Chapter-5 Doctrine of Reading Down: Miscellaneous considerations Part-9-6

Chapter-5

Doctrine of Reading Down: Miscellaneous considerations

Part-9-6

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].

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[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.

Chapter-5 An internal aid to construe the words and phrases in the Statute Part-9-5

Chapter-5

An internal aid to construe the words and phrases in the Statute

Part-9-5

The Doctrine of Reading Down is, therefore, an internal aid to construe the word or phrase in a statute to give reasonable meaning, but not to detract, disort or emasculate the language so as to give the supposed purpose to avoid unconstitutionality. Thus, the object of reading down is to keep the operation of the statute within the purpose of the Act and constitutionally valid.

It cannot be accepted that the Courts, 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 creezes. The object is to elongate the purpose of the Act.

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 the constitution, 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 Constitution and to direct the authorities to record reasons, unknown or unintended procedure.[1]

Even in such cases the Courts have to pre define the rules of the games. The usage of above power of the Court is not free from criticism as there are no clear cut guidelines and possibly there cannot be so. If the reading down means elimination of words of the statutes during the interpretive process the courts would be working against the basic presumption that the legislature does not use words that are more than necessary. If the courts cannot read into well it stands to logic that the courts should not ‘read out’ something from the statute.

It is well settled principle in law that the Court cannot read anything into a statutory provision which is[2]

plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the

determinative factor of legislative intent. The first and primary rule of construction is that the intention of the Legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said.

"Statutes should be construed not as theorems of Euclid". Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them".

(See Lenigh Valley Coal Co. v. Yensavage[3] 218 FR 547). The view was reiterated in Union of India and Ors. v. Filip Tiago DeGama of Vedem Vasco De Gama [4].

In D.R Venkatchalam and Ors. etc. vs. Dy. Transport Commissioner and Ors. etc it was observed that Courts must avoid the danger of apriori determination of the meaning of a provision based on their own pre- conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation.

While interpreting a provision the Court only interprets the law and cannot legislate it. If a provisionof law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. [See Rishabh Agro Industries Ltd. vs. P.N.B. Capital Services Ltd[5].

Francis Bennion in his book 'Statutory Interpretation' on pages 53 and 548 has dealt the matter as under:

"Under the British Constitution, the function of determining authoritatively the meaning of a parliamentary enactment is entrusted to the judiciary. In the words of Richard Burn they have the exposition of Acts, which must not be expounded 'in any other sense than is truly and properly the exposition of them'. This is but one aspect of the Court's general function of applying the relevant law to the facts of thecase before it. The starting point is, therefore, to consider this function."

"It is the function of the court alone to declare the legal meaning of an enactment. If anyone else (such as the draftsman of the provision) purports to lay down what the legal meaning is the court will tend to react adversely, regarding this as an encroachment upon its constitutional sphere".

A Constitution Bench of Supreme Court in Sanjeev Coke Manufacturing Companyv. Bharat Coking Coal Ltd. & Anr[6]. observed as under:

"No one may speak forthe Parliament and Parliament is never before the Court After Parliament has said what it intends to say what the Parliament meant to say. None else. Once a statute leaves Parliament House, the Court's is the only authentic voice which may echo (interpret) the Parliament. This the Court will do with reference to the language of the statute and other permissible aids. The executive Government may place before the Court their understanding of what Parliament has said or intended to say or what they think was Parliament's object and all the facts and circumstances which in their view led to the legislation. When they do so, they do not speak for parliament. No act of Parliament may be struck down because of the understanding or misunderstanding of Parliamentary intention by the executive government or because their (the Government's) spokesmen do not bring out relevant circumstances but indulge in empty and self defeating affidavits. They do not and they cannot bind Parliament. Validity of legislation is not to be judged merely by affidavits filed on behalf of the State, but by all the relevant circumstances which the Court may ultimately find and more especially by what may be gathered from what the legislature has itself said. We have mentioned the facts as found by us and we do not think that there has been any infringement of the right guaranteed by Art. 14".

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[1] [ Elliott Ashton Walsh, H v. United States, 398 U.S. 333; Nalinakhya Bysack v. Shyam Sunder Haldar & Ors., [1953] SCR 533 at 544-45; United States v. Wunderlick, 342 U.S. 93; S.C. Jaisinghani v. Union of India, [1967] 2 SCR 703; In re Hindu Women's Right to Property Act, [1941] FCR, 12 ;K.N. Singh v. State of Bihar, [1962] Suppl. 2 SCR 769; R.L. Arora v. State of U.P., [1964] 6 SCR 784; Jagdish Pandev v. Chan- cellor of the Bihar, [1969] 1 SCR 231; Amritsar Municipality v. State of Punjab, [1969] 3 SCR 447;Sunil Batra v. Delhi Admn.,[1978] 4 SCC 494; N.C. Dalwadi v. State of Gujarat, [1987] 3 SCC 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 of Greater Bombay v. P.S. Malvankar, [1978] 3 SCR 1000, Federal Steam Navigation Co. v. Department of Trade and Industry, [1974] 2 All E.R. 97 at p. 100 and Saints High School, Hyderabad v. Govt. of A. P., [1980] 2 SCR 924,] .

[2] Appeal (civil) 8624 of 2002;Special Leave Petition (civil) 10315 of 2001;M/s. Unique Butyle Tube Industries Pvt. Ltd.;v.U.P. Financial Corporation & Ors.;DATE OF JUDGMENT: 20/12/2002

BENCH:SYED SHAH MOHAMMED QUADRI & ARIJIT PASAYAT.

[3] (See Lenigh Valley Coal Co. v. Yensavage 218 FR 547). The view was re-iterated in Union of India and Ors. v. Filip Tiago DeGama of Vedem Vasco De Gama (AIR 1990 SC 981).

[4] Union of India and Ors. v. Filip Tiago DeGama of Vedem Vasco De Gama (AIR 1990 SC 981).

D.R Venkatchalam and Ors. etc. vs. Dy. Transport Commissioner and Ors. etc. (AIR 1977 SC 842)

[5] Rishabh Agro Industries Ltd. vs. P.N.B. Capital Services Ltd. (2000 (5) SCC 515)]

[6] Sanjeev Coke Manufacturing Companyv. Bharat Coking Coal Ltd. & Anr.,[1983] 1 SCR 1000 at P. 1029