Reply To: Despite RAW objections SC Collegium recommended a gay advocate to be appointed as Delhi High Court Judge (18/01/2023)

Checkout Forums God or Government Despite RAW objections SC Collegium recommended a gay advocate to be appointed as Delhi High Court Judge (18/01/2023) Reply To: Despite RAW objections SC Collegium recommended a gay advocate to be appointed as Delhi High Court Judge (18/01/2023)

#122018
advtanmoy
Keymaster

Principles of purposive construction

In High Court of Gujarat and Another v. Gujarat Kishan Mazdoor Panchayat and Others [ (2003) 4 SCC 712 ], this Court noticed:

“33. In United Bank of India v. Abhijit Tea Co. (P) Ltd. this Court noticed: (SCC p. 366, paras 25-26)  “25. In regard to purposive interpretation, Justice Frankfurter observed as follows:

`Legislation has an aim, it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of Government. That aim, that policy is not drawn, like nitrogen, out of the air; it is evidenced in the language of the statute, as read in the light of other external manifestations of purpose [Some Reflections on the Reading of Statutes, 47 Columbia LR 527, at p. 538 (1947)].’ xxx xxx xxx

38. In The Interpretation and Application of Statutes by Reed Dickerson, the author at p. 135 has 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 New India Assurance Company Ltd. v. Nusli Neville Wadia and Another [(2008) 3 SCC 279], this Court held:

“52. Barak in his exhaustive work on “Purposive Construction” explains various meanings attributed to the term “purpose”. It would be in the fitness of discussion to refer to Purposive Construction in Barak’s words:

“Hart and Sachs also appear to treat purpose' as a subjective concept. I sayappear’ because, although Hart and Sachs claim that the interpreter should imagine himself or herself in the legislator’s shoes, they introduce two elements of objectivity: First, the interpreter should assume that the legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner; and second, the interpreter should accept the non-rebuttable presumption that members of the legislative body sought to fulfil their constitutional duties in good faith. This formulation allows the interpreter to inquire not into the subjective intent of the author, but rather the intent the author would have had, had he or she acted reasonably.”

(Aharon Barak, Purposive Interpretation in Law, (2007) at p.87.)”

In Union of India v. Ranbaxy Laboratories Limited and Others [(2008) 7 SCC 502], this Court held that the principles of purposive construction may be employed for making an exemption notification a workable one.

We may notice that in Regina v. Secretary of State for Health ex parate Quintavalle [2003] UKHL 13], the House of Lords stated the law as under:

”8. The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.

 *** The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas: see, however, a classic early statement of the purposive approach by Lord Blackburn in River Wear Commissioners v Adamson (1877) 2 App Cas 743, 763. In any event, nowadays the shift towards purposive interpretation is not in doubt.”

Yet again, the Australian High Court in Australian Finance Direct Limited v. Director of Consumer Affairs Victoria [2007] HCA 57], held :

“40. This explanation of the approach to be taken to a problem of construction has been cited, restated and applied in this Court so many times that it should be uncontroversial. Some judges have not been sympathetic to the purposive approach[39]. Some have clearly yearned for a return to the perceived simplicities of literalism, either generally or in particular fields of law. On the whole, however, this Court has adhered to the doctrinal shift with a fair degree of consistency. In my view, there is a need for such consistency. We should avoid opportunistic reversions to the old approach of literalism which the legal mind sometimes finds congenial.

41. Obviously, a balance must be struck between, on the one hand, an exclusive focus on the text of legislation and, on the other, reference to extrinsic information that assists to explain its purpose. Those bound by the law will often have no access to such information. Cases do arise where the legal prescription is relatively clear on the face of the written law. To the extent that external inquiries are necessary, they obviously add to marginal costs and can sometimes occasion disputes and uncertainty which the words of the law alone would not have produced.”