Professional Documents
Culture Documents
Words and phrases are symbols (not scientific symbols) that stimulate mental
Fringe meaning of words/ the penumbra in addition to the core meaning of the words
(Borderline cases).
Seeking 'intention of the maker'? or the 'legislative intent of the text itself'?
Two authors A&B- A says something, B says something else when asked about
legislators, then how can we ensure about the particular intention behind a legal text?
text. Secondly, that Parliament becomes functus officio after they have passed that
Bill.
Dworkin- It is my opinion but there are other interpretations possible which are
equally good. We would want that judge to be sent to jail. And yet, when we look
back, intractable, pervasive and endless. Tribes of interpreters, a judge in one set of
facts gives a particular decision, and the same judge in similar fact scenario in another
case might give a different decision. Is there no right answer and only different
and therefore, not acceptable. By falsifying other interpretations, you bring down your
own interpretation. There is truth in interpretation; the question is, where does it lie?
activity. We may interpret statutes because it has been done in the past. The practice
of interpretation has some point and it embodies some values and interpretative
values, etc. and generally agree at a very high level of abstraction. At a lesser level of
abstraction however, disagreements emerge. For ex. majority and minority opinions.
The true interpretation of the object is the reading of that which best acquits the
being in partnership with those who were there before you. So a judge is in
Felix:-
Various ambiguities can be there. Ambiguity means when a term is capable of having
Doctrine of separation of powers, but overlaps will be there. You cannot say that there
case. It is a good illustration where Justice Srikrishna fell in minority in this case was
in majority in a previous 3-judge bench case in Veriappa Textiles Case wherein there
was a similar issue. It was an Income Tax case and he took a view that if we hold this
interpretation, then we will be jumping into the field of legislation and usurping its
power, therefore we cannot interpret it like this. Let the gap be filled by legislature but
we cannot fill.
He doesn't say that judges cannot make law, but where judges have to directly make
law. In a scheme of constitutional law, there are examples like Vishakha v. State of
S.19(1), Bennion- Only a court has the power to authoritatively determine what the
law is. The term court has to be widely construed. Any Body, any authority which
exercising sovereign judicial functions of the state would be included in the ambit of
HLA Hart- A supreme tribunal has the last word in saying what the law is and when it
has said it, the statement that it was wrong has no consequences within the system.
Bennion says that the interpreter's duty is to arrive at the legal meaning of the
enactment which is not necessarily the same as its grammatical meaning. This must be
done in accordance with the rules, principles, presumptions and canons which govern
statutory interpretation (In this code, referred to as the interpretative criteria or guides
to legislative intention).
Enactment is the unit of inquiry. S.138(1), Bennion- As the term is generally used, an
enactment is a legal proposition laid down in an act or other legislative text with the
effect that when facts fall within an indicated area called the "factual outline",
specified legal consequences called the "legal thrust" are called forth.
Factual outline- S.143- Enactment lays down a legal rule triggered by existence of
certain facts, indicated in the outline form. This is the statutory factual outline; court
may narrow or widen it. When the literal meaning is wider or narrower than
parliament's intention, the court arrives at two outlines and this is a judicial factual
outline. This shows the facts which will trigger operation of the enactment in future
cases.
a.) Derives from the way a general interpretative criterion applies to the text of the
enactment and the facts of the instant case (and to other factual situations within the
b.) Serves as a guide to the construction of the enactment in its application to those
facts.
grammatically ambiguous enactment, it appears that the interpretative factors all point
in favour of one of the opposing constructions and against the other, the doubt is to be
respective weights of the relevant interpretative factors and determine which of the
opposing constructions they favour or balance. Unless, in the light of the factors, the
informed basis whether or not there is real doubt about the legal meaning of the
enactment. If there is, the interpreter moves on to the second stage of resolving the
doubt. (The experienced interpreter combines the stages but notionally they are
separate).
act containing it, the legislative history of that act, the provisions of other acts and
pari-materia and all facts constituting and concerning the subject matter of the act.
Informed interpretation rule- S.201, it is a rule of law in this code that the person who
construes an enactment must infer that the legislator when settling his wording,
intended it to be given a fully informed, rather than purely literal interpretation though
Accordingly, the court does not decide whether or not a real doubt exists as to the
meaning of an enactment (and if so, how to resolve it) until the court has first
discerned and considered, in the light of the guides to legislative intention, the context
of the enactment, including all such matters as may illumine the text and make clear
the meaning intended by the legislator in the factual situation of the instant case.
the judiciary and the legislature. This is on the basis of separation of powers doctrine.
The courts have to be conscious of where is the separation line between adjudication
and legislation. You cannot usurp the legislative function by performing adjudication.
Lord Herschell's Rule as laid down in Bank of England v. Vagliano Bros.- "I think the
proper course is, in the first instance to examine the language of the statute, and to ask
what is its natural meaning, uninfluenced by any considerations, derived from the
previous state of the law, and not to start with enquiring how the law previously
stood, and then, assuming that it was intended to leave it unaltered, to see if the words
of the enactment will bear an interpretation in conformity with the dispute. If treated
in this fashion it appears to me that its utility will be almost entirely destroyed and the
very object with which it was enacted will be frustrated. The purpose of such a statute
surely was that on any point specifically dealt with by it, the law should be
ascertained by interpreting the language used, instead of, as before, by roaming over a
S.150 of Bennion is titled "Nature of the Legal Meaning"- As stated in code S.2, the
interpreter is required to determine and apply the legal meaning of the enactment, that
is the meaning that correctly conveys legislative intention. This usually corresponds to
the grammatical meaning of the verbal formula that constitutes the enactment. If
however the verbal formula, in its application to the facts of the instant case, is
ambiguous, the legal meaning will be in doubt. Even where the verbal formula is not
ambiguous, there may be real doubt as to the legal meaning because the relevant
factors (interpretative factors) drawn from the criteria laid down by law as guides to
interpretation.
Grammatical meaning is the starting meaning which usually does but sometimes does
S.151 (4 sub-sections)
ii.) The grammatical meaning of an enactment is clear when, apart from legal
iii.) Even though the grammatical meaning of enactment is clear, it may not be
possible to predict with certainty how it will apply to particular facts. This arises
where the enactment uses a broad term, or confers authority on some persons to
exercise judgment or discretion in relation to those facts. In such a case, the enactment
If you depart from the grammatical meaning in order to derive legal meaning which is
When the grammatical meaning is ambiguous. There are various types of ambiguities.
The ambiguity has to be resolved and semantic obscurity has to be removed, there is a
two-stage process to remove it. The objective is not to arrive at grammatical meaning
grammatically ambiguous, the legal meaning is the one to which on balance the
factors arising from the relevant interpretative criteria accord the greater weight. The
3 types of Ambiguities:-
Semantic Ambiguity- It is caused by the fact that one word may in itself have several
Contextual Ambiguity- Where there is conflict between the enactment and its
Semantic Obscurity- S.155- Where, in relation to the facts of the instant case, the
version of the enactment thus arrived at, is referred to as the "corrected version". The
corrected version is then dealt with as if it had been the actual wording of the
enactment. Removal of semantic obscurity does not mean that there is no ambiguity.
legislators intend the court to apply a construction which rectifies any error in the
drafting of the enactment, where it is required in order to give effect to the legislator's
Inco Europe v. First Choice- The court must be abundantly sure of before adding,
omitting or substituting words- i.) The intended purpose of the statute or provision in
question. ii.) That by inadvertence, the draftsmen and parliament failed to give effect
to that purpose in the provision in question, iii.) The substance of the provision
parliament would have made, although not necessarily the precise words parliament
would have used, had the error in the Bill been noticed. The third of these conditions
cross the boundary between construction and legislation. Sometimes, even when these
conditions are met, the court may find itself inhibited from what is alteration in
language may be too far reaching and therefore the court may restrict itself from
garbled text- A text may be garbled by the omission of words, the inclusion of
mistakes. The duty of the court is to find out the intended grammatical meaning.
ii.) The text containing an "error of meaning". The meaning is vitiated by some
error on the part of the drafter which is not apparent within "as being an error" on the
face of the text. Possible causes- The drafter may have misconceived the legislative
project or based the text on a mistake of fact or made an error in the applicable law or
iii.) A text containing a casus omissus- Where the literal meaning of the enactment
goes narrower than the object of the legislator, the court may be required to apply a
coercive instrument, backed by the physical forces of the state, it is presumed that
Parliament does not intend the enactment to go wider in its operation than is necessary
to remedy the mischief in question. Ex.- S.32 of the Sexual Offences Act, 1956 made
immoral purposes." Immoral purposes can be various. The purposes are not very
clear. The court said that it is only applicable to immoral purpose of sexual nature and
not to others.
v.) The case where there is textual conflict (conflicting texts)- Can be within the same
enactment in relation to the facts of the instant case "taking the enactment in isolation
from any other enactment"- a. where the enactment is clear, i.e. one grammatical
The first argument is the formalist argument- Based on the separation of powers-
Creation of judgment made law trenches upon the law making power of the Congress.
But, entire law making power is not vested with Congress alone.
analogy. The basic essence of it is that they treat statutes as private deals or contracts.
They are public contracts between interest groups and legislatures. Judges here are
merely agents who enforce these public contracts, and as agents, they cannot change
the terms of the contract. The author disagrees and says that judges even when they
interpret contracts, they can update the deals as per changed circumstances. It is very
difficult to say that there is only one party versus the other.
judges may substitute their own personal values for legislatively determined values.
people's aspirations and needs cannot be met by the elected legislature and appointed
executive. Judiciary's job is when the discontent is built towards government, so the
overall legitimacy of it gets decreased and it might lead to vehement opposition and
the courts therefore contribute to the overall legitimacy of the government itself by
Imaginative Reconstruction (Richard Posner)- "I suggest that the task for the judge
reconstruction. The judge should try to think his way as best as he can into the minds
of the enacting legislators and imagine how they would have wanted the statute
Federal Judge Ruggero J. Aldisert- When it comes to IoS, the cumulative experience
techniques, other judges choose others suitable to them. Judge Learned Hand- "I have
often said to myself, what do you mean by interpreting, there are a lot of fringes,
terms are equivocal and ambiguous, what do you mean by what they meant?"