Chapter-5
Doctrine of reading Down in service termination
In the circumstances power must be there, the power must be read down in the manner and to the extent indicated above, of terminating the services of permanent employees without holding any enquiry in the stated contingencies and this would be either by virtue of the silence of the provision indicating the contingencies of termination or by virtue of constitutional inhibitions. That reading would not violate the theory that judges should not make laws[1].
Doctrine of Reading down not meant to amend laws but only to mend
The Courts, though, have no power to amend the law by process of interpretation, but do have power to mend it so as to be in conformity with the intendment of the legislature. Doctrine of reading down is one of the principles of interpretation of statute in that process. But when the offending language used by the legislature is clear, precise and unambiguous, violating the relevant provisions in theconstitution, resort cannot be had to the doctrine of reading down to blow life into the void law to save it from unconstitutionality or to confer jurisdiction on the legislature. Similarly it cannot be taken aid of to emasculate the precise, explicit, clear and unambiguous language to confer arbitrary, unbridled and uncanalised power on an employer which is a negation to just, fair and reasonable procedure envisaged under Articles 14 and 21 of the Constitutionand to direct the authorities to record reasons, unknown or unintended procedure[2].
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. he 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[3].
[1] Shri Ram Krishna Dalmia v. Justice Tandolkar, [1959] SCR 279 at 299; Jyoti Prasad v. The Administrator for the Union Territory of Delhi, [1962] 2 SCR 125 at 139; Union of India v. Col. J.N. Sinha & Anr., [1970] 2 SCC 450 at 461; N.C. Dalwadi v. State of Gujarat, [1987] 3 SCC 611 paragraphs 9 and 10 at page 619; Commissioner of Sales Tax, M.P., Indore & Ors. v. Radhakrishan & Ors., [1979] 2 SCC 249 at 257; Olga Tellis & Ors. etc. v. Bombay Municipal Corporation & Ors., [1985] Suppl.2 SCR 51 at 89; R.M.D. Chamarbaugwalla v. Union of India, [1957] SCR 930 at p. 935 and 938; Kedar Nath Singh v. State of Bihar, [1962] Supp. 2 SCR 769; R.L. Arora v. State of Uttar Pradesh, [1964] 6 SCR 784; Jagdish Pandev v. The Chancellor, University of Bihar & Anr., [1968] 1 SCR 231, at pages 236-237; Sunil Batra v. Delhi Administration & Ors., [1978] 4 SCC 494; Tinsukhia Electric Supply Co.Ltd.
v. State of Assam & Ors., [1989] 3 SCC 709; Charan Lal Sahu & Ors. v. Union of India, [1989] Suppl. SCALE 1, at pages 53 and 54, paras 101 as well as p. 61 para 114; Shah & Co. v. State of Maharashtra, [1967] 3 SCR 466 at 477-78; M. Pentiah and Ors. v. Veera-Mallappa and Ors., [1961] 2 SCR
295; Bangalore Water Supply and Sewerage Board etc. v. A. Rajappa & Ors., [1978] 3 SCR 207; Minerva Mills Ltd.& Ors., v. Union of India & Ors., [1981] 1 SCR 206, at p. 239 and 259; Elliott Ashton Welsh, 11 v. United States, 26 Lawyers' Edition 2nd, 308 at 327; Malinakhva Bysack v. Shyam Sunder
Haldar & Ors., [1953] SCR 533, at p. 544-545 and Municipal Committee, Amritsar & Anr. v. State of Punjab & ors., [1969] 3 SCR 447, referred to. United States of America v. Edward A. Rumely, 97 Law-yers Edition 770 at 775; Reg. v. Sadiers Co., 10 H.L.C. 404,460 and 463; Framamus v. Film Artists Association, 1962 QB527 at 542 and Seaford Court Estates, [1949] 2 KB 481 H.M. Seervaid 'Constitutional Law of India', 3rd Edn.Vol. 1 pages 119-120 and Lord Denning: "The discipline ofLaw", at p. 12
[2] Elliott Ashton Walsh, H v. United States, 398 U.S.333;Nalinakhya Bysack v. Shyam Sunder Haldar & Ors., [1953] SCR533 at 544-45; United States v. Wunderlick, 342 U.S. 93;S.C. Jaisinghani v. Union of India, [1967] 2 SCR 703; In reHindu Women's Right to Property Act, [1941] FCR, 12; K.N.Singh v. State of Bihar, [1962] Suppl. 2 SCR 769; R.L. Arorav. State of U.P., [1964] 6 SCR 784; Jagdish Pandev v. Chancellor of the Bihar, [1969] 1 SCR 231; Amritsar Municipalityv. State of Punjab, [1969] 3 SCR 447;Sunil Batra v. DelhiAdmn.,[1978] 4 SCC 494; N.C. Dalwadi v. State of Gujarat,[1987] 3SCC 611; Charanlal Sahu v. Union of India, [1989] Suppl.Scale 1 at p. 61; Delhi Transport Undertaking v. Balbir
Saran Goel, [1970] 3 SCR 747; Air India Corporation v.Rebellow, [1972] 3 SCR 606 and Municipal Corporation ofGreater Bombay v. P.S. Malvankar, [1978] 3 SCR 1000, referred to. Federal Steam Navigation Co. v. Department of Trade andIndustry, [1974] 2 All E.R. 97 at p. 100 and Saints High
School, Hyderabad v. Govt. of A. P., [1980] 2 SCR 924, referred to.Craies Statute Law, 7th Ed. Ch. V, P. 64.
[3] 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.
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