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Tuesday, May 4, 2010

Chapter-10 Part-3

Willis at l3-l4:

What is an 'absurdity'? When is the result of a particular interpretation so 'absurd' that a court will feel justified in departing from a 'plain meaning'? There is the difficulty. 'Absurdity' is a concept no less vague and indefinite than plain meaning': you cannot reconcile the cases upon it. It is infinitely more susceptible to the influence of personal prejudice. The result is that in ultimate analysis the 'golden rule' does allow a court to make quite openly exceptions which are based not on the social policy behind the Act, not even on the total effect of the words used by the legislature, but purely on the social and political views of the men who happen to be sitting on the case ...

What use do the courts make of the 'golden rule' today? Again the answer is the same - they use it as a device to achieve a desired result, in this case as a very last resort and only after all less blatant methods have failed. In those rare cases where the words in question are (a) narrow and precise, and (b) too 'plain' to be judicially held not plain, and yet to hold them applicable would shock the court's sense of justice, the court will if it wishes to depart from their plain meaning, declare that to apply them literally to the facts of this case would result in an 'absurdity' of which the legislature could not be held guilty, and, invoking the 'golden rule,' will work out an implied exception.

As per the golden rule of interpretation , that words should be read in their ordinary, natural and grammatical meaning subject to the rider that in construing words in a Constitution conferring legislative power the most liberal construction should be put upon the words so that they may have effect in their widest amplitude. This is subject to certain exceptions and a restricted meaning may be given to words if it is necessary to prevent a conflict between two exclusive entries.[1]” I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Courts of Law, that in construing wills and indeed statutes, and all written instruments, 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 that absurdity and inconsistency, but no farther.”[2]But it is to be borne in mind that the office of the judges is not to legislate, but to declare the expressed intention of the legislature, even if that intention appears to the court injudicious; and I believe that it is not disputed that what Lord Wensleydale used to call "the golden rule" is right, viz., that we are to take the whole statute together, and construe it altogether, giving the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity, or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification, and to justify the court in putting on them some other signification which, though less proper, is one which the court thinks the words will bear[3].

[1] Constitutional Law of India by Seervai, the learned author has said in para 2.12 (3rd ed.)

[2](1857) 6 HLC 61, 106.

[3] Goodswimmer v. Canada [1995] 2 F.C. 389

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