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This article is written by Akshay Anurag of NUSRL Ranchi.

Abstract


Interpretation of statues is of prime importance to the daily work of the judges. But in the guise of this proposition, the conflict always germinates that whether the will of judges or the will of the legislature should be given prime importance. The courts can’t frame laws. Their function is only to ensure that the executive is acting in accordance with laws, and policy enacted by the government is not arbitrary. The fundamental rule of Interpretation states that the Judiciary must expound the law but not to legislate. In order to secure the independence of every pillar of democracy, the courts must be urged to impose appropriate self- restraint and to avoid intrusions into the domain of the other branches. But in 21st Century, the Parliament and State Legislatures cannot give the quality and quantity of laws which could be sufficient to serve the changing needs of the modern society despite being engaged throughout the year. When legislative bodies fail to make the necessary legislation that would best suit the present circumstances it may lead to an erosion of the confidence of the citizens in the constitutional values and also might result in injustice.

This paper will mainly be focussing on far-reaching consequences of imposing self-restraint by judicial authority which might lead to injustice more often. This paper also attempts to analyse the situations of Judicial Overreach.


Introduction

  • There is a presumption that the enacted laws, rules, regulations etc. are drafted by the legislature followed by huge debate and discussions so, there can’t be any void in the provision that might call for interpretation. However, recent trend witness contrary practice. The agency who shares the task of application of law have bitter experience. In every legislation there is the potential for words and phrases to create uncertainty or ambiguity which can only be resolved by judicial interpretation.[1]
  • Difficulties also arise due to incoherence between ‘meaning’ and the ‘intention’ of any enactment. The drafters are often criticized for the shortcomings in the statue or ambiguity in the statue. The legislation may have been drafted in detail but it is not possible for draftsman to foresee every contingency that might arise in future course of time. Such lacuna or ambiguity will render injustice.
  • The ideas of numerous drafters and other legal and technical terminology might result in incoherence, ambiguous and vague language. As the statues are drafted with the aim to solve and address problems and fulfill needs in a given society. Justice is the ideal that any legislation sought to achieve. But the ambiguities in the legislation might defeat this proposition. So in such circumstances, Judiciary is called for rescue.
  • The prime function of judiciary is to promote justice. The courts should apply its judicial mind and endeavour to interpret the phraseology broadly in order to serve the need of society.
  • When legislature fails to discharge its functions it might lead to collapse of the concept of responsible government which is the emblem of the constitutionalism, the judiciary acts as the engine of social welfare by fulfilling the legislative vacuum. It is true that judiciary do not make the law but however there is no law until it is interpreted by the judicial body.
  • Courts often treat ambiguity as a kind of gateway consideration when they interpret a statute. But no where permissible limits have been defined. In present scenario, the role of judiciary has marked a significant change from its traditional role of mere adjudication in order to serve the dynamic society. Courts have now become the final interpreter of our organic documents as well the protector of fundamental rights of our citizens.

But in this process, judiciary has itself defined its own freedom and excited the executive and the legislature to act in the passive command of Judiciary. Further there are some instances which evidenced the judiciary encroaching upon the sphere of other state organs. It should always bear in mind that the constitution is not a panacea for every bolt on the public welfare, nor should the court be as a judicial body a general heaven for reform movements. Therefore, at times it is advisable to put self- restraint upon the functions of judiciary. However, such restraint must not be as such that results in injustice or absurd results. This paper will mainly focus on the adverse impact of Judicial restraint in the changing society.

Juxtaposition Between Judicial Activism & Judicial Restraint

  • The courts are not only for dispute settlement. From the inception, it has been seen that the courts have been an ‘interstitial’ law maker. Courts responsibility has been much more increased now it is obligated to solve problem in the nebulous areas. It has now become the responsibility of courts to apply existing law in a form of more conducive to the independence of the judiciary.[2]
  • The concept of judicial Activism vests some discretionary power in the judges to depart from the strict adherence of the provisions. Judicial activism is the presumption of an active role played by the judiciary, which is endowed with the responsibility of adjudication and evolution of policies.[3]With the development of the idea of constitutionalism, judicial activism is proved to be sine qua noe of democracy.
  • Law being dynamic in nature welcomes new social policies which are not always consistent with the prevalent legislation. The judges are called for social engineering which might obstruct the way of legislature and executive.[4]
  • Judges should act in the view of social demand for active judicial role which he is required to fulfil.[5]Law as a creative response must be applied to meet the particular fact. While judging apart from relying upon text only judges should apply own perception of constitutional ideas.[6] It is advisable to fulfil the lacuna or gap the judges are allowed to interpret any enactment in the context of changing social needs and values in order to achieve social goal or public good.[7]
  • It is advisable to the judges that where a prevailing law is not capable of remedy the present social circumstance then judges should evolve with a new law.[8]As social norms and values change, law too have to be reinterpreted and recast regularly to make it consistent with the current social order. Whenever any societal condition, as well as factual situations, makes it a sine qua non for the judges to speak, they without professing the tradition of Judicial lock-jaw, must speak out.[9]
  • Law is a dynamic instrument fashioned by society for the purposes of achieving harmonious adjustment of human relations by elimination of social tensions and conflicts.[10] Judges are allowed to supply the decencies and fill the gaps if an existing structure found to be deficient in any way, however, a caution must be taken in order to stop building a new edifice in case of absence of it.[11]
  • Judges work is not only to interpret the constitution but also to articulate the constitutional norms to serve public reform in the area wherein pressing need is felt.[12] It is contended that the law must be responsive to serve the needs of changing social order. Judicial Activism emphasises that the judges are free to mould its ideal path in order to promote justice in a particular situation. Courts today cannot remain passive with the negative attitude, merely striking down a law or preventing something being done rather it has developed new attitude is to initiate positive affirmative actions.[13]
  • This type of creativity on the part of judicial authority has made it possible to realize the socio economic justice. Right to legal aid, Public Interest litigation, right to privacy etc. are the outcome of this phenomena only.At present Judicial activism has become the part of judicial process.[14]

criminal litigation

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In contrast, it is contended that the judges of High Court should maintain judicial restraint. This discipline is necessary for the orderly administration of justice. The duty of restraint and humility must be the constant theme of the judge in order to respect the intent of the legislature.[15] Judicial restraint is a pervasive feature of judicial decision making. It refers to apply the existing law in a conservative way, refraining from pursuing the more innovative route. Judicial restraint is a matter of self- restraint. It is for the judges to prescribe their limit in constitutional adjudication. So the question of restraint is not about the legal authority rather it is the appropriateness of judges by not exercising the powers.[16]To invoke judicial activism is to set at nought the legislative judgement is subversive of the constitutional harmony and comity of Instrumentalities.[17]Courts should only advise and point out the lacuna in the legislation and should exercise self- restraint. It is suggested that judge-made amendments to provisions above the available legislation should normally be avoided. An activist court is not fully equipped to cope with the details and intricacies of the legislative subject. It can only be allowed to advise and focus attention on the state polity on the problem and shake it from slumber, goading it to awaken, march and reach the goal. But at times the courts compulsorily need to apply brakes to its self-motion somewhere which is described judicially as self-restraint.[18]In case, a particular statue is well prevalent for several decades and the subjects of that particular are adjusted then the courts should exercise self-restraint.[19]So, it could be concluded that judicial activism and the Judicial restraint are the two side of the same coin and must go side by side in order to ensure harmonious functioning of all three organs of the state.

Rule of Interpretations & Dilemma of Self Restraint

Fundamental Rule of Interpretation

Fundamental rule of Interpretation emphasises that the ‘Judiciary must expound the law and not to legislate the law’. It is the legislature which is endowed with the responsibility of law making. In that particular, if the legislature fails to address any contingency then also courts have to abide by the provision itself. The primary duty of courts is to adjudicate the law not to legislate the law. Adjudication must be done by considering the literal aspect only. This is the elementary principle of interpretation. Judges cannot proclaim that they are playing the role of law maker for exhibiting judicial valour rather it must not be ignored that there lies a razor-thin line between adjudication and legislation.[20] The judiciary must not transgress such demarcation. This rule concludes that the statue is the master and not the servant. This rule appeal judges to impose self- restraint in the course of Interpretation. However, this theoretical concept is surrounded by the clouds of the limitations. The true sense of legislature can be derived from the words used in the enactment but words do not have scientific meaning it and it changes with time. So, restricting itself from interpreting and merely acting based on text might render gross injustice.

Literal Rule of Interpretation

This rule states that when the language of the statue is plan, certain and unambiguous, it must be given effect irrespective of its consequences. This rule states that the effect must be given to the statue even though it be absurd or results in starling consequences.[21]The words of a statute must prima facie be given their ordinary meaning. It is argued that the true legislative intent can be ascertained by the way of Literal construction. Plain meaning must be given effect even if it is unjust. The rule is explained in the case of Sussex Peerage[22], wherein it was held that:

“The only rule for construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the Statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in that natural and ordinary sense. The word themselves alone do, in such a case, best declare the intention of the law giver.”

It would be wrong to discard the plain meaning of words used merely to meet a probable injustice.[23]A probability of future injustice should not induce judges to do violence to well-settled rules of construction.[24]The mere fact that the results of the statue may prove to be unjust or cause hardships does not entitle a court to refuse to give it effect.[25] The literal rule of interpretations means there should be no creative interpretation. The statue must be applied without distorting or twisting its language. This is the foremost rules of Interpretation. Where the intention is reflected clearly and in an expressive way then words cannot be interpolated. If any manipulation is done with words, then the statue would more likely fail to carry out the legislative intent.

After enactment legislature becomes ex –officio. So the true meaning can only be fetched by analysing the intention of the legislature and it is contended the intention is well reflected from words itself. It is presumed that there is no defect or omission in the words used by the legislature. Legislature inserts every part for the purpose.

The courts are precluded from amending law or legislate in the guise of Interpretation.[26]Any creative interpretation would lead to destruction of judicial discipline. Hence self–restraint is to be promoted. The temptation to do judicial legislation should be eschewed by the courts.[27]This rule advocates the concept of self-restraint. But, it is required to be noticed that imposing self-restraint often renders injustice and inconvenience. This rule is based on the erroneous assumption that the words have a rigid and same meaning in all circumstances. This rule of interpretation is ill- suited for the modern social legislation. As in the case of London North & East Railway v. Berriman[28], the word ‘relaying or repairing’ was called for interpretation. As compensation was only paid in case of death while ‘relaying and repairing’ but in this plaintiff case plaintiff’s husband died while he was oiling. By applying the present rule of interpretation, court concluded that the ambit of relaying and repairing does not extended to include oiling, so plaintiff was denied. But if the purpose of the act is to examined, it could be concluded that the very objective of the act is to provide monetary compensation for the subsistence of its near one, since the bread earner of the family is no more. Applying self-restraint can sometimes defeat the very object of enactment.

Even if plain meaning give rise to unjust results which legislature never intended, still it has to be given effect. Curbing judicial creativity in some circumstances may be a hurdle in the road to serve the changing needs of developing society. Preventing courts from interpretative invasions would deviate from the objective of the statue. By combining the knowledge, wisdom and experience great judges develop the instinct of finding out that solution which harmonizes the words with the policy or object behind them that may be left away by the vice of self-restraint. Judges are the artists properly equipped to draw the canvass of justice. He shouldn’t be asked handbooks to guide himself. Judges must be left to rely in his instinctive sense then only proper demarcation can be made between the words and the purpose behind it. Exercising self –restraint will lead to continuing public evil which could have addressed by the creative interpretation. Imposing self-restraint will defeat the spirit of the enactment.

Golden Rule of Interpretation

In order to avoid blaming the legislative intent that tend to produce an unreasonable result, the judges are allowed to divert from taking the way of ordinary meaning of any enactment and liberated to adopt some other possible meaning which will avoid such result.[29]This rule gives due regards to the consequence arising from the usage of such enactment. This rule allows the courts to interpret any enactment in such a way that it will fetch results of social welfare. It may involve diverting from the plain meaning by indulging in creative interpretation. This rule comes into play when there is a manifest contradiction of the outcome with the purpose of the enactment or where literal rule fails to comply with the object of the act. In the cases where the obvious intention of the legislature is defeated and render unreasonable result then the courts are allowed to do violence to the words in order to produce some rational construction.[30] As in the case of Adler v. George[31], for the purpose of avoiding absurdity and extraordinary and vague results, where the Official Secret Act, 1920 used the phrase “ in the vicinity of”, the Court read the same as “in or in the vicinity of” so as to effectuate the remedy. If the language of a statute, in its literal interpretation, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, injustice, presumably not intended, interpretation may be put upon it which modifies the meaning of the words, and even the structure of the sentence.[32]

It provides the dynamism in the meaning so as to make it workable for time immemorial. The statutory interpretation of a provision can never be static but always dynamic. Many legal process thinkers like Hart and sacks rejected Intentionalism and offered Purposivism as the grand strategy for statutory interpretation.[33]The statue cannot be looked with a coloured glass, every provision has to be construed in the light of its consequences.

This adventure expands the court’s discretion as to interpretation.[34]Judges are allowed to attach that meaning which server “purpose” behind such a provision. By interpretative process, courts are supposed to realise the goal of the enactment.[35]

As analysed above, ‘literal rule’ prevents directs judges to impose self-restraint limiting the ambit of interpretation irrespective of the fact that it such prohibition over Interpretative invasions renders injustice or absurd results defeating the very object of the act.

Unlike ‘literal rule’ golden rule promotes the idea of Judicial activism. As in the case of Mohd. Ahmad Khan v. Shah Bano Begum[36], supplied wide meaning to the term ‘within the iddat period’ appearing in S.3(a) of Protection of Rights Divorce Act, 1986, as the maintenance not only limited to iddat period but also beyond that. As the purpose of the act to address the plight of the divorced Muslim women. Literally interpreting would have defeated the very object of the Act. The judges should play the role of reformer as it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable.[37]

To promote and advance the object and purpose of the enactment, to avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the judges should always indulge in creative interpretations.[38]

Summing Up

Justice is the ultimate aim of law. Promotion of justice primarily the outcome of the application of particular legal principle into a particular case. It could be concluded that the court should not be restricted only to literal interpretation rather the judges should apply their judicial creativity so that the purpose and object of the legislature should be well served. But, wider Interpretation is the essential aspect of dynamics of constitution. It checks and balances the unfettered power of legislature in the domain of law making. Judicial Interpretations are the tools for bringing social revolution through judiciary. It can’t be ignored that the judicial self- restraint blocked the regulation in terms of social order. Applying self-restraint will make the constitution a strict jacket and not perpetual vehicle. So, freedom of judicial interpretation should be expanded to promote the moral foundations of the society. When judges are called to apply their judicial mind, it is left to their discretion up to which extent it should be extended or restricted. However, judges are not left to innovate at pleasure, judges are not the knight-errant roaming at the will

[1]Brock v DPP, [1997] 161 JP 412.

[2] K. Veeraswamy v. Union of India, (1991) 3 SCC 655.

[3]SusantaChatterji, For Public Administration: Is Judicial Activism Really Legislative Anarchy And Executive Tyranny, The Administrator, Vol.42 (2), 1997, p.9.

[4]Brayan A.Garner(ed.), Black‘s Dictionary 850 (1999).

[5] C. RavichandranIyer v. Justice A.M Bhattacharjee, (1995) 5 SCC 457.

[6]KihotoHollohan v. Zachillhu, AIR 1993 SC 412.

[7] Rattan Chandra Hira Chandra v. AskarNawax Jung, (1991) 3 SCC 67.

[8] M.C. Mehta v. Union of India, (1987) 1 SCC 395.

[9]IndraSawhney v. Union of India, 1992 SCC (L&S) Supp 1.

[10] B.P AchalaAnand v. Appi Reddy, (2005) 3 SCC 313.

[11] K. Veeraswamy v. Union of India, (1991) 3 SCC 655.

[12]IndraSawhney v. Union of India, 1992 Supp (3) SCC 217.

[13] ITC Ltd. v.  State of Karnataka, 1985 Supp SCC 476.

[14]Bachan Singh v. State of Punjab, (1982) 3 SCC 24.

[15] State of U.P v. Anil Kumar Sharma, (2015) 6 SCC 716.

[16]John Daley, ‘Definingjudicial Restraint’ in Tom Campbell 8c Jeffrey Goldsworthy, Judicial Power, Democracy and Legal Positivism (Aldershot, UK: Ashgate, 2000).

[17] Union of India v. DeokiNandan Aggarwal, 1998 SCC (L&S) 248.

[18]MadhuKishwar v. State of Bihar, (1996) 5 SCC 125.

[19]ThammaVenkataSubbamma v. ThammaRattamma, (1987) 3 SCC 294.

[20] Institute of Chartered Accountants of India v. Price Waterhouse, (1997) 6 SCC 312.

[21]Babu Ram v. State of U.P., (1995) 2 SCC 689.

[22]1844 1Cl&Fin 85.

[23] CIT v. T.V. SundramIyengar (P) Ltd., (1976) 1 SCC 77.

[24] Delhi Airtech services Ltd. v. State of U.P., (2011) 9 SCC 354.

[25]Nasiruddin v. STAT, (1975) 2 SCC 671.

[26]Sarah Mathew v. Institute of Cardio vascular Diseases, (2014) 2 SCC 62.

[27]Raghunath Rai Bareja v. Punjab National Bank, (2007) 2 SCC 230.

[28][1946] AC 278.

[29]Luke v. IRC, 1966 AC pp. 557.

[30]Ibid.

[31] 1964 (2) QBD 7.

[32]AIR 1955 SC 830.

[33]ShaileshDhairyawan v. Mohan BalkrishnaLulla, (2016) 3 SCC 619.

[34]Kehar Singh v. State, (1988) 3 SCC 609.

[35]Supra note 32.

[36] (1985) 2 SCC 556.

[37]SamimAra v. State of UP, (2002) 7 SCC 518.

[38]M/s. Girdharilal& Sons v. Balbir Nath Mathur, AIR 1986 SC 1499

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