Final Draft ISPL Rishabh (1)

CHANAKYA NATIONAL LAW UNIVERSITY

Foreign Decisions

A Project on the subject Interpretation ofStatutes and Principles of Legislations

Submitted to: Prof. S. M. Ali

Faculty for ISPL

Submitted by: Rishabh Srivastav

4th year

Roll no:596ISPL|Foreign Decisions|2014

ACKNOWLEDGEMENT

This project would not have been completed without the guidance of our ISPL teacher- Prof. Ali. He guided me throughout the project and provided me with substantial material. I would like to acknowledge his hard work and thank him for his help. I am also grateful to our librarian for helping me with appropriate materials dealing with my topic-

Foreign Decisions. Special thanks to my friends and family for making the project an easy journey for me. I would like to thank each and everyone associated with this project.

Rishabh Srivastav Roll no: 596 4th year

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ISPL|Foreign Decisions|2014

Research Methodology

Aims and Objectives:

The aim of the project is to present an overview of Foreign Decisions through various Statutes, Guidelines and suggestions and different writings and articles. The aim has been to identify the different aspects of the study of decisions in Indian perspective through the years.

Scope:

Though the study of Foreign Decisions is an immense project and pages can be written over the topic but due to certain restrictions and limitations I was not able to deal with the topic in much detail.

Research Methodology:

The research methodology has been doctrinal.

Sources of Data:

The following secondary sources of data have been used in the project 1. Websites 2. Books 3. Online Journal

Method of Writing:

The method of writing followed in the course of this research paper is primarily analytical.

Mode of Citation:

The researcher has followed a uniform mode of citation throughout the course of this research paper.

Hypothesis:

While engaged in the pilot study, the researcher opined that-

The foreign decisions have been the backbone of many major Indian judgments.

The trend in modern era has been in the direction of enhancing the authoritative foundations of the international legal system and to moving State practices away from State absolutism.

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CONTENTS

Introduction

Role and Relevance of Foreign Decisions

General Principles of Interpretation

Foreign decisions influencing principles of Interpretation

Conclusion

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INTRODUCTION

For the purpose of construction of Indian statutes, courts also refer to decisions of foreign courts which are following same system of jurisprudence as ours. The assistance of such decisions is subject to the qualification 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 relevant conditions in India where it is to be applied.

These foreign decisions have persuasive value only and are not binding on Indian courts and where guidance is available from binding Indian decisions, reference to foreign decisions is of no use. While interpreting provisions relating to fundamental rights contained in the Indian Constitution, Supreme Court took much assistance from American precedents. In case where an International Convention is involved, it is obviously desirable that decisions in different jurisdictions across the world should so far as possible be kept in line with each other. Therefore, in such cases foreign decisions are more useful for guiding the courts.

In law, the enforcement of foreign judgments is the recognition and enforcement in one jurisdiction of judgments rendered in another ("foreign") jurisdiction. Foreign judgments may be recognized based on bilateral or multilateral treaties or understandings, or unilaterally without an express international agreement.

The multifaceted process called globalisation has increased the frequency with which courts are called upon to determine questions of foreign law. The fundamental principle of the common law tradition is that foreign laws are facts, not laws. Accordingly, foreign law is not capable of being known or discovered by a common law judge. It must be pleaded and proved as a fact, generally by expert evidence. However, questions of foreign law are

question[s] of fact of a peculiar kind.1By reason of the inadequacies of the common law position, courts have often not given the foreign law is fact principle its full effect. Over time, the principle has come to be characterised by exceptions, anomalies and special treatment.2

Parkasho v Singh [1968] P. 233 at 250.

The scope and range of the circumstances in which the foreign law is fact not law principle has been modified in practice is a central theme of R. Fentiman, Foreign Law in English Courts: Pleading, Proof and Choice of Law(Oxford: Clarendon Press, 1998).

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Role and Relevance of Foreign Decisions

For the purpose of construction of Indian statutes, courts also refer to decisions of foreign courts which are following same system of jurisprudence as ours. The assistance of such decisions is subject to the qualification 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 relevant conditions in India where it is to be applied. These foreign decisions have persuasive value only and are not binding on Indian courts and where guidance is available from binding Indian decisions, reference to foreign decisions is of no use (Forasol v ONGC3 ; General Electric Co. v. Renusagar Power Co4)

While interpreting provisions relating to fundamental rights contained in the Indian Constitution, Supreme Court took much assistance from American precedents. In case where an International Convention is involved, it is obviously desirable that decisions in different jurisdictions across the world should so far as possible be kept in line with each other. Therefore, in such cases foreign decisions are more useful for guiding the courts.

Apart from the intrinsic aids to construction, such as preamble and the purview of the Act, the Court can consider resources outside the Act, called the extrinsic aids, in interpreting and finding out the purpose of the Act. Where the words of an Act are clear and unambiguous, no recourse to extrinsic matter, even if it consists of the sources of the codification, is the intrinsic aids, such as preamble and purview of the Act. Sources outside the Act called extrinsic aids. These resources deal mainly with the history of the Act, both with the prior events leading up to the introduction of the Bill, Select Committee reports.

In Mohd Hanif Quareshi v. State of Bihar5 , the Supreme Court took in to the consideration the Report of the Uttar Pradesh Gosamvardhan Committee and the fact that three of the members of the committee were Muslims and had concurred in the unanimous recommendation for a total ban on slaughter of cows.

1984 AIR 241,

1994 AIR 860

AIR 1958 SC 731

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Following external aids are used:-

Parliamentary material

Reference to other statutes

Usages and Practice

Dictionaries

Foreign Decisions

Historical facts and surrounding circumstances

Later Development and Scientific Inventions

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General Principles of Interpretation

As long as there has been law, there has been statutory interpretation. The law of interpretation is more practically relevant now than ever before. In addition to its practical importance, statutory interpretation is a field with a much more distinguished intellectual history than that of common law or constitutional interpretation. The traditional principles of interpretation of statutes emphasized close textual analysis and advocated an imminent meaning for texts. But literal interpretation has its limits and therefore, a further rule is also accepted that statutes must often be interpreted to carry out their overall purpose.

While discussing legislation as a source of law, it has been pointed out that it is the most important source of law in modern times. The law that comes into being through legislations is called statute law. It is laid down in the form of authoritative formulae on the paper. Is is for the courts to apply these formulae to the specific cases. The court has to ascertain the meaning of the letters and expressions of the enactment for its application. The process of ascertaining the meaning of the letters and expressions by the court is called interpretation. Interpretation of a statute is not a mechanical process, but is dynamic and creative one. Interpretation is said to be a science by itself. In the process of interpretation the judges exert a considerable influence on the statute law. The judges and the legislature may be put in a poetic expression, both from heaven derive their light.

THE doctrine of parliamentary sovereignty, understood as a principle of unqualified legislative power, depends on familiar, but questionable, assumptions about legal authority and statutory interpretation. It supposes that a legislative command, by dint of the plain language it deploys, can determine the outcome of particular cases, however cogent may be the reasons for a different decision in all the circumstances. Though established principles of interpretation may enable judges to resist absurd or unjust consequences, when the text admits of ambiguity or doubt, a plain and unambiguous injunction must be accepted at face value. Even a strained interpretation, intended to safeguard the rights protected by the European Convention, must at least be possible; and what is possible (it is widely assumed) is largely a matter of semantics, rather than moral or

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political judgment.6 If the various presumptions of legislative intent invoked by common law courts help to preserve the rule of law, they nonetheless give way, like the rule of law itself, to explicit contrary command.7

People communicate in many ways, e.g. by means of signals (signs), gestures, sounds (for instance, hooting of a motorcar), and of course language. Language is the most important medium of communication used by human beings. Although we can express ourselves quite clearly through the spoken or the written word, language actually is a rather imprecise and imperfect medium in which to communicate. Lawyers especially will testify to this fact, as they tend to be as precise as possible when using words and concepts.

Language is the main medium of communication in law. The legislature uses especially the written word to communicate with the population. But, because the population as a whole is not as obedient, understanding or honest as the legislature would have liked, - there are always people who are prepared to operate just outside or beyond the limits of the law) the legislature must express itself in a very precise manner.

Justice Stephen in In re Castioni8 had this to say about Acts and people:

that degree of precision which is essential to every one who has ever had, as I have had on many occasions, to draft Acts of Parliament, which although they may be easy to understand, people continually try to misunderstand, and in which therefore it is not enough to attain a degree of precision which a person, reading in good faith can understand: but it is necessary to attain if possible a degree of precision which a person reading in bad faith cannot misunderstand.

Human Rights Act 1998, s. 3. For critical analysis, see Geoffrey Marshall, The Lynchpin of Parliamentary Intention: Lost, Stolen, or Strained? [2003] P.L. 236. Aileen Kavanagh has rightly challenged the prevailing consensus: see Kavanagh, The Elusive Divide between Interpretation and Legislation under the Human Rights Act 1998 (2004) 24 O.J.L.S. 259, and Statutory Interpretation and Human Rights after Anderson: a More Contextual Approach [2004] P.L. 537.

The connection between legislative intention and legislative supremacy is emphasised by Jeffrey Goldsworthy in his attempt to defend the constitutional doctrine against damaging scepticism about the existence (or ascertainability) of such intention: see Goldsworthy, Legislative Intentions, Legislative Supremacy, and Legal Positivism, in J. Goldsworthy and T. Campbell (eds.), Legal Interpretation in Democratic States(Aldershot 2002).

(1891) Q.B. 169

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I. Role of the Court.

The proper interpretation of a statute is a judicial function. In re Complaint of Rovas Against SBC Michigan, 482 Mich 90, 99 (2008)

When interpreting a statute, the court attempts to ascertain and give effect to the intent of the Legislature. People v Gardner9

Court may not speculate about the probable intent of the legislature beyond the language expressed in the statute. Griswold Properties LLC v Lexington Ins. Co.10,

In determining legislative intent, the courts look first into the specific language of the statute. People v Underwood,11

II. Clear vs. Ambiguous Language

Statutory language is ambiguous when it is equally susceptible to more than one meaning, not when reasonable minds can disagree regarding its meaning. Toll Northville LTD v Twp. of Northville12

Clear and unambiguous language in given its plain and ordinary meaning. In re LE, 278 Mich App 1, 22 (2008)

An undefined term is given its plain and ordinary meaning.

A "legal term of art" is given its peculiar legal meaning.

Terms that have a unique legal meaning are given the definition found in a lay dictionary, such as Random House Webster's College Dictionary. Brackett v Focus Hope, Inc.,13 (a)

4. Clear and unambiguous language should be enforced as written. In re McLeod USA Telecommunications Services, Inc.14

482 Mich 41, 84 (2008)

276 Mich App 551, 556 (2007)

278 Mich App 334, 338 (2008)

480 Mich 6, 15 (2008)

482 Mich 269, 275 (2008); MCL 8.3

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If the language is clear and unambiguous, the courts must apply it as written even if it leads to absurd results. Kimmelman v Heather Downs Management Ltd.15

"Absurd" means utterly and obviously senseless, illogical or untrue; contrary to all reason and common sense. It does not mean that reasonable people would think that the Legislature acted improvidently. McGhee v Helsel,16. The court may depart from a literal interpretation of unambiguous statutory language that produces an absurd and unjust result that is inconsistent with the purpose and policies of the statute. People v Bewersdorf17

III General Principles of Interpretation

Every word of a statute should be read to give it meaning, and so the court must avoid interpretations that render words unnecessary or meaningless. In re MCI Communications18

Unclear statutory language will be construed so as to avoid absurd results, injustice and prejudice to the public interest. Hill v City of Warren19

Statutes are to be read as a whole to ascertain the intent of the Legislature, and any provisions that are apparently inconsistent are interpreted to produce a harmonious whole, if reasonably possible. Macomb County Prosecutor v Murphy,20

Statutes that relate to the same subject ("in pari materia") are to be read and construed together. In re MCI Telecommunications Complaint21

In interpreting a statute, the court presumes that the legislature is aware of:

(a) judicial interpretations of existing law -Ford Motor Co. v City of Woodhaven22

277 Mich App 602, 609 (2008)

278 Mich App 569 (2008)

262 Mich App 221, 226 (2004)7

, 438 Mich 55,68 (1991)

460 Mich 396,415 (1999)

276 Mich App 299, 305 (2007)

464 Mich 149, 160 (2001)

460 Mich 396, 417 (1999)

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the existence of the common law, so that (i) statutes are interpreted consistent with their terms even if those terms conflict with the common law and (ii) common law rules are not

abolished by implication.23 Houghton Lake Area Tourism and Conservation Bureau v Wood,24

the laws on the same subject and the effect of new enactments on existing laws. Wayne County v Wayne County Retirement Comm'n.,267 Mich App 230, 244 (2005)

the rules of statutory interpretation. People v Clark, 274 Mich App 248, 252 (2007)

Lawyers therefore tend to be too precise and specific in their expressions, and this leads to many problems in the field of understanding and in interpretation. A beautiful example is that used by Dickerson25 where he quotes from the Wisconsin Bar Bulletin:

When an ordinary man wants to give an orange to another, he would merely say, I give you this orange. But when a lawyer does it, he says it this way: Know all men by these presents that I hereby give, grant, bargain, sell, release, convey, transfer, and quitclaim all my right, title, interest, benefit and use whatever in, of, and concerning this chattel, otherwise known as an orange, or citrus orantium, together with all the appurtenances thereto of skin, pulp, pip, rind, seeds, and juice, to have and to hold the said orange together with its skin, pulp, pip, rind, seeds, and juice for his own use and behalf, to himself and his heirs in fee simple forever, free from all liens, encumbrances, easements, limitations, restraints or conditions whatsoever, any and all prior deeds, transfers or other documents whatsoever, now or anywhere made to the contrary notwithstanding, with full power to bite, cut, suck, or otherwise eat the said orange or to give away the same, with or without its skin, pulp, pip, rind, seeds, or juice.

Dickerson identifies some of the following diseases of legislative language:

475 Mich 425, 439 (2006)

Spires v Bergman, 276 Mich App 432, 438 (2007)

255 Mich App 127, 149 (2003)

Legal Drafting (p. 179)

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Ambiguity (one word refers to more than one object, for instance grandmother can refer to the mothers mother or the fathers mother)

Vagueness (the meaning is not precise, for instance the word red there exist numerous shades of red).

These are common features in legal language so we do not have to spend more time on them. However lawyers, and particularly judges, are aware of these problems of interpretation. The rules of interpretation which we will examine in this unit are an attempt to provide some sort of reliable and consistent approach to the interpretation of statutes. Of course there is disagreement about the correct approach to be taken and about which rule should be applied in particular situations. But generally what the judges have attempted to do is to produce approaches to interpretation which permit lawyers and citizens to predict the ways in which a statute will be interpreted by them. Otherwise the matter of interpretation would appear to be quite arbitrary. This presupposes also that lawyers will act in a certain way. It sets a certain role for them.

The lawyer's function is one of advising clients about their position under the law. The advice in any given case will be more sound if the lawyer can anticipate the way in which the written law will be interpreted and applied by the courts.

The approach of particular courts to questions of interpretation will vary from time to time and place to place. There have been periods when a particular court, depending on its composition can be seen to be taking a radical approach to the interpretation of the law. At other times they will be more conservative in approach.

Hence a competent lawyer would be one who not only knows the rules relating to statutory interpretation but also the dispositions of particular courts on key issues.

A now famous provision regarding the (sometimes complete) unintelligibility of legal language is the following one, a provision from the Groundnuts Amending Order of April 1956, an Overseas Act:

Legal language, as we have seen, is not really ordinary language. That is certainly one reason why we need rules of interpretation to help us to understand what has been said or written. The rules provide us with a guide. But so of course do the decisions of the courts themselves. Statutes are interpreted by the courts which, in effect, extend their meaning by

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interpretation. Those interpretations are authoritative statements as to that meaning. They provide lawyers and the population in future with a further source of understanding the meaning of the statute.

It should be noted at the outset that when we talk of rules of construction these rules are not rules of law. They do not have the status of legal rules themselves so that if the court fails to apply the rule it has made a legal error. The rules are more properly approaches or guides to the interpretation of statutes. On this basis there is a degree of flexibility about the application of the rules. This should become obvious enough from the following discussion.

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Foreign decisions influencing principles of Interpretation

1. Literal construction

In construing a statutory provision the first and the foremost rule of construction is that of literal construction. All that the Court has to see at the very outset is, what does the provision say? The Courts are bound by the mandate of the Legislature and once it has expressed its intention in words which have a clear significance and meaning, the Court is precluded from speculating. If the provision is unambiguous and if from that provision the legislative intent is clear, the other rules of construction of statutes need not be called into aid. They are called into aid only when the legislative intention is not clear. But the courts would not be justified in so straining the language of the statutory provision as to ascribe the meaning which cannot be warranted by the words employed by the Legislature.

This rule comes directly from the English law. In an English case Hess v The State26 the court states as follows:

I have no doubt as to the intention of the legislature, but quod voluerunt non dixerunt[ i.e. that which was really intended by the legislature was not said in the statute] The legislative intent must appear from the words actually used, and not from what the legislature intended to say, but did not say

In effect what is being said is that the courts do not go beyond the words in the statute itself. These words are the outcome of the formal process by which the parliament has expressed its decision on what the law is. The statute is the formal expression of the will of parliament. The courts see themselves as merely interpreters of the will of parliament. It is not their function to speculate about what parliament 'really' intended by looking behind the statute at parliamentary debates for example. In interpreting the law under the literal approach the courts look at the statute itself and try to formulate the meaning intended by the parliament on that basis. It does not matter whether the statute is a constitution or an ordinary statute of the parliament.

26 (1895) 2 O.R.C. 112

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One of the reasons for this approach is that it appears to be a politically neutral one. There is a long tradition of the courts seeing themselves as beyond politics and issues of political ideology. By merely relying on the words in the statute they maintained some sense of political neutrality by putting themselves outside the issues which led to the adoption of any particular statute before them. Put another way, such an approach to interpretation reinforces the legitimacy of the courts in the eyes of the citizens at large. That is to say, by encouraging the belief that the courts are neutral in their approach, it is more likely that people will have faith in the operation of the court system of the country.

However, the courts do have difficulty sometimes in applying the literal rule, but the courts nevertheless will apply the literal rule in spite of the fact that its application is not completely satisfactory. In the English case Regina v Braham27, Lord Tenderden says:

Our decision may, in this particular case, operate to defeat the object of the Act; but it is better to abide by this consequence than to put upon it a construction not warranted by the words of the Act in order to give effect to what we may suppose to have been the intention of the Legislature we must give effect to the plain and obvious meaning of the clause, no matter what the result may be, and the Legislature meant what it said.

In other words, the courts under the literal approach see themselves as bound to apply the ordinary meaning of the language in the statute regardless of the consequences. Why would they do that? Again it is a matter of achieving neutrality in interpretation. In the British Westminster style of government, which applies with some variation throughout the countries of the USP region, the courts are discovers of the law and not lawmakers themselves. The task of making the law is that of the parliament alone.

The Australian case of Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of The Commonwealth of Australia28 is now a leading case in Australia regarding the role of the court and how it deals with the problem of interpretation:

Statute law, the direct product of the legislature, is perhaps the least appropriate field of all in which to indulge in judicial law-making. The corner of that field occupied by closely drafted statutes of high complexity should be particularly uninviting to the judicial law-maker. It

8 B. and C. 99

(1981) 147 CLR 297

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provides the very antithesis of those occasional legislative measures which lay down only general principles and invite the courts to supply the details. It can never be enough to justify judicial intervention that what has been enacted may seem to a court to lead to an irrational result. As Lord Reid said Of course we must go by the words of the Act and if they are only capable of one meaning then we must take that meaning however irrational the result

2. No external aid Where words plain and unambiguous-

Where the words of a statute are plain, precise and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external aid is admissible to construe those words. It is only where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more than one meaning or shades of meaning that the external aid may be looked into for the purpose of ascertaining the object which the Legislature had in view in using the words in question.

3. Mischief rule (Heydon's case)-

When a question arises as to the interpretation to be put on an enactment, what the Court is 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, 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:

What was law before the Act was passed?

What was the mischief and defect for which the law had not provided?

What remedy Parliament has resolved and appointed to cure the disease? and

The true reason of the remedy and then the judges have to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief.

4. Words coupled together to take colour from each other-

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The rule is when two or more words which are susceptible of analogous meaning are coupled together, they are understood to be used in their cognate sense and they take their colour from each other, the meaning of the more general being restricted to a sense analogous to that of the less general. This rule, however, does not apply where the Legislature has deliberately used wider words in order to widen the scope of the provision.

5. The golden rule: No hypothetical considerations-

Argument on hypothetical considerations should not have much weight in interpreting a statute. However, if the language so permits, it is open to the Court to give to the statute that meaning which promotes the benignant intent of the legislation. A Court has the power to depart from the grammatical construction, if it finds that strict adherence to the grammatical construction will defeat the object the Legislature had In view. No doubt, grammar is a good guide to meaning but a bad master to dictate.

The Golden rule was first set out in the case of Grey v Pearson29, an old British case. The gist of this rule is that if the words are given their ordinary meaning, and it is clear that this meaning does not correspond with the clear intention of the legislature (as one can find in the whole of the statute or other relevant issues), then one can depart from the ordinary meaning of the statute so that one can give effect to the intention of the legislature. As you will see, this rule has its own peculiarities.

Lord Wensley Dales statement in Grey v Pearson is important:

We are to take the whole statute together and construe it altogether, giving the words their ordinary signification, unless when so applied they produce an inconsistency, so as to justify the court in placing on them some other signification, which, though less proper, is one which the court thinks the words will bear.

Lord ESHER, then Master of the Rolls, in The Queen v Judge of the City of London Court30 criticising a judgment of Sir George Jessel, the late Master of the Rolls, says31:

,(1857) 6 HLC 106

(1892 1 Q.B.D. 273)

(p. 290)

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JESSEL, M R says that the words of sec. 2 are quite clear, and that if the words of an Act of Parliament are clear you must take them in their ordinary and natural meaning, unless that meaning produces a manifest absurdity. Now I say that no such rule of construction was ever laid down before. If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity. In my opinion the rule has always been this - if the words of an Act admit of two interpretations, then they are not clear; and if one interpretation leads to an absurdity, and the other does not, the Court will conclude that the legislature did not intend to lead to an absurdity, and will adopt the other interpretation.

The judge then refers to the remarks of Lord Watson in a case which came before the House of Lords (Vestry of St John Hampstead v Cotton32 ) where he said:

The word street in sec. 53 admittedly means, according to its natural and ordinary construction, each any and every street. On the part of the appellants it is contended that it must be read, for the purposes of the Act, as limited to old streets or to streets other than new streets as defined by sec. 112 of the statute. It is quite possible that such a construction might become imperative; but in order to justify a departure from the primary meaning of the words of the legislature, it must be shown either that the ordinary and grammatical construction of the words would lead to some absurdity, such as the legislature could never have contemplated, or that it would be plainly contrary to the general scheme disclosed in the context of the statute.

6. Absurdity or hardship-

If a literal interpretation of a statute leads to absurdity, hardship or injustice, presumably not Intended, then a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. Again, however, the Court has no power to give the language of the statute a wider or narrower meaning than the literal one, unless there is compelling reason to give such other meaning. If the language is plain the fact that the consequence of giving effect to it may lead to some absurd result is not a factor to be taken into account in interpreting a provision, as it is for the Legislature to step in and remove the absurdity. If on either of two possible views hardship must result to one or the other party, then the considerations of hardship ought to be ignored.

32 (12 App. Cas. 1)

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7. Contextual interpretation-

Although the meaning of the statutory provision has to be ascertained only from the words employed by the Legislature, the set up' and context are also relevant for ascertaining what exactly was meant to be conveyed by the terminology employed. The same words may mean one thing in one context and another in a different context. In ascertaining the true intention, of the Legislature, the Court must not only look at the words used by the Legislature but also have regard to the context and the setting in which they occur, The exact colour and shape of the meaning of words in an enactment is not to be ascertained by reading them in isolation, The provisions of the statutes which bear upon the same subject-matter must be read as a whole and in their entirety, each throwing light on and illumining the meaning of the other. The Court must have regard to the aim, object and scope of the statute to be read in its entirety. It must ascertain the intention of the Legislature by directing its attention not merely to the clause to be construed but to the entire statute; it must compare the clause with the other parts of the law, and the setting in which the clause to be Interpreted occurs. If the context clearly suggests that a particular rule of grammar is inapplicable then the requirement of context must prevail over the rule of grammar.

8. Liberal construction-

In construing a provision of a statute the Court should be slow to adopt construction which tends to make any part of the statute meaningless or ineffective. An attempt must always be made to reconcile the relevant provision as to advance the remedy intended by the statute. Where the literal meaning of the words used in a statutory provision would manifestly defeat Its object by making a part of it meaningless and ineffective, it is legitimate and even necessary to adopt the rule of liberal construction so as to give meaning to all parts of the statute and to make the whole of it effective and operative. Whether the narrower or the wider sense of a term should be adopted depends not only on the provisions of the statute in which that term occurs but also on facts and circumstances of each case. But again if the words used In the statutory provision are reasonably capable of only one construction the doctrine of liberal construction can be of no assistance. Procedural enactments should be construed liberally in such a manner as to render the enforcement of substantive rights effective. But the requirements as to the time-Iimit within which an administrative act is to be performed are to be liberally construed. Provisions ensuring the security of fundamental human rights must, unless the mandate be precise and unqualified, be construed liberally so as to uphold the

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right. This rule applies to the interpretation of constitutional and statutory provisions alike. Welfare, social and beneficial statutes are not to be construed strictly. Doubts are resolved in favour of the class of persons for whose benefit the statute is enacted. On the other hand penal and taxing statutes and statutes excluding Court's jurisdiction should be strictly construed.

9. Harmonious construction-

Every statute has to be construed as a whole and the construction given should be a harmonious one. It is a cardinal rule of construction that when there are in a statute two provisions which are in such conflict with each other, that both of them cannot stand together, they should possibly 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. It is the duty of the Courts to avoid conflict between two provisions, and whenever it is possible to do so to construe provisions which appear to conflict so that they harmonise. This rule of harmonious construction applies not only to different provisions in one Act but also to different cognate Acts such as the Court Fees Act and the Code of Civil Procedure. Where, however, the words of the statute are not reasonably capable of the construction canvassed, then It would be unreasonable and illegitimate for the Court to limit the scope of those words - arbitrarily solely for the purpose of establishing harmony between the assumed object and the scheme of the Act.

10. Construction to avoid invalidity-

It is the duty of the Court to endeavour as far as possible to construe a statute in such a manner that the construction results in validity rather than its invalidity and gives effect to the manifest Intention of the Legislature enacting that statute. An interpretation leading to the failure of the plain intention of the Legislature by reason of a slight in exactitude in the language of the provision should be avoided. A statute is designed to be workable, and the interpretation thereof by a Court should be to secure that object, unless crucial omission or clear direction makes that end unattainable. The reason behind the maxim is that it is to be presumed that the Legislature or other legislative authority would not make an infructuous or unconstitutional provision. The words of a statute must be construed so as to give sensible meaning to them. An interpretation which would defeat the purpose of the statutory provision and, in effect obliterate it from the statute book should be eschewed. If more than one

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construction is possible, the one which preserves its workability and efficacy should be preferred to the other which would render it otiose or sterile.

Thus, an Act of Legislature must be so interpreted, wherever possible, so as to make it constitutional rather than unconstitutional. Likewise, a rule, i.e. a piece of delegated legislation, should be so interpreted as to make it not only constitutional but also within the authority conferred by the Legislature on the Government while conferring on it the power to make rules.

11. Reading down -

While making such construction It is permissible for the Court even to "read down" a provision in order to so understand it as not to attempt something beyond the competence of the legislative body. This is called the principle of "reading down".

12. Ejusdem generis:-

The ejusdem generis rule is explained in Halsbury's Laws of England thus:- '"As a rule, where in a statute there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified, although this, as a rule of construction;, must be applied with caution, and subject to the primary rule that statutes are to be construed in accordance with the intention of Parliament. For the ejusdem rule to apply, the specific words must constitute a category , class or genus; if they do constitute such a category, class or genus, then only things which belong to that category , class or genus fall within the general words "

13. Same words, same meaning-

Where a Legislature uses same expression in the same statute at two places or more, then the same interpretation should be given to that expression unless the context otherwise requires. But the application of the rule of "same word, same meaning" may be excluded by the context. If one construction will lead to an ambiguity while another will give effect to what common sense would show was obviously Intended, the construction which would defeat the ends of the Act must be rejected even if same words used In the same section and even in the same sentence have to be construed differently.

14. Later law abrogates earlier laws not consistent with It-

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This principle is expressed in the Latin maxim posteriores leges priores contrarias abrogant. This principle has been applied by the Supreme Court in several cases. After discussing the principles of interpretation it would also be useful to discuss about mandatory and directory provisions.

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CONCLUSION

Thus from the above discussion we see the relevance of foreign decisions in the interpretation of statutes. The urge to adopt foreign decisions in domestic legal system gets inflated more because there is inadequacies in the available matter upon construction of a particular principle. Since India is a developing country, the legal paraphernalia being relatively new, citation from developed nations facilitates improvement of the quality of construction. Many of the principles used for interpretation has been an endowment of foreign insightfulness. Naturally, its reflection in foreign judgments provides bountiful assistance in interpretation of indigenous matters. Many a time the judges are compelled by their high prerogatives and the enduring influence of expertise and legal purity plays predominating character in interpretation.

The first general proposition is that the aim of interpretation of a legal text, whether it be a private instrument or a public statute, must be to derive a meaning from its nature and

contents. The starting point must be the text itself.The primacy of the text is thefirst principle of interpretation for the judge consideringa point of interpretation. External

materials ought therefore to be subordinate to the text itself. Often lawyers argue cases on the reverse hypothesis. Justice Frankfurter recalled the lawyer who said to the US Supreme

Court, the legislative history is doubtful so I invite you to go to the statute. The apparent meaning of statutory language is the starting point but not the end of interpretation. A judge must consider all relevant contextual material in order to decide what different meanings the text is capable of letting in and what is the best interpretation among competing solutions.

Butthe judge's task is interpretation not interpolation. Interpretation is not infinitely

expandable. What falls beyond that range of possible contextual meanings of the text will not be a result attainable by interpretation. There is a Rubicon that judges may not cross: principles of institutional integrity forbid it.

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BIBLIOGRAPHY

Books

A B kafaltiya, Interpretation of statutes (2008 edn., Universal Law Publishing Co.

Pvt. Ltd., New Delhi)

Dr. Avtar Singh, Introduction to interpretation of statutes, (2001 edn, Wadhwa and

Company Nagpur: New Delhi)

Justice G.P. Singh, Principles of Statutory interpretation (10th edn, 2006, Wadhwa

and Company Nagpur: New Delhi)

Prof. T. Bhattacharya, The interpretation of statutes (7th edn., 2009, Central Law

Agency: Allahabad)

Vepa P. Sarathi, Interpretation of Statutes, (5th edn. 2010, Eastern Book Company: Lucknow)

Articles

Foreign precedents and judicial reasoning: the American debate and British practice

Proof of foreign law by reference to the foreign court, J.J. Spigelman

Principles relating to the interpretation of statutes and constitutions

Purpose and Context in Statutory Interpretation

Statutory Interpretation: General Principles and Recent Trends, Larry M.

Eig

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Documents

Final Draft ISPL Rishabh (1)