COURTS ARE TO INTERPRET LAW AND NOT TO LEGISLATE IT

Intentionalism is a concept arising out of authoritative jurisprudential perspective on the

nature and sources of law. The theory of intentionalism is a touchstone to judge a particular

law, a law should be an expressed will of some authoritative sovereign or else it cannot come

under the scope of law’s definition. Thus while interpreting a particular law one should look

into the ‘expressed will’ or the intention of the authoritative sovereign, i.e. the legislators.

The concept of intentionalism is a subset of jurisprudence of originalism, which seeks the

original meaning of a particular law as the basis of present-day adjudication.

The authorities who try to interpret the law often attempt to find the original intent of the

legislators and try to justify the doctrine of intentionalism, as they regard this approach as a

legitimate basis for proper adjudication48. However this attempt to justify intentionalism has

to be disregarded as it is not possible for an interpreter to find out the original intent and

adjudicate on the basis on such findings. Original intent has to found from the historical

records and the interpreter will apply his subjective understanding to such historical record.

Thus the original intention of the legislators which is used by the interpreter will be nothing

but the interpreter’s subjective understanding. Additionally, the interpreter disregards the fact

that it is not possible to know what the legislators would have done to apply the law in a

specific modern situation. If also the interpreter found the original intent, it is not necessary

that the same intent behind the law will be apt for the society in the present time. Thus

interpreting a law on the basis of original intention is not a proper way of interpretation

because of its subjective nature.

1. PADMA SUNDRA RAO V. STATE OF TAMIL NADU

The controversy involved lies within a very narrow compass, that is, whether after

quashing of notification under Section 6 of the Land Acquisition Act, 1894

(hereinafter referred to as ―the Act‖) fresh period of one year is available to the

State Government to issue another notification under Section 6. In the case at hand

such a notification issued under Section 6 was questioned before the Madras High

Court which relied on the decision of a three-Judge Bench in N. Narasimhaiah

v. State of Karnataka(1996) 3 SCC 88 and held that the same was validly

issued.

6. Declaration that land is required for a public purpose. – (1)

Subject to the provisions of Part VII of this Act, when the appropriate government is

satisfied, after considering the report, if any, made under Section 5-A sub-section (2),

that any particular land is needed for a public purpose, or for a company, a

declaration shall be made to that effect under the signature of a Secretary to such

Government or of some officer duly authorized to certify its orders, and different

declarations may be made from time to time in respect of different parcels of any

land covered by the same notification under Section 4 sub-section (1), irrespective of

whether one report or different reports has or have been made (wherever required)

under Section 5-A sub-section (2)

“It is a well-settled principle in law that the Court cannot read anything into a statutory

provision which is plain and unambiguous. A statute is an edict of the legislature. The

language employed in a statute is the determinative factor of legislative intent. Words and

phrases are symbols that stimulate mental references to referents. The object of interpreting a

statute is to ascertain the intention of the legislature enacting it. The intention of the

legislature is primarily to be gathered from the language used, which means that attention

should be paid to what has been said as also to what has not been said. As a consequence, a

construction which requires for its support, addition or substitution of words or which results

in rejection of words as meaningless has to be avoided.

While interpreting a provision the court only interprets the law and cannot legislate it.

If a provision of law is misused and subjected to the abuse of process of law, it is for

the legislature to amend, modify or repeal it, if deemed necessary. The legislative

casus omissus cannot be supplied by judicial interpretative process. Language of

Section 6(1) is plain and unambiguous. There is no scope for reading something into

it, as was done in Narasimhaiah case.

Two principles of construction – one relating to casus omissus and the other in

regard to reading the statute as a whole – appear to be well settled. Under the first

principle a casus omissus cannot be supplied by the court except in the case of clear

necessity and when reason for it is found in the four corners of the statute itself but

at the same time a casus omissus should not be readily inferred and for that purpose

all the parts of a statute or section must be construed together and every clause of a

section should be construed with reference to the context and other clauses thereof

so that the construction to be put on a particular provision makes a consistent

enactment of the whole statute. This would be more so if literal construction of a

particular clause leads to manifestly absurd or anomalous results which could not

have been intended by the legislature. ―An intention to produce an unreasonable

result‖, said Danckwerts, L.J., in Artemiou v. Procopiou [(1965) 3 All ER 539,

544], ―is not to be imputed to a statute if there is some other construction available.

Where to apply words literally would ―defeat the obvious intention of the legislation

and produce a wholly unreasonable resul, we must ―do some violence to the words

and so achieve that obvious intention and produce a rational construction.

There is, however, substance in the plea that those matters which have attained

finality should not be reopened. The present judgment shall operate prospectively to

the extent that cases where awards have been made and the compensations have
 been paid, shall not be reopened, by applying the ratio of the present judgment. The

appeals are accordingly disposed of and the subsequent notifications containing

declaration under Section 6 of the Act are quashed.

2. D.M. ARAVALI GOLF CLUB V. CHANDER HASS

The brief facts which are necessary for the disposal of the present appeal are that the

plaintiffs (respondents in this appeal) were appointed as Mali (gardener) in the service of the

defendant-appellant, which is a golf club run by the Haryana Tourism Corporation in the year

1989 and 1988 respectively on daily wages. Subsequently in the year 1989 they were told to

perform the duties of Tractor Drivers, though there was no post of tractor driver in the

employers establishment. However for a number of years they continued to be paid wages for

the post of Mali. Thereafter on a recommendation made by the Head Office, the appellants

started paying those wages of tractor driver on daily wage basis, as per rates recommended by

the Deputy Commissioner. Though they continued to work for about a decade as tractor

drivers, their services were regularized against the post of Mali in the year 1999 and not as

tractor driver. When despite representations their grievance was not redressed, the

respondents herein filed civil suit in the month of April, 2001 claiming regularization against

the posts of tractor driver. Their claim was rejected by the Trial Court which observed that

there was no post of tractor driver in the establishment, and the suit was dismissed. The Trial

Court held that plying a tractor is part and parcel of the job of Mali in a Golf Club, since the

Golf Field of the Club is vast and needs to be maintained with mechanical gadgets.

The Court cannot direct the creation of posts. Creation and sanction of posts is a prerogative

of the executive or legislative authorities and the Court cannot arrogate to itself this purely

executive or legislative function, and direct creation of posts in any organization. This Court

has time and again pointed out that the creation of a post is an executive or legislative

function and it involves economic factors. Hence the Courts cannot take upon themselves the
power of creation of a post. Therefore, the directions given by the High Court and First

Appellate Court to create the posts of tractor driver and regularize the services of the

respondents against the said posts cannot be sustained and are hereby set aside.

Before parting with this case we would like to make some observations about the limits of the

powers of the judiciary. We are compelled to make these observations because we are

repeatedly coming across cases where Judges are unjustifiably trying to perform executive or

legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial

activism Judges cannot cross their limits and try to take over functions which belong to

another organ of the State.

Judges must know their limits and must not try to run the Government. They must have

modesty and humility, and not behave like Emperors. There is broad separation of powers

under the Constitution and each organ of the State the legislature, the executive and the

judiciary must have respect for the others and must not encroach into each other’s

domains.

Again, there is no liberty, if the judicial power be not separated from the legislative and

executive. Were it joined with the legislative, the life and liberty of the subject would be

exposed to arbitrary control; for the judge would be then the legislator. Were it joined to

the executive power, the judge might behave with violence and oppression.

There would be an end of everything, were the same man or the same body, whether of

the nobles or of the people, to exercise those three powers, that of enacting laws, that of

executing the public resolutions, and of trying the causes of individuals. We fully agree

with the view expressed above. Montesquieus warning in the passage above quoted is
particularly apt and timely for the Indian Judiciary today, since very often it is rightly

criticized for `over-reach and encroachment into the domain of the other two organs.

The Indian Constitution has not indeed recognized the doctrine of separation of powers in

its absolute rigidity but the functions of the different parts or branches of the Government

have been sufficiently differentiated and consequently it can very well be said that our

Constitution does not contemplate assumption by one organ or part of the State, of

functions that essentially belong to another

When a State action is challenged, the function of the court is to examine the action in

accordance with law and to determine whether the legislature or the executive has acted

within the powers and functions assigned under the constitution and if not, the court must

strike down the action. While doing so the court must remain within its self-imposed

limits. The court sits in judgment on the action of a coordinate branch of the Government.

While exercising power of judicial review of administrative action, the court is not an

appellate authority. The constitution does not permit the court to direct or advise the

executive in matters of policy or to sermonize qua any matter which under the

constitution lies within the sphere of legislature or executive, provided these authorities

do not transgress their constitutional limits or statutory powers.

The justification often given for judicial encroachment into the domain of the executive

or legislature is that the other two organs are not doing their jobs properly. Even assuming

this is so, the same allegation can then be made against the judiciary too because there are

cases pending in Courts for half-a-century as pointed out by this Court in Rajindera Singh

vs. Prem Mai & others (Civil Appeal No. 1307/2001) decided on 23 August, 2007.
If the legislature or the executive are not functioning properly it is for the people to

correct the defects by exercising their franchise properly in the next elections and voting

for candidates who will fulfil their expectations, or by other lawful methods e.g. peaceful

demonstrations. The remedy is not in the judiciary taking over the legislative or executive

functions, because that will not only violate the delicate balance of power enshrined in the

Constitution, but also the judiciary has neither the expertise nor the resources to perform

these functions.

Of the three organs of the State, the legislature, the executive, and the judiciary, only the

judiciary has the power to declare the limits of jurisdiction of all the three organs. This is

a great power and hence must never be abused or misused, but should be exercised by the

judiciary with the utmost humility and self-restraint.

The moral of this story is that if the judiciary does not exercise restraint and over-

stretches its limits there is bound to be a reaction from politicians and others. The

politicians will then step in and curtail the powers, or even the independence, of the

judiciary (in fact the mere threat may do, as the above example demonstrates). The

judiciary should, therefore, confine itself to its proper sphere, realizing that in a

democracy many matters and controversies are best resolved in non-judicial setting.

In view of the above discussion we are clearly of the view that both the High Court and

First Appellate Court acted beyond their jurisdiction in directing creation of posts of

tractor driver to accommodate the respondents. Appeal Allowed.

LITERAL RULE

The Literal Rule, also known as the Plain-Meaning rule, is a type of statutory construction,

which dictates that statutes are to be interpreted using the ordinary meaning of the language
 of the statute unless a statute explicitly defines some of its terms otherwise. In other words,

the law is to be read word for word and should not divert from its true meaning. It is the

mechanism that underlines textualism and, to a certain extent, originalism. To avoid

ambiguity, legislatures often include "definitions" sections within a statute, which explicitly

define the most important terms used in that statute. But some statutes omit a definitions

section entirely, or (more commonly) fail to define a particular term. The plain meaning rule

attempts to guide courts faced with litigation that turns on the meaning of a term not defined

by the statute, or on that of a word found within a definition itself. According to the plain

meaning rule, absent a contrary definition within the statute, words must be given their plain,

ordinary and literal meaning. The first and most elementary rule of construction is that it is to

be assumed that the words and phrases of technical legislation are used in their technical

meaning if they have acquired one, and otherwise in their ordinary meaning, and the second

is that the phrases and sentences are to be construed according to the rules of grammar. Main

advantages of The Literal Rule:

1) No scope for the judges own opinions or prejudices to interfere.

2) Respects parliamentary supremacy and upholds separation of power.

3) Encourages drafting precision, promotes certainty and reduces litigation.

3. M.V. JOSHI V. M.U. SHIMPI

The question in this case was whether the butter made from curd would be butter within the

meaning of rule. As per the rule A- 11.05, the amended definition of butter includes the

product prepared exclusively from milk, cream or curd of cow or buffalo. As it is done to

clarify the position in view of the conflicting decisions. This case was related to Food and

Adulteration Act, it was contented that the act does not apply to butter made from curd.
 However, SC held that the word butter in the said act is plain and clear and there is no need to

interpret it differently. Butter is butter whether made from milk or curd.

Thus, when the language of a provision is plain and clear, court cannot enlarge the scope of

the provision by interpretive process. Further, a construction which requires for its support

addition of words or which results in rejection of words as meaningless has to be avoided. It

is because if the words in the statute are capable of only one meaning, it prevents courts from

taking sides in legislative or political issues. They also point out that ordinary people and

lawyers do not have extensive access to secondary sources and thus depending on the

ordinary meaning of the words is the safest route and also encourages precision in drafting.

This is done as per ‘Literal Rule of Interpretation’ which means law must be read, word for

word, and it should not divert from its true meaning. As per the court, the interpretation of the

statute depends on the intention of the legislature and here the intention was clearly expressed

in the rule. The reasoning of the Apex Court was based on the emphasis. The emphasis is,

therefore, on the basic material from which butter is prepared and not the process by which it

is made. Curd is prepared from milk by souring it. Butter prepared from curd can, therefore,

be said to be butter prepared from milk itself, after it has undergone the process of souring.

There is also a third method, which is used in some dairies and that is produce butter directly

from milk itself. In these cases, the basic material from which butter is made is 'milk. Only

'the processes adopted for making it are different. The preparation of cream or curd is only an

intermediate process in the manufacture of butter from milk. Butter made from curd, is

therefore also butter made from milk.

4. JUGALKISHORE V.RAW COTTON COMPANY

The Supreme Court decided that the cardinal rule of construction of statutes is to read the

statutes literally, that is by giving to the words their ordinary, natural and grammatical

meaning. If, however, such a reading leads to absurdity and the words are susceptible of
another meaning, the court may adopt the same. But when no such alternative construction is

possible, the court must adopt the ordinary rule of literal interpretation. Hence, the ratio of

this case was that for the application of literal rule a clear and unequivocal meaning is

essential.

The only substantial question raised in this case was whether the respondent company were

the transferees of the decree within the meaning of Order XXI read with Rule 16 of the CPC.

The Supreme Court held that the transfer in writing of a property which is the subject-matter

of a suit without in terms transferring the decree passed or to be passed in the suit in relation

to that property does not entitle the transferee to apply for execution of a decree as a

transferee of the decree by an assignment in writing within the meaning of Order XXI read

with Rule 16 of the CPC. Hence, the decree was not transferred or agreed to be transferred to

the respondent company by the document under consideration and the later cannot claim to

be transferees of the decree by an assignment in writing as contemplated by Order XXI read

with Rule 16 of CPC. he first source from which the legislative intent is to be sought is the

words of the statute. Then an examination should be made of the context, and the subject

matter and purpose of the enactment. After the exhaustion of all intrinsic aids, if the

legislative intent is still obscure, it is proper for the court to consult the several extrinsic

matters for further assistance. And during the consideration of the- various sources of

assistance, further help may, of course, be found on the use of the numerous rules of

construction. In present case, it was observed: “The cardinal rules of construction of statutes

is to read the statutes literally, that is by giving to the words their ordinary, natural and

grammatical meaning. If, however, such reading leads to absurdity and the words are

susceptible of author meaning, the court may adopt the same. But if no such alternative

construction is possible the court must adopt the ordinary rule of literal in determining the

meaning of any word or ordinary meaning of that word or phrase in a statute, the first
 question to be asked is – “What is the natural or ordinary meaning of that word or phrase in

its context in the statute? It is only when that meaning leads to some result which cannot

reasonably be supposed to have been the intention of the Legislature that it is proper to look

for some other possible meaning of the word or phrase”. The context, as already seen, in the

construction of statutes, means the statute as a whole, the previous state of the law, other

statutes in pari materia, the general scope of the statute and the mischief that it was intended

to.

GOLDEN RULE

“The grammatical and ordinary sense of the words is to be adhered to unless that would lead

to some absurdity or some repugnance or inconsistency with the rest of the instrument in

which case the grammatical and ordinary sense of the words may be modified so as to avoid

the absurdity and inconsistency, but no farther."

So, The Golden Rule is a modification of The Literal Rule to be used to avoid an absurd

outcome.

The main advantage of The Golden Rule is that drafting errors in statutes can be corrected

immediately. A major disadvantage of The Golden Rule is that judges can technically change

the law by changing the meaning of words in statutes. They can, potentially infringing the

separation of powers between legal and legislature. The Golden Rule won’t help if there is no

absurdity in the statute.

5. LEE V. KNAPP

Section 77(1) of the Road Traffic Act, 1960provided that “a driver causing accident shall stop

after the accident”, the interpretation of the word stop was in question. In this case, the driver

of the motor vehicle stopped for a moment after causing an accident and then ran away.

Applying the golden rule the court held that the driver had not fulfilled the requirement of the
 section, as he had not stopped for a reasonable period so as to enable restricted person to

make necessary inquiries from him about the accident at the sot of the accident.

Section 77 (1) of the Road Traffic Act, 1960, the phrase ―the driver of the motor vehicle

shall stop‖ is properly to be construed as meaning that the driver of the motor vehicle shall

stop it and remain where he has stopped it for such a period of time as in the prevailing

circumstances, having regard in particular to the character of the road or place in which the

accident happened, will provide a sufficient period to enable persons who have a right so to

do, and reasonable ground for so doing, to require of him direct and personally the

information which may be required under the section. I think myself that it is the driver‘s

own personal obligation to stay for such a period as I have indicated, and personally to

provide the information.

6. NOKES V. DONCASTER AMALGAMATED COLLIERIES LTD

If the choice is between two interpretations, said Viscount Simon, L.C. in Nokes v.

Doncaster Amalgamated Collieries Ltd. "We should avoid a construction which would reduce

the legislation to futility or the narrower one which would fail to achieve the manifest

purpose of the legislation. We should rather accept the bolder construction based on the view

that Parliament would legislate only for the purpose of bringing about an effective result.

Thus, if the language is capable of more than one interpretation, one ought to discard the

literal or natural meaning if it leads to an unreasonable result, and adopt that interpretation

which leads to reasonably practical results."

In this case section 154 of the Companies Act, 1929 was in question. This provision provided

machinery for the transfer of the undertaking (an old company) lo a new company. Under the

section, "transfer" includes all property, rights, liabilities and duties of the former company

vest with the latter. An issue therefore was whether a contract of service previously existing
between an individual and transferor company automatically becomes a contract between the

individual and the latter company. Hence, action was taken against him; however, no notice

was given to him about the proposed amalgamation either by the transferor or the transferee

company. It was contended that the contract of service could fall under the term "property".

Rejecting the contention, the House of Lords held that the benefits of contract entered into

between the former company and the employee cannot be transferred (by X company to Y

company) without the consent of the employee. Notice of amalgamation by transferor or

Transferee Company to the individual servant was essential. The golden rule is that the words

of a statute must prima facie be given their ordinary- meaning. If the legislature really desired

that workmen should be transferred to a new company without their consent being obtained,

plain words could be derived to express this intention. As in the present case, neither the

provision of law provides such a primary meaning as applicable to the transfer of personal

service, and nor there is any overt act on the part of the transferor or the transferee company

informing the worker as regards the amalgamation The contract did not exist between the

appellant and the respondent and therefore the latter company cannot take any action against

the employee regarding service.

HARMONIOUS CONSTRUCTION

When there is a conflict between two or more statues or two or more parts of a statute then

the rule of harmonious construction needs to be adopted. The rule follows a very simple

premise that every statute has a purpose and intent as per law and should be read as a whole.

The interpretation consistent of all the provisions of the statute should be adopted. In the case

in which it shall be impossible to harmonize both the provisions, the court’s decision

regarding the provision shall prevail.

The rule of harmonious construction is the thumb rule to interpretation of any statute. An

interpretation which makes the enactment a consistent whole, should be the aim of the Courts
 and a construction which avoids inconsistency or repugnancy between the various sections or

parts of the statute should be adopted. The Courts should avoid “a head on clash”, in the

words of the Apex Court, between the different parts of an enactment and conflict between

the various provisions should be sought to be harmonized. The normal presumption should be

consistency and it should not be assumed that what is given with one hand by the legislature

is sought to be taken away by the other. The rule of harmonious construction has been tersely

explained by the Supreme Court thus, “When there are, in an enactment two provisions which

cannot be reconciled with each other, they should be so interpreted, that if possible, effect

should be given to both”. A construction which makes one portion of the enactment a dead

letter should be avoided since harmonization is not equivalent to destruction.

Harmonious Construction should be applied to statutory rules and courts should avoid absurd

or unintended results. It should be resorted to making the provision meaningful in the context.

It should be in consonance with the intention of Rule makers. Rule of Harmonious

construction is applicable to subordinate legislature also.

7. SIRSILK LTD. VS GOVT. OF ANDHRA PRADESH

There was a dispute between the employer and the workmen of Sirsilk Ltd. which was

referred to an industrial tribunal. After adjudication, the tribunal sent its award to the

government for publication under Section 17(1) of the Industrial Disputes Act, 1947.

However, before the award would have been published, the parties to the dispute came to a

settlement and therefore, wrote a letter to the government, stating the fact that the dispute had

been settled and further requested that the award shall not be published. On the government’s

refusal to withhold the publication, the employer approached the High Court for a writ or

direction to the government to withhold the publication. The High Court rejected the writ

petition as well as the writ arising therefrom. The parties then appealed by special leave to the

Supreme Court. The party contended that the Section 17 of the Industrial Disputes Act, 1947
is directory in nature and not mandatory and the main purpose of the Industrial Disputes Act

is to maintain peace between the parties in an industrial concern and since, the dispute

between them is already settled. Thus, the settlement arrived at should be respected and

industrial peace should not be allowed to be disturbed by the publication of the award which

might be different from the settlement.

The Supreme Court applied the Doctrine of Harmonious Construction to bring a settlement

between the provisions of Section 17 and Section 18 of the Industrial Disputes Act, 1947. A

mandatory statute or statutory provision is one which must be followed in order that the

proceeding to which it relates may be valid. A directory statute or provision is one which

need not be complied with in order that the proceeding to which it partakes may be valid.

The Court held Section 17 as mandatory due to the use of word “shall” as Section 17(1)

states, “Every award shall within a period of thirty days from the date of its receipt by the

appropriate government be published in such manner as the appropriate government thinks

fit.” Therefore, it is the duty of the Government to publish the award and thus the contention

of the appellant did not hold good. Further, the Court observed Section 18 (1) and (2) which

provide for settlement between the parties in course of conciliation proceedings and

enforceability of award. The main purpose of the Act was to maintain peace between the

parties in an industrial concern and the same was the contention of the party. Therefore, in the

present case, when the parties settled the dispute, it should be respected and there is no

necessity of the publication of award of tribunal since it might hamper the settlement.

The Supreme Court while applying the Doctrine of Harmonious Construction, set an example

of preserving the objects of both the provisions of the Act without defeating the purpose of

the Act of maintain peace between the parties. In my opinion, the application of Doctrine of

Harmonious Construction in this matter was the best to ensure the conflict was resolved and

the purpose of the Act i.e., to maintain peace between the parties, too was not destroyed.
 Further, to held Section 17 of the Act as mandatory provision was correct interpretation and

while reading it along with Section 18 of the Act, restricted its effect in exceptional

circumstances of this case. As the publication of award of tribunal was not to resolve the

dispute but only to check its application. As in this case, the parties themselves came to

settlement and hence, no publication was required to check the application of award of

Tribunal since the award stood cancelled and hence, the publication would have no value.

The Court set one of the finest precedent for further cases of same nature and without

rendering any provision ineffective and taking into account various contingent situations.

8. CALCUTTA GAS COMPANY PVT. LIMITED V STATE OF WEST BENGAL

The Legislative Assembly of WB passed the Oriental Gas Company Act in 1960. The

respondent sought to take over the management of the Gas Company under this Act. The

appellant challenged the validity of this act by holding that the state Legislative Assembly

had no power to pass such an under Entries 24 and 25 of the State List because the Parliament

had already enacted the Industries (Development and Regulation) Act, 1951 under Entry 52

of the Central List dealing with industries. It was observed by the Supreme Court that there

are so many subjects in three lists in the Constitution that there is bound to be some

overlapping and it is the duty of the courts in such situation is to yet to harmonise them, if

possible, so the effect can be given to each of them. Entry 24 of the State List covers entire

Industries in the State. Entry 25 is only limited to the Gas industry. Therefore Entry 24 covers

every industry barring the Gas Industries because it has been specifically covered under Entry

25. Corresponding to Entry 24 of the State List, there is Entry 52 in the Union List.

Therefore, by harmonious construction it became clear that gas industry was exclusively

covered by Entry 25 of the State List over which the state has full control. Therefore, the state

was fully competent to make laws in this regard.

MISCHIEF RULE