– By Dr.Y.Srinivasa Rao,
M.A (English Lit.)., B.Ed., LL.M., Ph.D in Law of Torts,
Principal Senior Civil Judge, Tirupati, Andhra Pradesh.
The constitutional function performed by courts of justice as interpreters of the written law laid down in Acts of Parliament is often described as ascertaining ‘the intention of Parliament’. – Fothergill vs. Monarch Airlines Ltd.
For determination of intention of the legislature of a particular of enactment, interpretation of statutes is essential because it is the objective of the interpretation of statues. To decide and regulate, the elucidation of the statutory language is to be determined. While interpreting statute, considering the legislative intention is pivotal and necessitous. Having conscious of legislative history is also significant. Nevertheless the tendency in common law, for interpretation, is according to the letter of law, in recent times, the civil law practice slopes towards interpreting an act commensurate with its spirit. What are the methods of interpretation of a statute? Social needs, comparative law and history, ideals which are prevalent at that point of time are potent factors for consideration of a judge.
Legislative history:- The basis for legislative history of a statute can be summed up as Statement of reasons for a Bill, Committee Reports, Review of existing law and need of changes, if any, and Parliamentary debates etc. A judge , while interpreting a provision of a statute, may take assistance of such material, as an aid, to give reasons for his decision. How to trace the will of a legislator, who is no more? Alternatively, to track the will of a legislator, there is a clue. According to Francois Geny, Social needs, comparative law and history, ideals which are prevalent at that point of time are to be considered for interpretation of a statute. The English Judge, in Fothergill vs. Monarch Airlines Ltd, it was held that ‘Although on a literal interpretation in an English legal context ‘loss’ was to be differentiated from ‘damage’, that was not an appropriate method of interpretation of an international convention, such as the Warsaw Convention, which was incorporated by statute into English law.’.
Legislative history is an aid to interpret the statute is succinctly explained in Fothergill vs. Monarch Airlines Ltd, as follows:-
”The constitutional function performed by courts of justice as interpreters of the written law laid down in Acts of Parliament is often described as ascertaining ‘the intention of Parliament’; but what this metaphor, though convenient, omits to take into account is that the court, when acting in its interpretative role, as well as when it is engaged in reviewing the legality of administrative action, is doing so as mediator between the state in the exercise of its legislative power and the private citizen for whom the law made by Parliament constitutes a rule binding on him and enforceable by the executive power of the state. Elementary justice or, to use the concept often cited by the European court, the need for legal certainty, demands that the rules by which the citizen is to be bound should be ascertainable by him (or, more realistically, by a competent lawyer advising him) by reference to identifiable sources that are publicly accessible. The source to which Parliament must have intended the citizen to refer is the language of the Act itself. These are the words which Parliament has itself approved as accurately expressing its intentions. If the meaning of those words is clear and unambiguous and does not lead to a result that is manifestly absurd or unreasonable, it would be a confidence trick by Parliament and destructive of all legal certainty if the private citizen could not rely on that meaning but was required to search through all that had happened before and in the course of the legislative process in order to see whether there was anything to be found from which it could be inferred that Parliament’s real intention had not been accurately expressed by the actual words that Parliament had adopted to communicate it to those affected by the legislation.”
To say in short, the legislative history can be used only to trace the intention of the legislator but to explain the meaning of statutory provision.
What are the restrictions for the usage of legislative history by the Judges?
It is quite difficult to screen off or shut away useful information if it is available within the parliamentary record. There are certain restrictions for usage of legislative history while interpreting provisions of a statute. In fact, English judges generally refuse to use of legislative history to interpret the provisions of an enactment as held by the Privy Council. It is thus ‘parliamentary material’ is inadmissible in English Courts and they refuse to consider ‘parliamentary material’. Curiously enough, in 1979, the Law Commission submitted a report and recognized that the record of parliament, which was considered for a statute, is relevant to know the intention of the statute. As to ‘reliability on such material’ is concerned, it emphasized that the purpose of debate is not to explain the meaning but to secure enactment; and the procedure of parliament does not produce any material that is suited for interpretation of a statute. ‘Hansard’ means the official report of all Parliamentary debates. The Law Commission was also the view that Judges should continue to prohibit for consideration of Hansard. One of the other reasons is that Hansard is widely available to advocates.
It is a settled position that it is legitimate to look at the useful material such a report of a committee leading to legislation in order to see the mischief which statute tried to curb and keep under control. The parliamentary material may be used to assist the judges in determining the intention of the parliament.
As was held in R Vs. Bishop of London, where the words of the Act are clear, it is not necessary to look at the history of legislation. If the words of the Act are of capable of two meanings, it may be material to look at the history of such an enactment.
In 1993, in the case of Pepper Vs. Hart, it was held that English Courts can consider the parliamentary material where 1. legislation is ambiguous and obscure or leads to an absurdity;2. to understand the statements of ministers or promoter of the Bill, if necessary;3. such statements that are relied on are clear.
Lord Reid opines that allowing reference would increase time and expense and that reference to parliamentary material would be of a little help in interpretation of statutes. However, in the decision of Pepper Vs. Hart, it was opined that non availability of parliamentary material was not shown as a problem in practice. In spite of everything, the new trend in English courts is such that there is open usage of parliamentary material for interpretation statutes but it should be limited.
In America, the principle is that the judge should interpret the law rather than reconstruct the intention of legislators. They consider that the debates in Congress are not appropriate or reliable to interpret the meaining of language of an Act. A system of judicial construction should not be converted into a system of committee-staff prescription, by using parliamentary material as opined by Scalia, J. His Lordship opines that placing reliance on legislative history is not merely a waste of research time and ink; it is a false and disruptive lesson in the law.
It is well accepted is that ‘legislative material can be cited to support almost any proposition, and frequently is.’ Even the French Government make efforts to disseminate parliamentary material, for the reason that such material is not accessible to majority of advocates. Prof. Peter Strauss opines that Acts ought to be interpreted on the basis of what they say, not what their legislative history might appear to reveal. Further, it is curious to note that Legislative history is a product of evolution and so it is not to be disregarded. Henri Capitant believes that parliamentary debates lead to the expression of the personal views, rather than a general sense of the spirit of the law.
In State Of West Bengal vs M/S. B. K. Mondal And Sons, the Hon’ble Supreme Court of India held as follows: ‘The question as to whether mandatory provisions contained in statutes should be considered merely as directory or obligatory has often been considered in judicial decisions. In dealing with the question no general or inflexible rule can be laid down. It is always a matter of trying to determine the real intention of the Legislature in using the imperative or mandatory words, and such intention can be gathered by a careful examination of the whole scope of the statute and the object intended to be achieved by the particular provision containing the mandatory clause.‘
Recently, in 2019, in Pioneer Urban Land And … vs Union Of India, relying on the dicta in Mardia Chemicals Ltd. Etc. Etc vs U.O.I. & Ors , held that parliamentary intent cannot be thwarted even if it operates a bit harshly on a small section of the public, if otherwise made in the larger public interest. In in Cellular Operators Association of India v. TRAI (2016) 7 SCC 703, the Apex Court of India held that when a provision is cast in definite and unambiguous language, it is not permissible either to mend or bend it, even if such recasting is in accord with good reason and conscience. It was further held that the expression “means and includes” would indicate that that the definition section is exhaustive.”what is an exhaustive definition is exhaustive for purposes of interpretation of a statute by the Courts, which cannot bind the legislature when it adds something to the statute by way of amendment”.
In M/S Delhi Airtech Services Pvt. … vs State Of U.P. & Anr, observed as infra: ”The meaning and intention of the legislation 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” “For ascertaining the real intention of the Legislature”, points out Subbarao, J, “the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other;the impact of the other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered”. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory, serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory. But all this does not mean that the language used is to be ignored, but only that the prima facie inference of the intention of the Legislature arising from the words used may be displaced by considering the nature of the enactment, its design and the consequences flowing from alternative construction. Thus, the use of the words `as nearly as may be’ in contrast to the words `at least’ will prima facie indicate a directory requirement, negative words a mandatory requirement `may’ a directory requirement and `shall’ a mandatory requirement.”
Legislative material is evidence can be used to reach legal conclusions. The reliability and veracity are significant factor to accept the evidence in legal proceedings. Because of disrupting language game, it leads to many difficulties to understand the meaning of the provisions of the statutes ‘what rightly represents what’ and smothering the chances of enlightenment and reliable answers about that which is not yet clearly signified in the enactment. Legislative history does not confer any guarantee clarification of the statutory provisions under interpretation. As was observed by the Apex Court in several decisions, parliamentary intent cannot be thwarted even if it operates a bit harshly on a small section of the public, if otherwise made in the larger public interest. Holmes says that ‘We do not inquiry what the legislature meant , we ask only what the statue means’.