, there should be a close connection between the non-obstante clause and the
operative part of the section, they need not always be coextensive with one another.
ii. If the words of the operative part of the enactment are clear and can be elucidated in only
one given manner, the non-obstante clause cannot cut its meaning to restrict its scope.
iii. In such a case, it has to be assumed that the non-obstante clause has to be understood as
clarifying the whole provision. Legislature must have put it in the provision with ample
caution and not just for limiting the scope of the enactment.
® The Court said that Clause 3 read with Clause 2(3) of the Ordinance (definition of a requisitioned
property) gave it a very clear meaning and chose not to surmise the intention of the legislature
behind enacting the Ordinance.
® The Apex Court held that the provision was to be interpreted literally and must be given its plain
and grammatical meaning. It must be interpreted in light of the preamble of the Ordinance. It was
held that it does not matter if the requisition Orders were ending due to the expiry of the Defence
of India Act (1939) and its rules or due to their own inherent weakness.
® Both such properties were to continue being under requisition owing to the Ordinance coming into
force.
® Justice Bhagwati further pronounced that Courts are helpless to go into the merits of individual
cases. Any person who is discontented with the continuance of the requisition can take their pleas
to the proper Government who may then release the property.
Conclusion:
® The courts interpreted the term “Notwithstanding” to give meaning to the operative part of the
provision, in line with the objective of the Ordinance- which was to continue the requisitioning of
the land.
® The Trial Court and Court of Appeal had erred in construing the provision. The clause was given
its legal meaning to hold that all the properties that were under requisition of the Government will
continue to stay under requisition by virtue of Clause 3 of the Ordinance.
® By virtue of the non-obstante clause, a distinction between Orders based on them expiring due to
the end of the Act or expiring due to their own flaw cannot be drawn. The non-obstante clause was
included just to give the Ordinance an overriding effect over the operation of the Defence of India
Act, 1939.
® Section 3 deals with two different parts.
o 1st part is narrower - it narrows down the scope of the provision - it limits only to act and
rules.
o 2nd part is wider - it says all lands requisitioned under any law shall continue to be subject
to such requisition.
o Two parts are not co-extensive, meaning the scope is not the same.
Ruling:
® Para 11- While recognizing the force of this argument it is however necessary to observe that
although ordinarily there should be a close approximation between the non - obstante clause and
the operative part of the section, the non obstante clause need not necessarily and always be co-
extensive with the operative part, so as to have the effect of cutting down the clear terms of an
enactment. If the words of the enactment are clear and are capable of only one interpretation on a
 plain and grammatical construction of the word thereof, a non - obstante clause cannot cut down
that construction and restrict the scope of its operation. In such cases, the non-obstante clause has
to be read as clarifying the whole position and must be understood to have been incorporated in the
enactment by the Legislature by way of abundant caution and not by way of limiting the ambit and
scope of the operative part of the enactment.
Whatever may have been the presumed or the expressed intention of the legislating authority when
enacting the Ordinance No. XIX of 1946, the words of clause 3 read along with the definition of
requisitioned land contained in clause 2(3) of the Ordinance are quite clear and it would not be
within the province of the Courts to speculate as to what was intended to be covered by clause 3 of
the Ordinance when the only interpretation which could be put upon the terms thereof is that all
requisitioned lands, that is, all Immovable properties which when the Defence of India Act, 1939,
expired were subject to any requisition effect under the Act and the rules were to continue to be
subject to requisition until the expiry of the Ordinance.
No doubt measures which affect the liberty of the subject and his rights to property have got to be
strictly construed. But in spite of such strict construction to be put upon the provisions of this
Ordinance, one cannot get away from the fact that the express provisions of clause 3 of the
Ordinance covered all cases of Immovable properties which on the 30th September, 1946, were
subject to any requisition effected under the Act and the rules, whether the requisition was effected
for, a limited duration or for an indefinite period. Even those requisition orders, which by accident
or design were to expire on the 30th September, 1946, would come to an end not only because the
fixed terms expired but also because the Act and the Rules expired on that date and were therefore
covered by clause 3 read along with the definition in clause 2(3) of the Ordinance and were by the
clear terms thereof continued until the expiry of the Ordinance. We are not here concerned with the
equities of individual cases.
There may be cases in which the Ordinance worked to the prejudice of the owner of the
requisitioned land. In such cases, the necessary relief could be granted by the appropriate
Government by releasing the Immovable property from requisition. But the Courts would be
helpless in the matter. Once the conclusion was reached that a particular measure was lawfully
enacted by a legislative authority covering the particular case in question the hands of the Court
would be tied and the legislative measure would have to be given its legitimate effect, unless mala
fides or abuse of power were alleged.
® Para 12 - We have therefore concluded that both the trial Court and the Court of appeal were in
error when they reached the conclusion that clause 3 of the Ordinance had not the effect of
continuing the requisition order in question.

P.E.K. Kalliani Amma v. K Devi, (1996) 4 SCC 76 (Ss. 16, 11 of HMA,1955)

Section 16 of HMA - if a child is born out of an illegitimate or void marriage, even then child will get
the rights of legitimate child and the for the purpose of the act it will be considered to be a legitimate
child. Section 11 - void marriages - marriages in accordance with Clause 1, 4, 5 (prohibited degree,
sapinda etc.) Here, the question was that Section 11 came into effect because of this act enacted in
1955, so by virtue of this provision, only those children born after 1955 will be considered to be
legitimate. Pre-1955, a child born out of void marriage, will be illegitimate.
Issue: Whether children born through a void marriage are legal heirs under the HMA 1956?
Held: Court interprets s.16 and holds:
® The non-obstante clause indicates that S 16(1) is delinked from section 11; 16(1) intends to confer
legitimacy on children born of void marriage despite section 11; benefit of legitimacy is conferred
upon the children born either before or after the date of amendment.
® Appellants are legal heirs and will inherit property of the father.
® The Supreme Court in P.E.K. Kalliani Amma v. K. Devi held that "Section 16 contains a legal
fiction. It is by a rule of fictio juris that the legislature has provided that children, though
illegitimate, shall, nevertheless, be treated as legitimate notwithstanding that the marriage was void
or voidable".
Conclusion: Court said it only applies to pre-1955. The language of the provision and the intention, it
is a beneficial provision and even pre-1955 should get the benefit. (Language + Benefit) We are a
welfare constitution, and benefit should accrue to the maximum.
Ruling:
® Para 58 – In spite of the foresightedness of the legislators, the intention of Parliament could not be
fully reflected in the Act which unfortunately suffered at the hands of persons who drafted the Bill
and the various provisions contained therein. The results were startling. Since the Rule of
Legitimacy was made dependent upon the marriage (void or voidable) being annulled by a decree
of annulment, the children born of such marriage, would continue to be illegitimate if the decree of
annulment was not passed which, incidentally, would always be the case, if the parties did not
approach the court. The other result was that the illegitimate children came to be divided in two
groups; those born of marriage held prior to the Act and those born of marriage after the Act. There
was no distinction between these two groups of illegitimate children, but they came to suffer hostile
legislative discrimination on account of the language employed therein. Indeed, language is an
imperfect instrument for the expression of human thought.
® Para 59 –The object of Section 16 was to protect legitimacy of children born of void or voidable
marriages. In leaving out one group of illegitimate children from being treated as legitimate, there
did not appear to be any nexus between the object sought to be achieved by Section 16 and the
classification made in respect of illegitimate children similarly situate or circumstanced. The
provisions of Section 16 were therefore, to that extent, clearly violative of Article 14 of the
Constitution.
® Para 75 – Section 16 was earlier linked with Sections 11 and 12. On account of the language
employed in unamended Section 16 and its linkage with Sections 11 and 12, the provisions had the
effect of dividing and classifying the illegitimate children into two groups without there being any
nexus between the statutory provisions and the object sought to be achieved thereby. It is to be seen
whether this mischief has been removed.
® Para 76 – Section 16(1) begins with a non - obstante clause.
® Para 77 – "Non-obstante clause is sometimes appended to a section in the beginning, with a view
to give the enacting part of the section, in case of conflict, an overriding effect over the provision
or Act mentioned in that clause. It is equivalent to saying that in spite of the provision or Act
mentioned in the non-obstante clause, the enactment following it will have its full operation or that
the provision indicated in the non - obstante clause will not be an impediment for the operation of
the enactment.(See: Union of India v. G.M. KokiR3: Chandavarkar Sita Ratna Rao v. Ashalata S.
Guram24 SCC at p. 477, R.S. Raghunath v. State of Karnataka2s; G.P Sigh's Principles of Statutory
Interpretation.)
® Para 78 – The words "notwithstanding that a marriage is null and void under Section 11" employed
in Section 16(1) indicate undoubtedly the following:
(a) Section 16(1) stands delinked from Section 11.
 (b) Provisions of Section 16(1) which intend to confer legitimacy on children born of void
marriages will operate with full vigour in spite of Section 11 which nullifies only those
marriages which are held after the enforcement of the Act and in the performance of which
Section 5 is contravened.
(c) Benefit of legitimacy has been conferred upon the children born either before or after the
date on which Section 16(1) was amended.
(d) Mischief or the vice which was the basis of unconstitutionality of unamended Section 16
has been effectively removed by amendment.
(e) Section 16(1) now stands on its own strength and operates independently of other sections
with the result that it is constitutionally valid as it does not discriminate between illegitimate
children similarly circumstance and classifies them as one group for conferment of legitimacy.
Section 16, in its present form, is, therefore, not ultra vires the Constitution.
® Para 79 – Section 16 contains a legal fiction. It is by a rule of fiction juris that the legislature has
provided that children, though illegitimate, shall, nevertheless, be treated as legitimate
notwithstanding that the marriage was void or voidable.
® Para 80 – When an Act of Parliament or a State legislature provides that something shall be deemed
to exist or some status shall be deemed to have been acquired, which would not have been so
acquired or in existence but for the enactment, the court is bound to ascertain the purpose for which
the fiction was created and the parties between whom the fiction was to operate, so that full effect
may be given to the intention of the legislature and the purpose may be carried to its logical
conclusion. (See: J.K. Cotton Spg. & Wvg. Mills Ltd. V. Laboratories (P) Ltd.22) Union of India26:
American Home Products corpn. v. Mac)
® Para 82 –In view of the legal fiction contained in Section 16, the illegitimate children, for all
practical purposes, including succession to the properties of their parents, have to be treated as
legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this
rule, which in its operation, is limited to the properties of the parents.

Conjunctive and Disjunctive Words

® Prima Facie it may seem that interpretation of the words “and” and “or” need not been considered
essential, are subsidiary and do not need much attention.
® However, several times, it is just through the interpretation of the words “and” and “or” that the
whole meaning of the Statute has been changed and the Judicature has evolved a new principle
altogether which was never expected.
® The aim of this article is to lay light on the importance and the need for correct interpretation of the
words “and” and “or”, as an aid to interpretation to ensure that effect is given to the true intent of
the Legislature.
® The word “or” is normally disjunctive and “and” is normally conjunctive but at times they are read
as vice versa to effectuate the manifest intent of the legislature as disclosed from the context.
® As stated by SCRUTTON L.J, ‘You do sometimes read “or” as “and” in a statute. But you do not
do it unless you are obliged because “or” does not generally mean “and” and “and” does not
generally mean “or”.
® However, the rule is that “or” is normally disjunctive and “and” is normally conjunctive and a
departure from the same is not available unless the very aim and purpose of the Statute so requires.
® The rationale is that if the Legislature wishes to use “and” in a particular statutory provision, then
it has every right to do and nothing prevents them for doing so. So if the word “and” has not been
 used and instead the word “or” has been used, it is obvious that the Legislature has purposively
used the word “or”.
® Unless it is not proved, that there was some reason or difficulty that prevented the Legislature from
using the “and”, literal interpretation has to be applied to the statutory provision and the rule - “or”
is normally disjunctive and “and” is normally conjunctive has to be given effect to. In my opinion,
this rule is an extension of the “Purposive Interpretation Rule.”
® Purposive theory is a theory of statutory interpretation that holds that Courts should interpret
legislation in light of the purpose behind the legislation. According to this theory, Courts are not
want to be bound by the text. It is a pragmatic approach or rather a functional aspect of interpreting
the law, wherein deviation from the literal rule is permitted for the larger interest of the society. A
Judge must be a jurist endowed with the legislator’s wisdom, historian’s search for truth, prophet’s
vision, capacity to respond to the needs of the present, resilience to cope with the demands of the
future and to decide objectively disengaging himself/herself from every personal influence or
predilections. Therefore, the judges should adopt a purposive interpretation of the dynamic concepts
of the Constitution and the Act with its interpretative armoury to articulate the felt necessities of
the time. I strongly feel that the rule which permits deviation from the usual and ordinary
interpretation of the words “and” and “or”, is an extension of the Purposive Theory wherein Courts
have conferred upon themselves the power to extend the meaning of the “and” and “or” and give
them a meaning and interpretation, which though not directly stated by the Legislature, yet aims at
achieving the real purpose of Legislature.
® Examples of Conjunctive and Disjunctive Statutes: One federal statute regarding assault on a
mail carrier begins: "(a) Assault. A person who assaults any person having lawful charge, control,
or custody of any mail matter or of any money or other property of the United States..." The use of
the word "or" in this statute means that you can be charged with the crime if you assault a person
in control of any one of the items listed: mail or money or property of the United States. If the term
"and" were used instead, you could only be charged for assault under this law if you had done each
and every one of the actions listed.

Federal Steam Navigation Co Ltd v. Dept. of Trade & Industry, (1974) 2 All ER 97 (HL)
Shipping—Oil pollution—Liability for—Oil discharge in prohibited sea area—Owner " or" master
guilty of offence—Whether both liable to conviction for same offence—Oil in Navigable Waters Act
1955 (3 4 4 Eliz. 2, c. 25), s. 1 (1) (as amended by Oil in Navigable Waters Act 1963
The owners appealed: —
Held: Dismissing the appeal (Lord Reid and Lord Morris of Borth-y-Gest dissenting), that the language
of section 1 (1) led irresistibly to the conclusion that it was the intention of Parliament that both the
owner and master should be liable for a breach of its provisions and that both could be prosecuted for
an offence thereunder, and that, accordingly, the word " or " was to be construed conjunctively since
any other construction produced unintelligible and absurd results.
(The words ‘owner or master’ as they occur in Section 1(2) of the Oil in Navigation Waters Act, 1955
were construed by the House of Lords to mean ‘owner and master’ making both of them guilty of the
offence under that Section as reading of “or” as “or” would have produced as an absurd result of leaving
it to the Executive to select either the owner or master for being prosecuted without the Act giving any
guidance. Such a result would have been against constitutional practice.)
 R v. Oakes, (1959) 2 All ER 92 –
Pg. 350 - Held, that although, where the literal meaning of a penal statute produced an intelligible
result, there was no ground for reading in words, or changing words, according to what might be the
supposed intention of Parliament; in the present case, because of the use of the word "and" after the
word "abets" in section 7, no intelligible meaning could be given to the section, but it being clear what
the intention was, and there having been merely a faultiness of expression, the court would read " or "
for "and " and dismiss the appeal.
Pg. 351 - If you try to read those words in that sense as a qualification of aiding and abetting, the result
becomes absurd, because the essence of aiding and abetting is the aiding and abetting of someone else
to commit an offence, and to say it is a qualification of that that a man should do an act preparatory to
the commission of an offence by himself is pure nonsense.
Pg. 356 – Accordingly, for all those reasons it seems to this court that, read literally, no intelligible
meaning can be given to this section, and accordingly, this court agrees with Slade J. The judge thought
that the natural way of getting over the difficulty was to read into the Act after the word " and " and
before the word " does " the opening words of the section, " Any person who," so that it would read, "
or aids or abets and any person who does " any act preparatory to the commission of an offence under
the "principal Act or this Act." The court, on the whole, prefers to read the word " or " for " and,"
because if the words " any " person who " are inserted it leaves the words " aids or abets " in the air,
whereas if " and " is changed to " or " it will read in this way: " or aids or abets or does any act
preparatory to, " and then I insert a comma " the commission of an offence." Indeed, read in that way it
happens very closely to correspond with the only two enactments near the time, namely, the regulations
of 1914 and of 1921. Mr. Howard has quite rightly pointed out that, although the court has on occasions
read "and" for "or" and "or" for " and," it has with one exception been in order to produce a result more
favourable to the subject.
Pg. 357 - That on principle there is no reason, if compelled to that end, why the words should not be
changed even though the result is less favourable to the subject, and, indeed, that was done in Attorney-
General v. Beauchamp. In that case Eowlatt J., having referred to the manifest absurdity which would
arise if a literal construction was given, said " It is not really a question of adding any- " thing to the
section, for it is quite clear what the intention was, '' and the omission of certain words that you would
expect to find " there is nothing more than a faultiness of expression." It seems to the court that it is
quite clear in the present case what the intention was, and that there has been merely a faultiness of
expression. Again, McCardie J., who agreed with Eowlatt J., said at the end of his judgment: " That
seems to be the reason- " ably plain meaning of the section which we have to consider, " while it is in
agreement with the earlier legislation on the " subject." Everything that was said by those two judges
seems to this court to apply fully in the circumstances of this case. Accordingly, the court will read " or
" for "and," and this appeal is dismissed.

Mandatory and Directory Provisions

® The general rule is that an absolute or mandatory enactment must be obeyed exactly, but it is
sufficient if a directory enactment be obeyed or fulfilled substantially.
® The use of word “shall” is ordinarily mandatory, but it is sometimes not so interpreted if the scope
of enactment, or the consequences to flow from such construction would not so demand. “Shall”
ought to be construed not according to the language with which it is clothed but in context in which
it issued and the purpose it seeks to serve.
® The meaning has to be ascribed to the word “shall” as mandatory or as directory, accordingly. When
a statute is passed for the purpose of enabling the doing of something and prescribes the formalities
which are to be attended for the purpose, those prescribed formalities which are essential to the
validity of such thing, would be mandatory.
® However, if by holding them to be mandatory, serious general inconvenience is caused to innocent
persons or to the general public, without very much furthering the object of the Act, the same would
be construed as directory.
® Where a statutory functionary is asked to perform a statutory duty within the time prescribed,
therefore, the same would be directory and not mandatory. However, where a statute requires a
public functionary to do a thing within specified time and also provides for consequences of
inaction, it must be held to be mandatory.
® Where “shall” is substituted by “may” by the amending Act, it indicates that the legislative intent
is to make provision mandatory. When the use of the word “shall” with respect to one matter in a
provision (or scheme of provisions) exists with the use of the word “may” with respect to another
matter in the same section of a statute, this situation will normally lead to the conclusion that the
word “shall” imposes an obligation, whereas the word “may” confers a discretionary power.
® The word ‘may’ and ‘shall’ have always been contentious issues in various enactments and legal
documents. This is because in some circumstances the word ‘may’ have been treated as mandatory
like ‘shall’. Whereas in some circumstances even the word ‘shall’ has not been used as mandatory
and has been treated like the use of the word ‘may’. While interpreting the question of whether a
provision of law that contains the word ‘may’ or ‘shall’ is mandatory or directory, the prime rule
that should be followed for such interpretation is ascertaining the true intention of the legislature
which is guided by the maxim, ‘Mens or Sententia Legis’ by considering the entire statute.
® According to Salmond, “As the essence of the law lies in the spirit, not in its letter, but letters are
the only way in which intentions are expressed.
® The words are an external manifestation of intention that it involves. When there is the possibility
of one or more interpretations of statute, courts have to adopt that interpretation which reflects the
‘true intention of the legislature’ which can also be considered legal meaning statutory provisions.”
® In “Raise on Statute Law” (7th Edn.) it was stated that “It is the duty of the Court to try to get at
the real intention of the Legislature by carefully analysing the whole scope of the statute or section
or a phrase under consideration.” In “Crawford on the Construction of Statutes” at page 516, it is
stated that “the question as to whether a statute is mandatory, or directory depends upon the intent
of the Legislature and not upon the language in which the intent is clothed.
® The meaning and intention of the Legislature must govern, and these are to be ascertained, not only
from the phraseology of the provision, but also by considering its nature, its design, and the
consequences which would follow from construing it the one way or the other….”.
® G.P. Singh in `Principles of Statutory Interpretation’, at page 409 stated that the use of the word
‘shall’ with respect to one matter and use of the word ‘may’ with respect to another matter in the
same section of a statute will normally lead to the conclusion that the word ‘shall’ imposes an
obligation, whereas the word ‘may’ confer a discretionary power. But that by itself is not decisive
and the Court ‘may’, having regard to the context and consequences, concludes that the part of the
statute using ‘shall’ is also a directory. It is primarily the context in which the words are used which
will be of significance and relevance for deciding this issue.
T.V. Usman v. Food Inspector, (1994) 1 SCC 754
Prevention of Food Adulteration Rules, 1955 - R. 7(3) (as amended in 1977) - Held, directory and not
mandatory - Mere delay in sending report of analysis to the Local (Health) Authority by itself would
not render the report void or inadmissible in law - It must be shown that the delay has led to the denial
of right conferred under Section 13(2) of Prevention of Food Adulteration Act, 1954 - Interpretation of
Statutes - Directory or Mandatory
Held:
® In Rule 7(3) no doubt the expression "shall" is used but it must be borne in mind that the rule deals
with stages prior to launching the prosecution and it is also clear that by the date of receipt of the
report of the Public Analyst, the case is not yet instituted in the court and it is only on the basis of
this report of the Public Analyst that the authority concerned has to take a decision whether to
institute a prosecution or not.
® There is no time limit prescribed within which the prosecution.
Ruling:
® Para 11 – In this context it must be noted that Rule 7(3) is only a procedural provision meant to
speed up the process of investigation on the basis of which the prosecution has to be launched. No
doubt, subsection (2) of Section 13 of the Act confers valuable right on the accused under which
provision the accused can make an application to the court within a period of 10 days from the
receipt of copy of the report of Public Analyst to get the samples of food analysed in the Central
Food Laboratory and in case the sample is found by the said Central Food Laboratory unfit for
analysis due to decomposition by passage of time or for any other reason attributable to the lapses
on the side of prosecution, that valuable right would stand denied. This would constitute prejudice
to the accused entitling him to acquittal but mere delay as such will not ver se be fatal to the
prosecution case even in cases where the sample continues to remain fit for analysis in spite of the
delay because the accused is in no way prejudiced on the merits of the case in respect of such delay.
Therefore, it must be shown that the delay has led to the denial of right conferred under Section
13(2) and that depends on the facts of each case and violation of the time-limit given in sub-rule (3)
of Rule 7 by itself cannot be a ground for the prosecution case being thrown out. Unless there is
proof of prejudice, there can be no cause for complaint by the accused.

Proviso:
® An accepted rule of interpretation is that a section and proviso thereto must be construed as a
whole, each portion throwing light, if need be, on the rest.
® A proviso must be read in context and not isolation. The real object of proviso should be
ascertained, and it should be read along with the section as a whole. It should not be rendered
superfluous or redundant. A proviso is generally used to remove a special case from general
enactment and provide for them specially.
® A proviso qualifies the generality of the main enactment by providing an exception and taking
out from the main provision, a portion, which, but for proviso would be part of main
provision. Where the enacting part is susceptible to several possible meanings, it may be
controlled by proviso.
® “Exception” is enacted to restrain the enacting clause to a particular class of cases while a
“proviso” is used to remove special cases from the general enactment provided from them
specifically.
 WEEK 11 - External Aids to Interpretation

Historical Facts and Surrounding Circumstances:

® The court is entitled to take into account such external or historical facts as may be necessary to
understand the subject-matter of the statute or have regard to the surrounding circumstances which
existed at the time of passing of the statute.
® Like any other external aid, the inferences from historical facts and surrounding circumstances must
give way to clear language employed in enactment itself.
® The subject matter with which the legislature was dealing, and the facts existing at that time with
respect to which legislature was legislating are legitimate topics to consider in ascertaining what
was the object and purpose of legislature in passing the Act.

Subsequent Social, Political and Economic Development and Scientific Inventions

® Generally, statutes are of ‘always speaking variety’ and court is free to apply current meaning of
the statute to present conditions.
® Therefore, the reference to the circumstances existing at the time of passing of the statute does not
mean the language used, at any rate, in a modern statute should be held to be inapplicable to social,
political and economic development or to scientific inventions not known at the time of passing the
statute.
® A statute may be interpreted to include circumstances or situations which were unknown or did not
exist at time of enactment of state.
® Developments in science and technology must be taken into consideration while interpreting an
ongoing statute
® It is often possible that after the enactment of a statute, political and economic developments in the
society may take place.
® New scientific inventions may also come out.
® The legislature might not have been aware of all these developments and inventions, when the law
was made.
® Therefore, courts take into account all these development while construing statutory prov

Dictionaries
® When a word is not defined in the act itself, it is permissible to refer to dictionaries to find out the
general sense in which that word is understood in common parlance. But in selecting one out of
various meanings of a word, regard must always be had to context as it is a fundamental rule that
‘the meaning of words and expressions used in an Act must take their colour from the context in
which they appear’.
® When context makes meaning of the word clear, other dictionary meanings becomes irrelevant. The
court would place such construction on the meaning of the words as would enable the legislative
intent being effectuated.
® What however is necessary for applying the principle of interpretation of statute is to take recourse
to literal interpretation and only when same would result in absurdity or anomaly, other principles
depending upon the statute may be applied.
® Therefore, dictionary meaning of a word is not considered when a plain reading of the provisions
brings out what was intended. When an expression in any Act has been defined, the said expression
will have the same meaning and it is not necessary to find out what is the general meaning of the
expression. The definition given in the statute is determinative factor. Too much reliance on the
dictionary meaning without regard to context is not proper.

Reference to Other Statues

® It is a settled principle that for the purpose of interpretation or construction of a statutory provision,
courts can refer to or can take help of other statutes. It is also known as statutory aids. The General
Clauses Act, 1897 is an example of statutory aid.
® Apart from this, Court can take recourse to other statutes which are in pari materia i.e. statute
dealing with the same subject matter or forming part of the same system.
® The application of this rule of construction has the merit of avoiding any contradiction between a
series of statutes dealing with the same subject, it allows the use of an earlier statute to throw light
on the meaning of a phrase used in a later statute in the same context.
® On the same logic when words in an earlier statute have received an authoritative exposition by a
superior court, use of same words in similar context in a later statute will give rise to a presumption
that the legislature intends that the same interpretation should be followed for construction of those
words in the later statute.
® However, a later statute is normally not used as an aid to construction of an earlier statute, but when
an earlier statue is truly ambiguous, a later statute may in certain circumstances serve as a
parliamentary exposition of the former.
® In case where two acts have to be read together, then each part of every act has to be construed as
if contained in one composite Act. However, if there is some clear discrepancy then the latter Act
would modify the earlier.
® Where a single provision of one Act has to be read or added in another, then it has to be read in the
sense in which it was originally construed in the first Act. In this way the whole of the first Act can
be mentioned or referred in the second Act even though only a provision of the first one was
adopted. In case where an old Act has been repealed, it loses its operative force. Nevertheless, such
a repealed part may still be taken into account for construing the unrepealed part.

Thiru Manickam & Co. v. State of Tamil Nadu, (1977) 1 SCC 199
 Foreign Decisions
® Indian courts have permitted in the interpretation of Indian statutes with sobered use of those foreign
decisions of the countries which follow the same system of jurisprudence as the Indian
jurisprudence and which are rendered on statutes in pari materia.
® There is one qualification attached to the assistance of foreign decisions that prime importance is
always to be given to the language of the relevant Indian statute, the circumstances and the setting
in which it is enacted and the Indian conditions where it is to be applied and that it is not to be
forgotten that there is always an element of risk in taking ready and hasty assistance from foreign
decisions.
® The Supreme Court is not bound by foreign court decisions, they have only a persuasive value. But
if they are in consonance with Indian law, the court can borrow principles laid down in foreign
decisions keeping in view the changing global scenario. For beneficent construction of a statute
precedent, foreign statutes may be referred to.

M V Elizabeth v. Harvan Investments

® In this case the issue was whether the High Court of Andhra Pradesh had the jurisdiction to rule
upon the case.
® The Supreme Court of India referred to the Admiralty Courts Act 1860 of the UK where the UK
legislation had expanded the jurisdiction of the High Courts of England and Wales to be coextensive
with that of the Admiralty courts. Although the Act did not apply to.
® Indian Courts, the High Court exercised its jurisdiction and the reasoning given was that the
jurisdiction of the Indian High court cannot be restricted because of the failure of legislature and
held that the power Indian High Courts was coextensive to the power of High Courts in UK.
® Hence we can see that a foreign enactment has been used as an external aid of interpretation as an
independent principle rather than a subordinate principle.
® Where it is important to ascertain ancient facts of public nature, recourse to historical works,
pictures, engravings and documents may be taken.
® Reference may also be made to contemporary treatises which may have influenced the lawmakers
in using a particular phrase in statute. The function of the court is to find out the intention of law-
makers.
® Therefore, the court has to discover the particular meaning of a given word in an enactment which
law-maker intended it to be given.
® In case of older statutes, knowledge of the historical facts relating to them becomes indispensable
for understanding the meaning of ambiguous words and expressions used in them.

Parliamentary History
® Historical setting cannot be used as an aid if the words are plain and clear.
® If the wordings are ambiguous, the historical setting may be considered in order to arrive at the
proper construction.
® Historical setting covers parliamentary history, historical facts, statement of objects and reasons,
report of expert committees.
® Parliamentary history means the process by which an act is enacted. This includes conception of an
idea, drafting of the bill, the debates made, the amendments proposed etc.
® Speech made in mover of the bill, amendments considered during the progress of the bill are
considered in parliamentary history where as the papers placed before the cabinet, which took the
decision for the introduction of the bill are not relevant since these papers are not placed before the
parliament.
® The historical facts of the statute that is the external circumstances in which it was enacted in should
also be taken into note so that it can be understood that the statute in question was intended to alter
the law or leave it where it stood.
® Statement of objective and reasons as to why the statute is being brought to enactment can also be
a very helpful fact in the research for historical facts, but the same if done after extensive
amendments in statute it may be unsafe to attach these with the statute in the end.
® It is better to use the report of a committee before presenting it in front of the legislature as they
guide us with a legislative intent and place their recommendations, which comes in handy while
enactment of the bill.

Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra, 2007(6) Bom CR 294
Parliamentary History – This case made references to the usage of various terms in amendments made
by the Parliament in order to construct the meaning of terms “promoting insurgency” & “Terrorism”
(Refer to last 2 paras of note)
® The petitioners have challenged the constitutional validity of that part of section 2(1)(e) of the
Maharashtra Control of Organised Crime Act, 1999 (for short, “the MCOCA”) which refers to
insurgency.
® The petitioners are seeking declaration that the Maharashtra legislature did not have the legislative
competence to legislate on ‘promoting insurgency’ contained in section 2(1)(e) of the MCOCA
since it comes under Entry No. 1 of List I of the Seventh Schedule and, hence, it is ultra vires Article
246(3). The petitioners want section 2(1)(e) to be struck down on that ground.
® Petitioners are accused of 2006 Bombing Attacks.
Petitioner’s Contention:
® The crime “promoting insurgency” does not fall under Entry No. 1 of List II (State List) or under
Entry No. 1 of List III (Concurrent List) of the Seventh Schedule of the Constitution or in any other
entry of the above said List II and List III of the Constitution.
® The Maharashtra State legislature did not have legislative competence to enact the latter part of
section 2(1)(e) which relates to promoting insurgency.
® Hence, according to him, part of section 2(1)(e) which refers to insurgency is ultra vires Article
246(3) of the Constitution.
Court Held:
® Upheld finding in Bharat Shah’s which categorically observed that section 2(1) (e) does not suffer
from any flaw and it is valid and constitutional. It is not open to the petitioners to raise that challenge
again. However.
® In the interest of justice, the court examined the challenge. Kept in mind ITC Ltd. v. State of
Karnataka - if the entrenchment is minimal and does not affect the dominant part of some other
entry, which is not within the competence of the State legislature, the Act may be upheld as
constitutionally valid.
® Para 33 – Entry no. 1 of List III makes it clear that the State Legislature is competent to make laws
in respect of criminal law including all matters included in the Penal Code, 1860 except in respect
of those matters which are specifically excluded by this entry. The State legislature can, therefore,
 enact a law defining offences and providing punishment for them. Such laws can extend to matters
included in the Penal Code, 1860.
® Para 39 – In order to determine which entry in the three lists the legislation is referable, the court
must find out in which entry, in pith and substance, it falls. MCOCA has created a special machinery
for trial of a series of offences created by it. In pith and substance, therefore, it falls in Entry No. 1
of List III which refers to criminal law. On incidental overlapping between a state legislation and a
central legislation - there may be incidental overlap because insurgency has relevance to defence of
India. However, this overlap does not affect the dominant part of Entry No. 1 of List I. It does not
invalidate section 2(1)(e). The proviso to Article 254(2) empowers Parliament to repeal or amend
repugnant State law even though it has become valid by virtue of Presidential assent. Such is not
the case here. It is urged that even though subsequent law made by Parliament does not expressly
repeal a State law, even then the State law will become void as soon as the subsequent law of
Parliament creating repugnancy is made. It is, therefore, necessary to examine whether Unlawful
Activities (Prevention) Amendment Act, 2004 incorporated in UAPA, 1967 is repugnant to the
MCOCA so far as it refers to insurgency.
® Para 40 – Since the stress is on the offence of ‘promoting insurgency’ found in section 2(1)(e) of
the MCOCA and ‘terrorist act’ or ‘terrorism’ as defined in the UAPA, 1967 as amended by the
Unlawful Activities (Prevention) Amendment Act, 2004, it is necessary to understand the meaning
of these terms.
Promoting insurgency is held to be a facet of terrorism.

Effect of Usage and Practice; Contemporanea Expositio

® The essence of the law is in the spirit and not in the letters. Look at what the law really is.
® The rule may simply be stated, in words of Singh (Principles of Statutory Interpretation (13 ed.)) -
Usage or practice developed under a statute is indicative of the meaning ascribed to its words by
contemporary opinion and in case of an ancient statute is an admissible external aid to its
construction.
® In Maxwell on the Interpretation of Statutes (12 ed.) the rule is stated thus: It is said that the best
exposition of a statute or any other document is that which it has received from contemporary
authority. … But further, the meaning publicly given by contemporary or long professional usage
is presumed to be the true one, even where the language has etymologically or popularly a different
meaning. But contemporanea expositio will not always be decisive of a question of construction.
Where the previous decisions are plainly wrong, and especially where the subsequent course of
judicial decisions has disclosed weakness in the reasoning on which they were based, and practice
injustice in the consequences that must flow from them, the will be overruled.
® The importance of Contemporanea Expositio may be understood by examining the observations of
Lord in a House of Lords opinion delivered: When you find legislation following a continuous
practice repeating the very words on which that practice was founded, it may perhaps fairly be
inferred that the Legislature in re-enacting the statute intended those words to be understood in their
received meaning. And perhaps it might be argued that the inference grows stronger with each
successive re-enactment.
® The rule is simple, yet of profound importance.
® If certain phrases are interpreted and therefore have come to be understood in a certain way, then
those phrases should be continued to be understood in they have come to be understood, unless the
statute has expressly provided for an alternate meaning of those phrases.
® This exposition of the rule, however, must be understood with the following caution given by
Singh: Even a longstanding practice sanctioned by judicial decisions as also recognized in text
books and in legislation may be overruled if there was no legal basis and in legislation may be
overruled if there was no legal basis for it and if in the changed circumstances its continuance led
to great hardship.
® While interpreting, take into account long standing practice as long as it does not go against
principles of natural justice.

N. Suresh Nathan v. UOI, 1992 Supp (1) SCC 584

Effect of Usage & Practice and Contemporanea Expositio - The doctrine that the legal opinions of the
time a document was written should be used to interpret laws in preference to more modern
formulations.
The respondents, Diploma-holder Junior Engineers in the Public Works Department, pondicherry,
approached the Central Administrative Tribunal, with the plea that the period of service rendered by
them before they obtained the Degree should be included for reckoning the period of three years' service
prescribed in the Recruitment Rules for promotion to the post of Assistant Engineer in the category of
those possessing Degree with three years' service and if the earlier period was so included, they would
be eligible for the promotion. However, Degree-holders opposed the respondents' plea contending that
the period of three years prescribed in the Rules was subsequent to the date of obtaining the Degree.
The Tribunal upheld the respondents' claim and directed that they should be considered for promotion
on par with the other Degree-holder Junior Engineers, taking due note of their total length of service
rendered in the grade of Junior Engineer. Hence the appeal, by the Special Leave, by the Degree holder
Allowing the appeal, this Court held:
® Para 5 – The rules must be construed to mean that the three years' service in the grade of a Degree-
holder for the purpose of Rule 11 of the Recruitment Rules, for promotion to the post of Assistant
Engineer in the Public Works Department Pondicherry, is three years from the date of obtaining the
Degree by a Diploma holder. This is in conformity with the past practice followed consistently.
The Tribunal was not justified in taking the contrary view and unsettling the settled practice in the
Department. Rule 7 of the Recruitment Rules lays down the qualifications for direct recruitment
from the two sources, namely, Degree holders and Diploma-holders with three years' professional
experience. Thus, a degree is equated to Diploma with three years' professional experience. Rule
11 provides for recruitment by promotion from the grade of Section Officers, now called Junior
Engineers. There are two categories provided therein, viz.,
(1) Degree holder Junior Engineers with three years' service in the grade and
(2) Diploma-holder Junior Engineers with six years' service in the grade, the provision being for
50% from each category.
This matches with Rule 7 wherein a Degree is equated with Diploma with three years' of
professional experience. In the first category meant for Degree-holders, it is also provided that if
Degree-holders with three years' service in the grade are not available in sufficient number, then
Diploma-holders with six years' service in the grade may be considered in the category of Degree-
holders also for the 50% vacancies meant for them.
The entire scheme, therefore, does indicate that the period of three years' service in the grade
required for Degree-holders according to Rule 11 as the qualification for promotion in that category
must mean three years' service in the grade as a Degree-holder and, therefore, that period of three
years can commence only from the date of obtaining the Degree and not earlier.
The service in the grade as a Diploma-holder prior to obtaining the Degree cannot be counted as
service in the grade with a Degree for the purpose of three years' service as a Degree-holder.
 Week 12: Interpretation of Penal and Remedial Statutes

Strict construction: Interpretation of Penal Statutes

M Narayanan Nambiar v. State of Kerala, AIR 1963 SC 1116

This is in relation to a clause in Prevention of Corruption Act. Clause – if a public servant by correct or
illegal means or by otherwise abusing his position as a public servant obtains for himself or for any
other person any valuable thing or pecuniary advance he could be punished for corruption. The public
official undervalues land of the government that was intended for allotment to the landless in
anticipation of it being allotted to his brother in law. Counsel for the appellant claims that this section
doesn’t cover loss to government as a part of things done by the public servant that amounts to
corruption. Land was anyway going to be allotted. Therefore the loss was to government but no profit
to appellant or brother in law. Long title of the Act is prevention of bribery and corruption. Would this
devaluation of land amount to corruption? Rule 3 applies and there is clear indication of policy. He
could be held for corruption as clause provides that he abused his position.

Fisher v. Bell, (1960) 3 All ER 731

Restriction of Offensive Weapons Act prohibited the manufacture, selling, hiring, offering for sale/hire,
lending it giving to any person weapons as described and includes flick knives. A shopkeeper displayed
in a window a flick knife with the price. Can he be held liable? It is an invitation to offer ad not offer to
sale. This invitation to offer is not prohibited by the statute. Therefore, not held liable.

S. Varadarajan v. State of Madras, AIR 1965 SC942

Facts: S. Varadarajan became friendly with Savitri, the youngest daughter of S. Natarajan, his neighbor.
They were seen together by Rama, the oldest daughter. Savitri admitted to wanting to marry Varadarajan
when questioned by Rama and informed her father, S. Natarajan. Savitri was taken to stay with relatives
to avoid Varadarajan. On October 1st, Savitri left without informing anyone and contacted Varadarajan.
They went to Mylapore to meet Sami and then proceeded to the registrar's office to get married. After
the marriage, Savitri went missing, and a complaint was filed by her family. They were eventually
caught in Tanjore, and Varadarajan was sentenced to one year of rigorous punishment for kidnapping
by the Madras HC.
Held: In this case, Savitri willingly left her relatives' house and called Varadarajan to meet her. It was
Savitri who proposed the marriage, indicating her own will and desire without any influence. The
Supreme Court observed that Savitri, although not of the age of majority, was a mature second-year
college student capable of making life decisions. The key ingredient in the charge of kidnapping from
lawful guardianship, as defined in Section 361 of the Indian Penal Code, is "taking" or "enticing."
However, the court found that there was no evidence of Varadarajan taking or enticing Savitri for any
of her actions. As a result, the Supreme Court acquitted Varadarajan, overturning the conviction and
sentence imposed by the Madras High Court.

Regina v. Shivpuri, 1987 AC I House of Lords

Facts:
Pyare Shivpuri (S) was persuaded to act as a drugs courier. S collected a suitcase which contained
several packages of white powder which he admitted in police interview that he believed to be either
heroin or cannabis but was in fact legal snuff. S was charged with attempting to be knowingly concerned
in dealing with and harbouring the controlled drug of heroin, under the Criminal Attempts Act 1981
section 1(1) (1981 Act) and the Customs and Excise Management Act 1979 section 170(1)(b) (1979
Act), despite the fact that the white powder was not in fact drugs. S was convicted and appealed.
Issue:
S claimed that he could not be found guilty in law of an impossible offence, because the substance was
not a drug.
Decision/Outcome:
For section 170(1) of the 1979 Act to apply, it is immaterial that S did not know the exact nature of the
substance in his possession, but nevertheless believed he was dealing with controlled drugs the
importation of which was prohibited. The statutory offence of attempt under Section 1 of the 1981 Act
requires (1) an act which was more than merely preparatory to the commission of an offence and (2)
the accused intended to commit an offence. It is no defence that on the true facts it would have been
impossible to commit the actual offence, which overruled the notion of ‘objective innocence’ in
Anderton v Ryan [1985] A.C. 560. The Court of Appeal and House of Lords dismissed the appeal and
upheld the conviction.

Rao Harnarain Singh v. State, AIR 1958 P&H 123

Facts: The main allegation is that Rao Harnarain Singh and the other accused forced Kalu Ram's wife,
Mst. Surti, into engaging in sexual acts with them, resulting in her death. It is claimed that the accused
committed the acts with the consent of Kalu Ram, but the prosecution argues that Kalu Ram and Mst.
Surti did not willingly participate in the acts.
Issue: Whether the alleged consent of Mst. Surti and Kalu Ram can be considered valid in the context
of the case.
Rule: Consent in cases of rape requires voluntary participation and a free and untrammelled right to
withhold or forbid the act. Submission under duress or fear does not constitute consent.
Analysis: Mst. Surti's submission under pressure from her husband cannot be considered consent,
especially considering her initial protests. The absence of visible marks of violence on the body does
not negate the possibility of rape or murder.
Held: The evidence presented so far supports the prosecution's allegations of rape and murder.
Relevant Paras: A mere act of helpless resignation in the face of inevitable compulsion, quiescence,
non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by
duress, cannot be deemed to be "consent" as understood in law. Consent, on the part of a woman as a
defence to an allegation of rape, requires voluntary participation, not only after the exercise of
intelligence, based on the knowledge, of the significance and moral quality of the act, but after having
freely exercised a choice between resistance and assent.
Submission of her body under the influence of fear or terror is no consent. There is a difference between
consent and submission. Every consent involves a submission but the converse does not follow and a
mere act of submission does not involve consent. Consent of the girl in order to relieve an act, of a
criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind
has weighed as in a balance, the good and evil on each side, with the existing capacity and power to
withdraw the assent according to one's will or pleasure.
A woman is said to consent, only when she freely agrees to submit herself, while in free and
unconstrained possession of her physical and moral power to act in a manner she wanted. Consent
implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to;
it always is a voluntary and conscious acceptance of what is proposed to be done by another and
concurred in by the former
GNCTD v. Mahmood Farooqui, 2016 Case ID 02406 R 0238772015 (District Court, Delhi)
Facts:
® The case involved a charge of rape under section 376 of the Indian Penal Code (IPC).
® The accused allegedly performed forceful oral sex on the prosecutrix without her consent.
® The accused initially denied the incident but later argued that even if it occurred, it was consensual.
Issue:
® The main issue was whether rape had occurred as defined under section 375(d)(2) of the IPC. The
interpretation and relevance of section 90 of the IPC were also analyzed.
® The court had to determine whether the decision abided by the principles of strict interpretation, the
literal rule of interpretation, and the mischief rule of interpretation.
Rule: Strict interpretation of penal statutes is generally followed for criminal offenses.
Analysis:
® The court's interpretation of the concept of consent and the application of section 375(d)(2) were
problematic.
® The court introduced stereotypes and differentiated between different types of women and their
"no" in determining consent.
® The court acknowledged that the plaintiff had communicated her lack of consent through a “feeble
no” to the accused multiple times. However, the court added an extra requirement for
"intellectually/academically qualified" women, stating that they needed to make their unwillingness
explicitly clear to the accused. The court's ruling placed an additional burden on the plaintiff to
ensure that the accused understood her lack of consent, which went against the legal provisions in
force for prosecuting rape.
® The court disregarded the strict interpretation of section 375 and misinterpreted section 90.

Aveek Sarkar v. State of West Bengal, (2014) 4 SCC 257

Facts:
® A German magazine published a photograph of Boris Becker, a renowned tennis player, posing
nude with his dark-skinned fiancée Barbara Feltus, an actress, covering her breasts with his hand.
The picture was taken by Feltus’ father.
® The article that contained the photograph portrayed Becker as an opponent of racial discrimination,
and signified a choice of love over hatred. A newspaper and magazine circulated in India
republished the article with the photograph.
® A complaint was filed against the newspaper and magazine under Section 292 of the Indian Penal
Code (IPC) that punished distribution of obscene materials, and under Section 4 of the Indecent
Representation of Women (Prohibition) Act, 1986, which prohibited publication of indecent
representations of women.
Held: The Court rejected the Hicklin’s test in favor of the community standards test. The Hicklin’s test
of obscenity examined whether the tendency of the material is to deprave and corrupt minds that are
open to immoral influences, and into whose hands the material may fall. This test allowed the material
to be judged on the basis of isolated parts of the work by their influence on the most susceptible readers.
The Court recognized that the concept of obscenity may change with time.
The Court noted that that regard must be given to contemporary mores and national standards, and not
the standard of sensitive persons. A bare reading of IPC Section 292 showed that a matter is obscene
“(i) if it is lascivious; (ii) it appeals to the prurient interest, and (iii) it tends to deprave and corrupt
persons who are likely to read, see or hear the matter.”
A picture of a nude/semi-nude woman “cannot per se be called obscene unless it has the tendency to
arouse feeling or revealing an overt sexual desire. The picture should be suggestive of [a] deprave[d]
mind and designed to excite sexual passion in persons who are likely to see it, which will depend on the
particular posture and the background in which the nude/semi-nude woman is depicted. Only those sex-
related materials which have a tendency of exciting lustful thoughts can be held to be obscene, but the
obscenity has to be judged from the point of view of an average person, by applying contemporary
community standards.”
The Court then had to examine the context in which the photograph appeared and the message it sought
to convey. Applying the community standards test, the Court held that the photograph was not obscene
within the meaning of Section 292 of the IPC. It did not excite sexual passion or tended to deprave or
corrupt the minds of people in whose hands the magazine or newspaper may have fallen. Further, the
photograph and the article in which it appeared conveys the message of racial equality and promoted
love and marriage between persons of different racial backgrounds. Accordingly, the Court found no
offense under Section 292 of the IPC or Section 4 of the Indecent Representation of Women
(Prohibition) Act, 1986.

Liberal construction: Interpretation of Remedial Statutes

MCD v. Female Workers (Muster Roll), (2000) 3 SCC 224

Issue – Whether the benefits under the Maternity Benefit Act could be extended to women in the muster
rolls of MCD.
This benefit applies to employees (minimum 240 days). These workers were on contract basis. However
these women argued that they have been working for 10 or more years as their contracts were being
renewed continuously.
Holding – Remedial statutes are to be liberally constructed and muster rolls did not change from year
to year and essentially employees must apply. Court also applied an external aid in the form of CEDAW.

Western India Plywood Ltd v. P. Ashokan, (1997) 7 SCC 638

Certain benefits were given to any worker injured in the course of employment. Once you’ve taken
compensation, you cannot seek compensation again under any other law in force. This worker had
already taken his compensation but sued for compensation under torts. The clause said ‘law in force’
not ‘enactment in force’. Torts is a law. Benefit may or may not be monetary in these cases.
 Week 13: Re-Imagining Precedents

Upendra Baxi, “The Travails of Stare Decisis in India”

TLDR: This essay by Baxi explores the "de-reception" of stare decisis (following precedents) in the
Indian judicial process. Baxi argues that Indian courts, particularly the Supreme Court, exhibit a unique
approach to legal reasoning, influenced by indigenous characteristics rather than traditional Anglo-
American legal culture. The essay highlights the extensive powers held by the Chief Justice of India
and the challenges faced by the Indian judicial system, including a growing backlog of cases. Baxi also
discusses various techniques used by the Indian judiciary that undermine the principles of stare decisis,
such as retroactive dissents, retroactive clarifications, reliance on counsel concessions, contradictory
concurrences, conversion of advisory opinions into binding law, and summaries. These techniques,
coupled with institutional and workload pressures, contribute to the erosion of the doctrine of stare
decisis in India.

Introduction
® Baxi discusses Julius Stone's contributions to contemporary jurisprudential thought,
particularly his analysis of the judicial process and legal reasoning. Stone's analysis primarily
focuses on the common law in the old British Commonwealth and American context, where
stable political cultures and institutions have supported the growth of adjudication.
® However, in post-colonial developing societies within the Commonwealth, there are different
environments marked by political instability and a combination of economic development and
increasing poverty. These societies have adopted non-indigenous patterns of adjudication that
have gradually acquired indigenous characteristics.
® Despite the retention of imposed legal systems and occasional juridical connections with their
former colonial powers, these developing societies are forging their own distinct legal cultures
and institutions.
® They reject certain aspects of their legal inheritance while maintaining superficial appearances.
® The example of the Indian judicial process illustrates this phenomenon, where the Supreme
Court and state High Courts operate within the framework of Anglo-American legal culture but
exhibit uniquely Indian approaches, habits, styles, and outcomes. The influence of English legal
origins on the Indian system has significantly diminished, including the doctrine of stare
decisis, which Stone's work emphasizes.
® Baxi argues that the rejection of a particular legal doctrine in English law can be seen as a
rejection of the cultural transplant of English legal traditions, suggesting that survival can be
achieved through means other than assimilation. This phenomenon challenges the existing
frameworks for analyzing the judicial process and calls for a re-examination of how
jurisprudence is approached. The prevailing theories and models of the judicial process, largely
influenced by older Commonwealth societies and the United States, may not be applicable or
justified in ex-colonial developing societies. Baxi emphasizes the need to question and explore
whether the same models of judicial craftsmanship can be applied to diverse decision-making
needs in these societies. The essay aims to raise these questions and provide some qualitative
data to support the hypothesis of a "de-reception" of stare decisis (the principle of adhering to
precedents) in India, while also considering the institutional and cultural factors that contribute
to this phenomenon.
The Jurisdictional Setting
The Supreme Court of India is the highest judicial authority in the country. It consists of the Chief
Justice of India and seventeen associate justices. They are appointed by the President, based on the
advice of the Council of Ministers. Typically, justices are chosen from the High Courts, but members
of the bar and distinguished jurists are also eligible. The appointment of the Chief Justice has changed
since 1973, allowing the President to choose any justice or even someone outside the judiciary.
The Court aims for regional representation and includes a Muslim justice and a member from the
"scheduled castes" community since 1981. Justices retire at the age of 63, with some serving relatively
short terms. Over 80% of justices have had an average tenure of less than four years. From 1950 to
1981, the Supreme Court had seventy justices and sixteen Chief Justices.

The Supreme Court has broad jurisdiction, including original, advisory, and appellate powers. It can
interpret the Constitution and address significant legal questions, both civil and criminal. It can also
enforce fundamental rights through constitutional remedies. Additionally, it has discretionary
jurisdiction under Article 136 to grant special leave to appeal any court or tribunal decision. The Court
operates through various bench sizes, with two-judge benches exercising discretion, three and five-
judge benches handling most cases, and seven-judge benches convening occasionally. The Full Court,
comprising all the justices, has only met twice in the past 32 years.

Baxi highlights the extensive powers held by the Chief Justice of India, which extend beyond the
formation of benches. The Chief Justice plays a crucial role in appointing judges to the Supreme Court
and the High Courts, as well as transferring High Court justices between states. The Indian judicial
system is overwhelmed with pending cases, with hundreds of thousands of matters awaiting resolution,
some dating back years. The Supreme Court also faces a growing backlog of over fifty thousand cases.
Baxi notes that the Court has been receptive to public interest litigation, allowing marginalized groups
to seek justice for violations of their rights. The Court has granted standing to citizens and groups to
bring forth issues affecting voiceless and exploited people. Additionally, the Court considers simple
letters alleging fundamental rights violations as equivalent to writs. While this expansion of the Court's
role is positive, it adds to the already increasing workload caused by routine litigation.

The De-Reception of stare Decisis

Baxi discusses Article 141 of the Indian Constitution, which states that the law declared by the Supreme
Court is binding on all courts in India. He notes that the Court not only interprets and declares the law
but also participates in administrative and constituent powers. The Court has the authority to review
legislation and even invalidate amendments to the Constitution. Baxi mentions that both Parliament and
the Supreme Court have become constituent assemblies in constant session. Article 141 also recognizes
the doctrine of stare decisis, which means that High Courts must consider the law declared by the
Supreme Court. However, questions arise regarding what exactly constitutes the law declared by the
Supreme Court and whether the Court's obiter dicta (remarks made in passing) are binding. Different
High Courts have their own standards for determining the binding ratio and which obiter dicta are
considered significant. This complexity benefits legal professionals and specific groups within the legal
community.

Baxi is highlighting the role of High Courts and Supreme Court in India and how they interpret and
follow binding Supreme Court decisions. The creativity and craftsmanship of the High Court justices
determine how these decisions are implemented. Similarly, the Supreme Court justices play a crucial
role in declaring laws that are constitutionally binding on all other courts in India. Baxi notes that the
Supreme Court has the power to overrule its own decisions, which can contribute to the preservation of
stare decisis (the principle of following precedents). This power, when exercised wisely, adds
legitimacy to the creative aspects of the judicial process. Baxi emphasizes that self-overruling, under
certain circumstances and procedures such as a larger bench, is an integral part of the stare decisis
system in India and in most jurisdictions. Furthermore, Baxi acknowledges that Supreme Court justices
sometimes express the importance of following precedents for the sake of stability and justice.

In summary, Baxi is expressing concerns about the Indian Supreme Court's lack of adherence to
precedent and their use of techniques to effectively overturn previous decisions. There are activist
justices who ignore prior rulings if they hinder their pursuit of justice, and even non-activist justices
tend to disregard precedents and fail to distinguish cases effectively. Sometimes, a justice may adopt
their own minority opinion as the Court's opinion, or they may use a dissenting opinion from another
justice without justification. There have been instances of misquoting and misunderstanding leading
cases, distorting the interpretation of fundamental rights. Additionally, there is evidence of inadvertent
oversight, where different benches of the Court overlook relevant prior decisions due to collective
judicial amnesia.

The Techniques of Subversion

Baxi claims that in addition to existing issues, the Court has developed techniques that undermine the
principles of stare decisis. These techniques include retroactive dissents, retroactive clarification and
amplification, reliance on counsel concessions, contradictory concurrences, conversion of advisory
opinions into binding law, and summaries. Baxi believes these habits within the Indian judiciary may
become more extensive and intricate in the future.

Retroactive Dissent
Chief Justice Hidayatullah, in the case of Shantilal, explicitly disagrees with his own earlier view in the
case of Vajravelu. In Vajravelu, a 1964 decision, it was held that property acquisition did not violate
the constitutional provision of immunity from expropriation without just compensation. However, Chief
Justice Hidayatullah now disassociates himself from that decision, admitting that the reasoning in a pre-
constitutional case got mixed up with Vajravelu, which was a case under the Constitution. He considers
the observations on the constitutional provision in Vajravelu as obiter, overlooking the fact that the
statute in that case was held valid based on the principles discussed. As a result, the unanimous decision
in Vajravelu is reduced to a 4:1 decision after five years. The bench in the Shantilal case, which held
the same status as the Vajravelu bench, simply rejects the holding of Vajravelu.

Retroactive Clarification and Amplification

Justice Khanna, along with three other justices, used the doctrine established in the Kesavananda case
to invalidate an amendment to the Constitution that protected the Prime Minister from any legal
challenges. Justice Khanna argued that the amendment violated the rule of law and democracy, which
are essential aspects of the Constitution's "basic structure." He also clarified his position in the
Kesavananda case regarding whether the fundamental rights in Part III of the Constitution are part of
the basic structure, stating that certain fundamental rights are indeed part of it. However, this
clarification introduced inconsistencies and resulted in a divided decision. Justice Bhagwati later
attempted to resolve the inconsistencies but was unsuccessful.

In another case during the emergency period, the Supreme Court unanimously held that citizens had no
right to seek relief from the court regarding the suspended fundamental right to life and personal liberty.
This decision contradicted the opinions of Justices Beg, Chandrachud, and Bhagwati, as well as Justice
Khanna's dissent. The unanimous order had a detrimental impact on the thousands of detainees during
the emergency. In 1978, after the emergency was lifted, Chief Justice Beg offered a clarification,
acknowledging that the court's order was loosely and inaccurately expressed and stating that he would
have clarified it earlier if given the opportunity.

Not Proceeding to Judgment in the Light of Concessions

Baxi criticizes the Supreme Court for often delivering lengthy opinions that logically require the
invalidation of a law or government action, but instead, the Court avoids this by relying on concessions
from state counsel. This approach weakens the court's reasoned explanation and moves away from the
strict notion of ratio decidendi. Baxi highlights the case of Maneka Gandhi, where the Court introduced
the concept of "substantive due process" into constitutional articles that were initially drafted without
it. Rather than striking down the law or action, the Court accepted the Solicitor-General's concession to
grant the petitioner a hearing after the decision was made. Baxi asserts that there are numerous instances
where the Court follows this approach.

Contradictory Concurrences
Baxi highlights the challenges of applying stare decisis due to justices' tendency to agree with each
other even when their opinions differ. In the Kesavananda case, Justice Beg agreed with Justices Ray,
Mathew, and Dwivedi. Justices Ray and Dwivedi argued that there was no fundamental right to
property, making compensation issues not subject to judicial review. Justice Mathew took a less extreme
stance, leaving room for judicial review based on compensation and fraud on the Constitution. When
counting votes or positions on fundamental constitutional issues, one faces the dilemma of either
ignoring Justice Beg's opinion or dividing it into fractions. A similar situation occurred years later in a
crucial case regarding the independence of the Indian judiciary, where Justice Fazl Ali concurred with
two justices who didn't completely agree with each other.

Advisory Jurisdiction
Baxi argues that the Supreme Court's advisory jurisdiction, exercised when the President seeks advice,
has created a situation where the opinions given are seen as binding on the High Courts. However, Baxi
questions whether this is valid, as the law declared by the Supreme Court, as stated in Article 141, may
not include opinions given in advisory cases. In a recent reference on the Special Courts Bill, the
Supreme Court not only examined the bill's validity but also suggested amendments that were accepted.
The bill, with these hypothetical amendments, was then declared constitutionally valid. Chief Justice
Chandrachud also expressed that this decision should be considered binding on the High Courts, as it
thoroughly examined the legal position. He emphasized the frustration that would arise if, for technical
reasons, the determinations in the opinion were not considered binding on the High Courts.

Summaries v. Precedent

® In Kesavananda, the constitutional validity of the 25th amendment to the Constitution was
challenged.
® The amendment added Article 31C in 1972, which aimed to subordinate certain aspects of
fundamental rights to economic policies outlined in Article 39(b) and (c) of the directive
principles of state policy.
® Article 31C has two parts: the first part states that laws implementing directive principles cannot
be deemed void for being inconsistent with rights conferred by Article 14, 19, and 31, while
the second part states that laws aimed at giving effect to such policies cannot be questioned in
court.
 ® In Kesavananda, a majority of the justices treated Article 31C as a single provision. Chief
Justice Sikri and Justices Shelat, Grover, Hedge, and Mukherjea declared it wholly invalid
because it allowed for the abrogation of fundamental rights, delegated amending power to state
legislatures, and the wide scope of Article 39(b) and (c) made it difficult to review its
connection to legislative declarations.
® On the other hand, a group of six judges, including Justices Ray, Palekar, Mathew, Beg,
Dwived, and Chandrachud, considered Article 31C as a whole and held it valid, rejecting the
arguments against it.

Baxi is discussing a court case where eleven judges ruled on the validity of Article 31C. Two judges
had different rulings for the first and second halves of the article. Justice Reddy upheld the first half
with some modifications, while denying validity to the second half. Justice Khanna upheld the validity
of the entire first half but struck down the second half. However, the Court's order does not provide
substantive details. A summary signed by nine of the thirteen judges states that the first part of Article
31C is valid, and the second part is invalid. This summary has been criticized for its legal status, as it
does not represent the unanimous view of the Court and cannot be considered the decisive opinion or
an unnecessary comment by a judge.

Baxi argues that the theory of precedent established by the Supreme Court is unsatisfactory and needs
to be rectified. While Seervai's attempt to trace the legal principle (ratio decidendi) regarding Article
31C is commendable, Baxi believes that his appeal for the Court to develop a precedent theory that
works in cases like Kesavananda is naive. Baxi asserts that it is not analytically possible to create such
a theory, and it is a mistake to expect judges to succeed where eminent jurists have failed in
systematizing the "holding" of a case.

Baxi emphasizes that we cannot overlook the two judges who severed Article 31C or the fact that four
judges did not sign the case summary. Therefore, the opinions of those judges and the dissenting voices
should not be completely disregarded. Baxi criticizes Justice Bhagwati for ignoring these factors in the
Minerva Mills case.

The Sources of Tension

® Baxi discusses the challenges faced by the Indian Supreme Court in maintaining the principle
of stare decisis. These challenges can be attributed to several factors.
o Firstly, the increasing workload and backlog of cases in the Supreme Court, which
continues to grow. The number of cases being filed has risen significantly over the
years.
o Additionally, the Court receives a substantial number of applications in its
extraordinary jurisdiction and admits a significant portion of them.

® The workload of the Court, coupled with the responsibility of serving a population of 700
million people, puts immense strain on the concept of stare decisis. Moreover, the frequent
turnover of justices in the Court further complicates the maintenance and transmission of the
culture of stare decisis.

® The Court typically sits in benches of two or three justices, with larger benches of five or seven
justices convened only for constitutional cases or matters involving substantial questions of
law. The infrequent constitution of larger benches and the fluctuating bench structure make it
 challenging to ensure fidelity to stare decisis. The authority of earlier cases may depend on the
composition of a particular bench, which is solely determined by the Chief Justice. The Chief
Justice's orientation and their assessment of the support from fellow justices may influence the
career of a particular line of precedents.

® Overall, Baxi highlights the difficulties faced by the Indian Supreme Court in maintaining
consistency and adherence to precedent due to the increasing workload, turnover of justices,
and the fluctuating bench structure.

® Baxi suggests that the Supreme Court's increasing workload in India can be attributed to various
factors related to its location and interpretation.
® The Court's involvement in fundamental rights jurisdiction, original jurisdiction, and
interpreting the power of the central parliament to amend the Constitution has made it a
platform for political opposition and a means to challenge the majority in power. This has
established the Court as an alternative center of political power in a predominantly one-party
democracy. Additionally, the growth of administrative law reflects both the Court's ingenuity
and the government's deviant decision-making approach.
® The rise of public interest litigation also indicates concerns about governmental lawlessness.
However, the lack of a comprehensive theory of litigation makes it difficult to explain the
factors driving the Court's expanding jurisdiction.

® The Court's perception of injustice and the absence of accountability from other centers of
power influence judicial minds to prioritize substantive justice over formal rationality and
precedent. As a result, respect for precedent may seem less significant.

® These factors may also contribute to the Court's increasing tendencies towards eclecticism and
judicial activism. Eclecticism is characterized by inconsistency in judicial approaches,
including the selective use or disregard of precedents depending on the specific case at hand.

® Baxi argues that on the Supreme Court, "juristic activism" and "judicial restraint" often come
together, further weakening the principle of stare decisis. Juristic activism involves introducing
and developing new ideas and concepts without actually applying them to the current case.

® These ideas are meant for future use if needed. This creates tension because the decision itself
is restrained, but the reasoning behind it is activist. Judges must carefully restrain the impulse
to use new material to justify their decisions while still finding an outlet for their ideas.
Justifying this activism creates additional conflict, especially when confronted with precedents
that contradict their arguments.

® The judge cannot simply distinguish or overrule these precedents since they are intentionally
introducing new material. However, ignoring the precedents may undermine the purpose of
introducing new ideas, as dissenting judges can expose the activism as flawed analysis and
undesirable policy. The judge engaging in activism may be concerned about the acceptance of
their ideas among different audiences and must refute claims of judicial adventurism, further
complicating the justification for activism.
 ® Baxi suggests that the perception of a lack of responsiveness by the people and the Court to
their expectations of a just administration has led to the rise of judicial activism and populism.
This undermines the culture of following precedents.

® Activist justices, who use judicial power to combat lawlessness and injustice, have also become
populist in their approach, emphasizing creativity and craftsmanship.

® Populism legitimizes activism, which is seen as necessary to uphold the Supreme Court's
authority against attempts to undermine it.

® However, this combination of activism and populism has taken the Court in controversial
directions, including increased involvement in prisons, distribution of public resources, and
temporary takeovers of social institutions. In this context, the significance of following
precedents (stare decisis) may be seen as minimal or even obstructive.

The Role of the Profession

® Baxi suggests that understanding why stare decisis is not fully embraced in India requires
considering the role of the legal profession.

® The Indian bar, particularly at the Supreme Court level, consists of generalist lawyers with
limited specialization in specific areas of law.

® This lack of specialization restricts the range of precedent information they can provide to the
judges, resulting in a fragmented understanding of the court's accumulated wisdom.

® Moreover, the legal profession is increasingly becoming illiterate in terms of understanding the
evolution of law and judicially developed doctrines.

® Lawyers often complain about lengthy and grandiloquent judicial opinions and admit to not
having enough time to read major decisions in detail.

® Baxi is expressing concern about the Indian legal profession's lack of awareness and
engagement with its own decisions.

® They highlight the absence of the practice of citing and criticizing adverse precedents in legal
briefs. The traditional English concept of lawyers as officers of the court, working to assist both
their clients and the court in achieving justice, is fading within the Indian legal profession.

® This situation makes it difficult for the bench (judges) to expect strict adherence to precedents
from the bar (lawyers), and the bench itself may struggle to achieve such adherence without
assistance. Some justices have taken a proactive approach by using their opinions to provide
concise information on the state of the relevant areas of decisional law—a form of instructive
jurisprudence. This trend of justices addressing multiple communication audiences has been
growing over time.

Certainty and Development

 ® Baxi suggests that the Supreme Court of India does not strongly value certainty or finality in
its decision-making process, particularly in the last two decades.

® This can be attributed to structural and political pressures on the Court, as well as the volatile
nature of law in India, with frequent constitutional amendments and confrontations between
different branches of government.

® The evolving society and changing political and judicial leadership also contribute to the
division among judges regarding continuity with the past versus the desire for change.

® This ambiguity regarding reliance on precedents affects the strategy for reaching or justifying
decisions.

® Additionally, Baxi mentions the influence of the cultural belief in a hierarchical society, where
the Western principle of majority decision-making may not hold.

® The lack of faith in the outcome of litigation and the referee's ability to resolve the matter is
evident among both the justices and the litigants and lawyers appearing before the Supreme
Court.

Conclusion
® Baxi argues that the Indian Supreme Court has blurred the line between adjudication
(interpreting the law) and legislation (making new laws), which used to be maintained through
stare decisis (precedent).

® Precedents are now seen as equivalent to the lawmaking process, with justices treating them as
a range of alternative legislative proposals.

® This has transformed the common law judicial process, undermining stare decisis and giving
the Court significant power but also vulnerability in maintaining legitimacy.

® The Court's assertion of legislative and constituent power has made it strong in promoting its
constitutional vision, yet vulnerable in preserving justice in a society undergoing significant
changes.