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The most comprehensive coverage on the construction of Statutes. It includes parts of statutes,Extrinsic-Aids,Intrinsic aids, Reading down, Amendments,Repeals,codifications,Quasi-Judicial agencies,Non-obstante clause,Mandatory/Declatory provisions,Tax ,Beneficial, Criminal,Fiscal Statute's Interpretation and sub-ordinate legislations.Besides it contains the Rules of Interpretation and the Role of Judiciary.Citations are in abundance.

Thursday, May 6, 2010

Chapter-14 Doctrine of reading down-when permissible-part-7

Reading a provision down when permissible.

The question emerges whether the doctrine of reading down would be applied to avoid a void law vesting with arbitrary power with a naked hire and fire draconian rule. The Courts cannot in the process of interpretation of the Statute would not make law but leave it to the legislature for necessary amendments. In an appropriate case Judges would articulate the inarticulate major premise and would give life and force to a Statute by reading harmoniously all the provisions ironing out the freezes. But the object is to alongate the purpose of the Act. In this regard 1 respectfully agree with my learned brother, my Lord the Chief Justice, on the prin ciple of statutory construction. The question is whether Legislature intended to confer absolute power or would it be construed in such a way that would supplant the law but not supplement law made by the Legislature.

Doctrine of Reading Down or of Recasing to be applied in limited Situations

The doctrine of reading down or of recasting the statute can be applied in limited situations. It is essentially used, firstly, for saving a statute from being struck down on account of its unconstitutionality. It is an extension of the principle that when two interpretations are possible--one rendering it constitutional and the other making it constitutional the former should be preferred. The nconstitutionality may spring from either the incompetence of the legislature to enact the statute or from its violation of any of the provisions of the Constitution. The second situation which summons its aid is where the provisions of the statute are vague and ambiguous and it is possible to gather the intention of the legislature from the object of the statute, the context in which the provisionoccurs and the purpose for which it is made. However, when the provision is cast in a definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accordwith good reason and conscience. In such circumstances, it is not possible for the Court to remake the statute. Its only duty is to strike it down and leave it to the legislature if it so desires, to amend it. If the remaking of the statute by the courts is to lead to its distortion that course is to be scrupulously avoided. The doctrine can never be called into play where the statute requires extensive additions and deletions. Not only it is no part of the court's duty to undertake such exercise, but it is beyond its jurisdictionto do so[1].

Reference may also be made to the decision of this Court in R.L. Arora v. State of Uttar Pradesh,[2] [1964] 6 SCR 784 where the question was about the Constitutionality of sec tion 41(aa) of the Land Acquisition (Amendment) Act, 1962. This Court upheld the validity of the section following the principle of interpreting the said rule in a way which would be consistent with the Constitution[. See the observations of this Court at p. 797 of the said report.]

[1] Re Hindu Women's Rights to Property Act, 1937, and the Hindu Women's Rights to Property (Amendment) Act, 1938 etc., [1941] FCR 12; Nalinakhya Bysack v. Shyam Sunder Halder &Ors., [1953] SCR 533; R.M.D. Chamarbaugwalla v. The Union of India, [1957] SCR 930; Kedar Nath Singh v. State of Bihar, [1962] Supp. 2 SCR 769; R.L Arora v. State of Uttar Pradesh & Ors., [1964] 6 SCR 784; Jagdish Pandey v. The Chancellor, University of Bihar & Anr., [1968] I SCR 231; Shri Umed v.Raj Singh & Ors., [1975] I SCR 918; Mohd. Yunus Salim'scase, AIR 1974 SC 1218; Sunil Batra etc. v. Delhi Administration & Ors., [1978] 4 SCC 494; Excel Wear etc. v. Union of India & Ors., [1979] 1 SCR 1009; Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1981] 1 SCR 206; Union of India & Anr. etc. v. Tulsiram Patel etc., [1985] 3 SCC 398and Elliott Ashton Welsh, 11 v. United States, 398 US333; 26 L.ed. 2nd 308, referred to.

[2] R.L. Arora v. State of Uttar Pradesh, [1964] 6 SCR 784

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