Author Name:   rajat.agarwal

This Article focuses on the most controversial rule of interpretation – the doctrine of purposive construction. Whether this rule can be universally applied? How far a court can go in interpreting a statute? Whether they can correctly go behind the motives of the drafters of legislation?

Words are like eyeglasses, they blur everything, which they do not make more clear – Joseph Joubert

The purposive approach sometimes referred to as purposive construction, purposive interpretation, or the "modern principle in construction" is an approach to statutory and constitutional interpretation under which common law courts interpret an enactment (that is, a statute, a part of a statute, or a clause of a constitution) in light of the purpose for which it was enacted.

The historical source of purposive interpretation is the mischief rule established in Heydon's Case. Purposive interpretation was introduced as a form of replacement for the mischief rule, the plain meaning rule and the golden rule to determine cases. Purposive interpretation is exercised when the courts utilize extraneous materials from the pre-enactment phase of legislation, including early drafts, committee reports, etc. The purposive interpretation involves a rejection of the exclusionary rule.

Critics of purposivism argue it fails to recognize the separation of powers between the legislator and the judiciary. The legislator is responsible for the creating the law, while the judiciary is responsible for interpreting law. As purposive interpretation goes beyond the words within the statute, considerable power is bestowed upon the judges as they look to extraneous materials for aid in interpreting the law.

Aids To Interpretation
Generally, prima facie must be given as a general rule of statutory interpretation. If the words are clear and free from ambiguity there is no need to refer to other means of interpretation. However, if the words in the statute are vague and ambiguous, then internal aid may be consulted for interpretation. This means the statute should be read in whole, what is not clear in one section may be explained in another section.

Internal aids include the following:
· Context
· Title
° Long Title
° Short Title
· Preamble
· Headings
· Proviso
· Definition/interpretation Clause
· Conjunctive and Disjunctive Words
· Punctuation

External aids include the following:
· Historical Settings
· Objects and Reason
· Text Books and Dictionaries
· International Convention
· Government Publications
· Bill
· Committee Report
· Debate and Proceedings of the Legislature
· State of Things at the Time of the Passing of the Bill
· History of Legislation
· Extemporaneous Exposition
· Judicial Interpretation of Words

Principles Of Interpretation - Purposive Approach
In Halsbury's Laws of England, Volume 44(1), fourth reissue, para 1474, pp 906-07, it is stated:

"Parliament intends that an 'enactment shall remedy a particular mischief and it is therefore presumed that Parliament intends that the court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment corresponds to its legal meaning, should find a construction which applies the remedy provided by it in such a way as to suppress that mischief. The doctrine originates in Heydon's case where the Barons of the Exchequer resolved that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered:

1. what was the common law before the making of the Act;

2. what was the mischief and defect for which the common law did not provide;

3. what remedy Parliament has resolved and appointed to cure the disease of the commonwealth; and

4. the true reason of the remedy, end then the office of all the judges is always to make such construction as shall

a. suppress the mischief and advance the remedy; and

b. suppress subtle inventions and evasions for the continuance of the mischief pro private- commode (for private benefit); and

c. add force and life to the cure and remedy according to the true intent of the makers of the Act pro publico (for the public good)."

The principles of statutory interpretation are well settled. Where the words of the statute are clear and unambiguous, the provision should be given its plain and normal meaning, without adding or rejecting any words. Departure from the literal rule, by making structural changes or substituting words in a clear statutory provision, under the guise of interpretation will pose a great risk as the changes may not be what the Legislature intended or desired. Legislative wisdom cannot be replaced by the Judge's views. As observed by the Supreme Court in somewhat different context: "When a procedure is prescribed by the Legislature, it is not for the court to substitute a different one according to its notion of justice. When the Legislature has spoken, the Judges cannot afford to be wiser." There is however an exception to this general rule. Where the words used in the statutory provision are vague and ambiguous or where the plain and normal meaning of its words or grammatical construction thereof would lead to confusion, absurdity, repugnancy with other provisions, the courts may, instead of adopting the plain and grammatical construction, use the interpretative tools to set right the situation, by adding or omitting or substituting the words in the Statute. When faced with an apparently defective provision in a statute, courts prefer to assume that the draftsman had committed a mistake rather than concluding that the Legislature has deliberately introduced an absurd or irrational statutory provision. Departure from the literal rule of plain and straight reading can however be only in exceptional cases, where the anomalies make the literal compliance of a provision impossible, or absurd or so impractical as to defeat the very object of the provision. It may also be mentio

Maxwell on Interpretation of Statutes (12th Edn., page 228), under the caption 'modification of the language to meet the intention' in the chapter dealing with 'Exceptional Construction' states the position succinctly:

Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used.

Indian Approach
Supreme Court in Tirath Singh v. Bachittar Singh approved and adopted the said approach. In Shamrao V. Parulekar v. District Magistrate, Thana, Bombay the Court reiterated the principle from Maxwell:

“if one construction will lead to an absurdity while another will give effect to what commonsense would show was obviously intended, the construction which would defeat the ends of the Act must be rejected even if the same words used in the same section, and even the same sentence, have to be construed differently. Indeed, the law goes so far as to require the Courts sometimes even to modify the grammatical and ordinary sense of the words if by doing so absurdity and inconsistency can be avoided.”

In Molar Mal v. Kay Iron Works (P) Ltd. Court while reiterating that courts will have to follow the rule of literal construction, which enjoins the court to take the words as used by the Legislature and to give it the meaning which naturally implies, held that there is an exception to that rule. This Court observed:

“That exception comes into play when application of literal construction of the words in the statute leads to absurdity, inconsistency or when it is shown that the legal context in which the words are used or by reading the statute as a whole, it requires a different meaning.”

In Mangin v. Inland Revenue Commission the Privy Council held:

The object of the construction of a statute, be it to ascertain the will of the legislature, it may be presumed that neither injustice nor absurdity was intended. If, therefore a literal interpretation would produce such a result, and the language admits of an interpretation which would avoid it, then such an interpretation may be adopted.

A classic example of correcting an error committed by the draftsman in legislative drafting is the substitution of the words 'defendant's witnesses' by this Court for the words 'plaintiff's witnesses' occurring in Order VII Rule 14(4) of the Code, in Salem Bar-II:

Order VII relates to the production of documents by the plaintiff whereas Order VIII relates to production of documents by the defendant. Under Order VIII Rule 1A(4) a document not produced by defendant can be confronted to the plaintiff's witness during cross-examination. Similarly, the plaintiff can also confront the defendant's witness with a document during cross-examination. By mistake, instead of 'defendant's witnesses', the words 'plaintiff's witnesses' have been mentioned in Order VII Rule (4). To avoid any confusion, it was directed that till the legislature corrects the mistake, the words 'plaintiff's witnesses, would be read as 'defendant's witnesses' in Order VII Rule 4.

Justice G.P. Singh extracts four conditions that should be present to justify departure from the plain words of the Statute, in his treatise "Principles of Statutory Interpretation" (12th Edn. - 2010, Lexis Nexis - page 144) from the decision of the House of Lords in Stock v. Frank Jones (Tipton) Ltd.:

“...a court would only be justified in departing from the plain words of the statute when it is satisfied that (1) there is clear and gross balance of anomaly; (2) Parliament, the legislative promoters and the draftsman could not have envisaged such anomaly and could not have been prepared to accept it in the interest of a supervening legislative objective; (3) the anomaly can be obviated without detriment to such a legislative objective; and (4) the language of the statute is susceptible of the modification required to obviate the anomaly.”

It is now well-settled that for the purpose of interpretation of statute the same has to be in its entirety. Furthermore, in a case of this nature, principles of purposive construction must come into play. In Chief Justice of A.P. v. L.V.A. Dikshitulu , the Court observed:

"The primary principle of interpretation is that a Constitutional or statutory provision should be construed "according to the intent of they that made it" (Coke). Normally, such intent is gathered from the language of the provision. If the language, or the phraseology employed by the legislation is precise and plain and thus by itself proclaims the legislative intent in unequivocal terms, the same must be given effect to, regardless of the consequences that may follow. But if the words used in the provision are imprecise, protean or evocative or can reasonably bear meanings more than one, the rule of strict grammatical construction ceases to be a sure guide to reach at the real legislative intent. In such a case, in order to ascertain the true meaning of the terms and phrases employed, it is legitimate for the Court to go beyond the arid literal confines of the provision and to call in aid other well-recognised rules of construction, such as its legislative history, the basic scheme and framework of the statute as a whole, each portion throwing light, on the rest, the purpose of the legislation, the object sought to be achieved, and the consequences that may flow from the adoption of one in preference to the other possible interpretation.

In Kehar Singh v. State (Delhi Admn.) Court held:
"...But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of the legislature rational meaning. We then examine every word, every section and every provision. We examine the Act as a whole. We examine the necessity which gave rise to the Act. We look at the mischiefs which the legislature intended to redress. We look at the whole situation and not just one-to-one relation. We will not consider any provision out of the framework of the statute. We will not view the provisions as abstract principles separated from the motive force, behind. We will consider the provisions in the circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences."

In District Mining Officer v. Tata Iron & Steel Co , Supreme Court stated:
"The legislation is primarily directed to the problems before the legislature based on information derived from past and present experience. It may also be designed by us a of general words to cover similar problems arising in future. But, from the very nature of things, it is impossible to anticipate fully in the Varied situations arising in future in which the application of the legislation in hand may be called for and words chosen to communicate such indefinite referents are bound to be in many cases, lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words, the legislative intention i.e. the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed."

It is well known that an interpretation of the statute which harmonizes with its avowed object is always to be accepted than the one which dilutes it.

International Approach
The problem of statutory interpretation has been a matter of considerable judicial debate in almost all common law jurisdictions. Felix Frankfurter dealt with this problem rather comprehensively in his Sixth Annual Benjamin N. Cardozo Lecture. The learned Judge opined:

“Anything that is written may present a problem of meaning, and that is the essence of the business of judges in construing legislation. The problem derives from the very nature of words. They are symbols of meaning.”

About what the words connote, there is a very illuminating discussion by Friedrich Bodmer, a Swiss Philologist in his treaties "The Loom of Language". Bodmer, who was a Professor in the Massachusetts Institute of Technology, said:

“Words are not passive agents meaning the same thing and carrying the same value at all times and in all contexts. They do not come in standard shapes and sizes like coins from the mint, nor do they go forth with a degree to all the world that they shall mean only so much, no more and no less. Through its own particular personality each word has a penumbra of meaning which no draftsman can entirely cut away. It refuses to be used as a mathematical symbol.”

The aforesaid formulation by Professor Bodmer was cited with approval by the Constitution Bench of Supreme Court of India in S.C. Advocates-on-Record Association & Ors., v. Union of India. Justice Holmes in Towne v. Eisnerthought in the same way by saying:

"a word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used.”

Therefore, about the problem of interpretation we may again go back to what Justice Frankfurter said in the aforesaid article. This is of considerable importance. The learned Judge said:

“...The process of construction, therefore, is not an exercise in logic or dialetic: The aids of formal reasoning are not irrelevant; they may simply be inadequate. The purpose of construction being the ascertainment of meaning, every consideration brought to bear for the solution of that problem must be devoted to that end alone...”

Lord Greene, Master of Rolls, also gave the same direction in Re, Bidie (deceased). In the words of Master of Rolls the technique should be - to read the statue as a whole and ask oneself the question: 'In this state, in this context, relating to this subject - matter, what is the true meaning of that word'.

About the development of purposive approach, Bennion on Statutory Interpretation (Fifth Edition) has traced its origin:

General judicial adoption of the term 'purposive construction' is recent, but the concept is not new. Viscount Dilhorne, citing Coke, said that while it is now fashionable to talk of a purposive construction of a statute the need for such a construction has been recognised since the seventeenth century. In fact the recognition goes considerably further back than that.

In this connection, the opinion of Lord Diplock in Jones v. Wrotham Park Settled Estates is very pertinent, the learned Law Lord said:

“I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressly included in it.”

In coming to the aforesaid conclusion the learned Judges relied on the famous dictum of Lord Denning in Seaford Court Estates Ltd. v. Asher - wherein the learned Judge stated the position thus:

“...A Judge should ask himself the question how, if the makers of the Act had themselves come across this rock in the texture of it, they would have straightened it out? He must then do so as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.”

In Francis Bennion's Statutory Interpretation, purposive construction has been described in the following manner:

A purposive construction of an enactment is one which gives effect to the legislative purpose by-

(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or

(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and- strained construction).

In 'The Interpretation and Application of Statutes', Reed Dickerson, discussed the subject while dealing with the importance of context of the statute in the following terms:

... The essence of the language is to reflect, express, and perhaps even affect the conceptual matrix of established ideas and values that identifies the culture to which it belongs. For this reason, language has been called "conceptual map of human experience.

In Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court, Chandigarh , Supreme Court of India referred to the following passage from Hans Kelsen's Pure Theory Law of Law:

“The legal act applying a legal norm may be performed in such a way that it conforms (a) with the one or the other of the different meanings of the legal norm, (b) with the will of the norm- creating authority that is to be determined somehow, (c) with the expression which the norm- creating authority has chosen, (d) with the one or the other of the contradictory norms, or (e) the concrete case to which the two contradictory norms refer may be decided under the assumption that the two contradictory norms annul each other. In all these cases, the law to be applied constitutes only a frame within which several applications are possible, whereby every act is legal that stays within the frame.”

Scope of Judicial review vis-à-vis Legislative Policy
A policy decision, as is well known, should not be lightly interfered with but it is difficult to accept the submissions made on behalf of the learned Cousel appearing on behalf of the Appellants that the courts cannot exercise their power of judicial review at all. By reason of any legislation whether enacted by the legislature or by way of subordinate legislation, the State gives effect to its legislative policy. Such legislation, however, must not be ultra vires the Constitution. A subordinate legislation apart from being intra vires the Constitution, should not also be ultra vires the parent Act under which it has been made. A subordinate legislation, it is trite, must be reasonable and in consonance with the legislative policy as also give effect to the purport and object of the Act and in good faith.

In P.J. Irani v. The State of Madras, Supreme Court has clearly held that a subordinate legislation can be challenged not only on the ground that it is contrary to the provisions of the Act or other statutes; but also if it is violative of the legislative object. The provisions of the subordinate legislation can also be challenged if the reasons assigned therefore are not germane or otherwise mala fide. The said decision has been followed in a large number of cases by this Court. It is interesting to note that in Secretary, Ministry of Chemicals & Fertilizers, Government of India v. Cipla Ltd. and Ors,this Court opined:

“It is axiomatic that the contents of a policy document cannot be read and interpreted as statutory provisions. Too much of legalism cannot be imported in understanding the scope and meaning of the clauses contained in policy formulations. At the same time, the Central Government which combines the dual role of policy-maker and the delegate of legislative power, cannot at its sweet will and pleasure give a go-by to the policy guidelines evolved by itself in the matter of selection of drugs for price control. The Government itself stressed on the need to evolve and adopt transparent criteria to be applied across the board so as to minimize the scope for subjective approach and therefore came forward with specific criteria. It is nobody's case that for any good reasons, the policy or norms have been changed or have become impracticable of compliance.”
[Emphasis supplied]

The parameters of judicial review in relation to a policy decision would depend upon the nature as also the scope and object of the legislation. No hard and fast rule can be laid down therefore. The court normally would not, however, interfere with a policy decision which has been made by experts in view of the fact that it does not possess such expertise. Divergent opinions, however, have been expressed by the authorities in this behalf. The scope and extent of judicial review of legislation, it is trite, would vary from case to case.

Conclusion
We have experienced significant changes over the interpretation of statutes. This change from literal to purposive approaches has had significant effect on our legal system. So much so that the powers of the legislative and judicial arms are beginning to converge. Parliament has enacted laws telling the judicial branch how they must interpret legislation, and the judicial arm can read words into legislation to promote what they believe is the apparent purpose of the legislature, when, in fact, unrestrained by obedience to the specific words of the statute, they could be promoting their own policy agenda. In relation to statutory interpretation and the purposive approach, ‘what is at stake is the separation of powers and respect by the judicial branch of government for the powers of the legislative branch.’ It is clear that although the purposive approach may result in some benefits, its application brings with it significant difficulties and problems.
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# (1584) 76 ER 637
# Shri Mandir Sita Ramji v. Lt. Governor of Delhi, (1975) 4 SCC 298
# AIR 1955 SC 830
# AIR 1952 SC 324
# 2004 (4) SCC 285
# 1971 (1) All. ER 179
# 1978 (1) All ER 948
# Afcons Infrastructure Ltd. and Anr. v. Cherian Varkey Construction Co. (P) Ltd. and Ors., 2010 (7) SCALE 293
# (1979) 1 SCR 26
# 1989 CriLJ 1
# (2001) 7 SCC 358
# 1993 (4) SCC 441
# 245 US 418
# (1948) 2 All ER 995
# (1980) AC 74
# (1949) 2 All E.R. 155 (CA)
# (1990) IILLJ 70 SC
# (1962) 2 SCR 169
# AIR 2003 SC 3078

The  author can be reached at: rajat.agarwal@legalserviceindia.com

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