parliamentary history in interpreting statutes

8/10/2019 Parliamentary History in Interpreting Statutes

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THE ROLE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN

THE INTERPRETATION OF INDIAN STATUTES

Interpretation of Statutes Page 1

Table of Contents

INTRODUCTION ....................................................................................................................................... 2

UNDERSTANDING PARLIAMENTARY AND LEGISLATIVE HISTORY ........................................................... 3

IS LEGISLATIVE HISTORY BINDING? ......................................................................................................... 3

LEGISLATIVE HISTORY AND LEGISLATIVE INTENTION ............................................................................. 4

REASONS FOR THE COURT'S USAGE OF LEGISLATIVE HISTORY .............................................................. 4

THE USE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN THE INTERPRETATION OF INDIAN

STATUTES: WITH REFERENCE TO CASE LAWS ......................................................................................... 5

REFERENCE TO PROCEEDING OF LEGISLATURE WHILE DISCUSSING THE CASE LAWS ....................... 5

CONCLUSION ......................................................................................................................................... 11

BIBLIOGRAPHY ...................................................................................................................................... 12


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INTRODUCTION

Interpretation is as ancient as language. Highly structured rules of interpretation were developed

at a very primitive stage of the Hindu civilization. Interpretation is a knack of finding out the objectof an enactment by construing the words in their natural and ordinary meaning. The Court is not

supposed to interpret arbitrarily and thus certain basic principles have been evolved. These

principles are described as rules of interpretation. Its object is to ascertain the intention of the

legislature communicated expressly or impliedly in the language used. As stated by Salmond,

"By interpretation or construction is meant, the process by which the courts seek to ascertain the

meaning of the legislature through the medium of authoritative forms in which it is expressed."

When the words in a statute are unclear, it is the task of the court to interpret it by referring to

internal as well as external aids. Apart from the intrinsic aids such as preamble and the purview of

the act, the court considers resources beyond the act, called extrinsic aids. They mainly deal with the

history of the act.

But this historical setting is not used as an aid if the wording is clear. If there is some ambiguity

wording of the statute, the historical setting may be taken into account in order to achieve the

proper construction. Historical setting includes parliamentary history, historical facts, statement of

objects and reasons, report of expert committees and so on.


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UNDERSTANDING PARLIAMENTARY AND LEGISLATIVE HISTORY

Parliamentary history stands for the procedure by which an act is enacted. This contains conception

of an idea, drafting of the bill, the debates, the amendments etc. Speech made during over of thebill, amendments contemplated during the progress of the bill are considered in parliamentary

history while the papers sited before the cabinet which pronounced for the introduction of the bill

are not germane since these papers are not cited before the parliament.

Legislative history means -

(i) The legislative antecedents of the statutory provision under consideration, i.e.

corresponding provisions in previous enactment since repealed and re-enacted with or without

modification.

(ii) Pre-parliamentary materials relating to the provision or the statue in which it is contained

e.g. reports of committees and commission

(iii) Parliamentary materials

IS LEGISLATIVE HISTORY BINDING?

This notion is completely rejected. On contrary, there seems to be broad consent that legislative

history is just a tool with acts as a "guiding function" for the courts. Variation of opinion arises

regarding the relative weight to be provided to the historical interpretative method in relation to

other methods. Advocates of legal discourse theory suggest a ranking that usually places arguments

based on legislative intent higher than others." Furthermore, increasing number of scholars are of

the view that while a categorical duty of the courts to stick to legislative history might not exist, an

obligation to refer the materials does1.

1Kenneth R. Dortzbach, Legislative History: The Philosophies of Justices Scalia and Breyer and the Use of

Legislative History, http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1486&context=mulr


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LEGISLATIVE HISTORY AND LEGISLATIVE INTENTION

It is important to differentiate between legislative history and legislative intent.

According to Black's Law Dictionary legislative intent2means "the design or plan that the legislature

had at the time of enacting a statute."

It does not essentially reveal the meaning of each word; however it does offer courts with a ways of

selecting between competing interpretations. Few schools of legislative interpretation offer that the

court's obligation is to determine and uphold the intention of the legislature; while some should the

existence of a collective intention and the necessity to determine such, even if it does exist. For

those in the former school, it is one mode to discern legislative intent.

According to Black's Law Dictionary legislative history3means

"The back ground and events leading to the enactment of a statute, including hearings committee

reports, and floor debates."6

In the beginning of the definition- "the background and events" is in fact broader than the general

perception of legislative history and, if it were not restricted by the remainder of the definition,

would appear to cover more than the documents drafted during the legislative process. It includes

the "documents legislatures generate in the course of enacting statutes.

REASONS FOR THE COURT'S USAGE OF LEGISLATIVE HISTORY

Many scholars have tried to understand the motive of judges for citing legislative history. The usage

of legislative history is motivated by a combination of legal and ideological considerations.

Usually, the legal variables have a considerably greater impact on the possibility of legislative history

use than the ideological variables, but the influence of the ideological variables cannot be denied.

The intricacy of a statute amplifies the likelihood of legislative history usage, while routinely

amended statutes are less prone to obtain such treatment.

2Black's Law Dictionary, at 919.

3Black's Law Dictionary, at 919.


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The age of the statute is also relevant, but its outcome is neither linear nor monotonic: extremely

new and old statutes are less likely to extract legislative history usage than statutes of intermediate

age. The facts also recommend that the usage of legislative history by one justice induces other

justices to respond in the similar kind.

With regard to the effect of ideological factors, liberal justices are usually more likely than

conservative justices to use legislative history. Consequently, the rightward shift in the ideological

composition of the Court has greatly corresponded with a falloff in the overall usage of legislative

history since the mid-1980s.

THE USE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN THE

INTERPRETATION OF INDIAN STATUTES: WITH REFERENCE TO CASE

LAWS

The parliamentary history may be referred for ascertaining the intention, but not for construction, is

pedantic. In fact all such material out freely to be referred to and it is only by resort to such material

that the object of the legislation and how the legislature intended to achieve that object by the

particular statute can be correctly ascertained by the court11

. The reliance which is placed on

legislative history by the courts in determining an issue can be seen in many case laws.

REFERENCE TO PROCEEDING OF LEGISLATURE WHILE DISCUSSING THE

CASE LAWS

InAdministrator-General of Bengal v. Premlal Mullick4, the question was whether a Hindu executor

was a private executor within the meaning of Section 31 Administrator Generals Act, 1874. The

Privy Council held reversing the High Court, that he was a private executor within the meaning of

Section 31 of the Act. Their Lordships observed:

The two learned Judges, who constituted the majority in the appellate court, although they do not

base their judgement upon them, refer to the proceedings of the legislature which resulted in the

passing of the Act of 1874 as legitimate age to the construction of Section 31. Their Lordships think it

4ILR (1895) 22 Cal 788


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right to express their dissent from that proposition. The same reasons which exclude these

considerations when the clauses of an Act of the British Legislature are under construction are

equally cogent in the case of an Indian statute.

InA. Thangla Kunju Musaliar v. M. Venkatachalarn Patti5, the questions were whether Section 5(1)

of the Travancore Taxation on Income (Investigation Commission) Act, 1124 (ME) was discriminatory

and whether the Commission had authority to investigate any case suo moto.It was observed:

The question at once arises as to why it was that the legislative authority took the view that there

were possible cases of tax evasion. It has been said that although the statement of the objects and

reasons appended to a bill is not admissible as an aid to the construction of the Act as passed, yet, it

may be referred to only for the limited purpose of ascertaining the conditions prevailing at the time

which necessitated the making of the law.

In S C. Prashar v. Vasantsen Dwarkadas6, S.K. Das, J. observed: The statement of objects and moons

for introducing a particular piece of legislation cannot be used for interpreting the legislation if the

words used therein are clear enough. But the statement can be referred to for the purposes

ascertaining the circumstances which led to the legislation in order to find out what was the mischief

which the legislation aimed at.

And Kapur, J. observed:

In construing an enactment and determining its true scope it is permissible to have regard to all such

factors as can legitimately be taken into account to ascertain the intention of the legislature such as

the history of the Act, the reason which led to its being passed, the mischief which had to be cured as

well as Site cure as also the other provisions of the statute. This is the rule in Heydon case".

Taking this principle into account it appears that the object of the amendment was to validate

certain notices after the 1959 amendment and after the lapse of eight years from the end of the

assessment year and also to nullify the effect of the Calcutta judgment in Debi Dutta Moody case.

In Balchand Jain v. State of M.P7. for holding that an order for anticipatory bail could be issued

5

AIR 1956 SC 2466AIR 1963 SC 1356

7(1976) 4 SCC 572


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under Section 438, Criminal Procedure Code, 1973, to a person apprehending arrest under Rule 184

of the Defence and Internal Security of India Rules, 1971, the Court relied on the legislative history of

the provision and on the recommendations of the Law Commission and observations in the Law

Commission Report.

In Emperor v. Benoari Lal Sarma819

, Rownand, J. observed:

Sen, J. ,has said in his judgement that it is not open to us to take into account historical facts or any

extraneous evidence either as to whether an emergency existed or whether the Governor General

had judged an emergency to have arisen.

But according to Lord Halsbury in Powell v. Kempton Park Racecourse Co., such topics as the history

of legislation and the facts which give rise to the enactment may usefully be employed to interpret

the meaning of the statute, though they do not afford conclusive argument.

In State of Travancore-Cochin v. Bombay Co. Ltd9, the respondents claimed exemption from sales

tax on the ground that their commodities to foreign buyers in CIF or FOB contracts were sales "in the

course of export of the goods out of the territory of India within the meaning of Article 2860)(b) ofthe Constitution. The High Court held in favour of the respondents. The Supreme Court confirmed

the Judgment, but observed:

The use made by the learned Judges below of the speeches made by the members of the Constituent

Assembly in the course of the debates on the Draft Constitution is unwarranted. That this form of

extrinsic aid to the interpretation of statutes is not admissible has been generally accepted in

England, and the same rule has been observed in the construction of Indian statutes. The reason

behind the rule was explained by one of us inA.K. Gopalan v. State of Madras10

.; thus:

'A speech made in the course of the debate on a Bill would at best be indicative of the subjective

intent of the speak, but it could not reflect the inarticulate mental process lying behind the majority

vote which carried the Bill. Nor is it reasonable to assume that the minds of all the legislators were in

accord.

8

AIR 1943 FC 369AIR 1952 SC 366

10AIR 1950 SC 27


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It is more tersely put in United States v. Trans-Missouri Freight Assn11

:

'Those who did not speak may not have agreed with those who did; and those who spoke might differ

from each other.'

The rule of exclusion has not always been adhered to in America, and sometimes distinction is made

between using such material to ascertain the purpose of a statute and using it for ascertaining its

meaning. It would seem that the rule is adopted in Canada and Australia.

In State of Bihar v. Khas Karanpura Collieries Ltd12

, while holding that Section 30-A was inserted

retrospectively by Act 15 of 1958 in the Mines and Minerals (Regulation and Development) Act, 1957

and that it gave temporary immunity front the applicability of Sections 9(0 and 16(1) of the Act to

statutory mining leases until the Central Government by notification made the provisions applicable

with or without modification to such leases, the Court observed:

There can be no room for doubt that the legislature intended that Section 30-A of the 1957 Act

should cover the aforesaid statutory leases as well. It will be apposite in this connection to refer to

the statement of objects and reasons given in the Bill which sought to introduce Section 30-A in the

1957 Act with retrospective effect which can be usefully resorted to for ascertaining the true scope of

the section and the extent of the protection afforded by it.

The Explanatory Memorandum attached to the Rules, is in the nature of Statement of Objects and

Reasons, and may be referred to P.S. Mahal v. Union of India13

:

The aids which Parliament availed of such as the report of a special committee preceding the

enactment, existing state of the law, the environment necessitating the enactment of the legislation,

and the object sought to be achieved, are useful for deciphering the real intention of the Parliament

and therefore cannot be denied to the court.

11

169 US 290 (1897)12(1976) 4 SCC 134

13(1984) 4 SCC 545


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Therefore, reports of the committee which preceded the enactment of legislation, reports of joint

parliamentary committees, report of a commission set up for collecting information leading to the

enactment are permissible external aids to construction."

Report of joint Select Committee on Bill to amend the Act was referred to see the object and

purpose.

In Narain Khamman V. Parduman Kumar Jain14

.,it was held that:

Though the Statement of Objects and Reasons accompanying a legislative Bill cannot be used to

determine the true meaning and effect of the substantive provisions of a statute, it is permissible to

refer to the Statement of Objects and Reasons accompanying a Bill for the purpose of understanding

the background, the antecedent state of affairs, the surrounding circumstances in relation to the

statute, and the evil which the statute sought to remedy.

In Bachan Singh v. State of Punjab15

, it was observed that constitutional law raises, in a legal

context,problems of economic, social, moral and political theory and practice to which non-lawyershave much to contribute. When judges are confronted by issues to which there is no legal answer,

there is no reason (other than a desire to maintain a fiction that the law provides the answer) for

judicial discretion to be exercised in a vacuum, immune from non-legal learning and extra-legal

dispute. The judges must also consider while deciding an issue of constitutional adjudication as to

what would be the moral, social and economic consequences of a decision either way.

In Special Reference No. z of 2002, Re, (Gujarat Assembly Election matter16)

the debates in the

Constituent Assembly on Articles 85 and 174 was looked into. Khare, J. (as the learned Chief Justice

then was) referred to Kesavananda Bharti17

cases in support of the proposition that the Constituent

Assembly Debates are permissible aids in construction to ascertain the intention of the Constitution.

The learned Judge observed as follows. One of the known methods to discern the intention behind

enacting a provision of the Constitution and also to interpret the same is to look into the historical

14(1985) 1 SCC 1

15

(1980) 2 SCC 68416(2002) 8 SCC 237

17(1973) 4 SCC 225


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legislative developments, Constituent Assembly al provision.

In Kesavananda Bharti v. State of Kerala, it was held that Constituent Assembly Debates although

not conclusive, yet show the intention of the framers of the Constitution enacting provisions of the

Constitution and the Constituent Assembly Debates can throw light in ascertaining the intention

behind such provisions. Reference to Constituent Assembly Debates in interpreting a Constitutional

provision: In Kesavananda Bharti v. State of Kerala, H.R. Khanna, J. observed that the speeches in the

Constituent Assembly can be referred to for ascertaining the history of the constitutional provision.

InFagu Shaw v. State of W.B18

Bhagwati, J. observed: It was at one time thought that the speeches

made by the members of the Constituent Assembly in the course of the debates on the Draft

Constitution were wholly inadmissible as extraneous aids to the interpretation of a constitutional

provision, but of late there has been a shift in this position and following the recent trends in juristic

thought in some of the Western Countries and the United State, the rule of exclusion rigidly

followed in Anglo-American jurisprudence has been considerably diluted.

In Ashoka Kumar Thakur v. Union of India19

, while justifying the separate treatment given to

minority institutions on the basis of constitutional provision the Court observed that it is a settledposition that in statutory interpretation external aids have only a limited use.

18

1974) 4 SCC 15219(2008) 6 SCC 1


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CONCLUSION

The conception that the legislative history must be sternly adhered to barely has any advocates nowa days. It is just a tool and "aid" or "guide" as stated in Pepper v. Hart

20 -To better understand

ambiguous provisions.

Now the discussion has thus swung towards ascertaining the significance given to it. There exist no

universal rules on the interpretation of legislative. It is, though, a worthwhile duty for legal

academics to examine the possibilities and confines of a hierarchical order of different legislative

materials, ranging from preparatory reports by expert panels to commentary by the Ministry.

Besides, judges and legal scholars should observe the detail process of how statutes are made in

order to be in a better position to consider their value21

.

So far as the Indian judiciary is concerned they have tried to clear the position of these external

sources by way of verdicts.

20[1993] AC 593

21

35

Holger Fleischer, Comparative approaches to the use of Legislative History in Statutory Interpretation, 60am. J. Comp. L. 401 2012


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BIBLIOGRAPHY

Statutes Referred

Constitution of India, 1949

Criminal Procedure Code, 1973

Articles Referred

Fleischer, Holger, Comparative Approaches to the Use of Legislative History in StatutoryInterpretation,http://ssrn.com/abstract=1920184

Kenneth R. Dortzbach, Legislative History: The Philosophies of Justices Scalia and Breyer andthe Use of Legislative History,http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1486&context=mulr

http://ijtr.nic.in/articles/art21.pdf

http://www.lawyersclubindia.com/articles/Interpretation-of-Statute5430.aUwTmSwSN

http://www.nhs.vic.edu.au/library/legaldate/LegalDate_Vol_19_No_2_May_2007.pdf

http://caaa.in/Image/Interpretation%20of%20Statutes.pdf
http://ssrn.com/abstract=1920184http://ssrn.com/abstract=1920184http://ssrn.com/abstract=1920184http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1486&context=mulrhttp://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1486&context=mulrhttp://caaa.in/Image/Interpretation%20of%20Statutes.pdfhttp://caaa.in/Image/Interpretation%20of%20Statutes.pdfhttp://caaa.in/Image/Interpretation%20of%20Statutes.pdfhttp://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1486&context=mulrhttp://ssrn.com/abstract=1920184

parliamentary history in interpreting statutes

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