Chapter-14 Authorities on Doctrine of reading Down-part-8

The technique of reading down has been adopted in numerous cases to sustain the validity of the provision. In Jagdish Pandey v. The Chancellor, University of Bihar & Anr.[1], Supreme Court of India made resort to section 4 of the Bihar State Universities Act, 1962. It was observed that section 4 so read literally it did appear to give uncanalised powers to the Chancellordo what he liked on the recommendation of the Commission with respect to teachers covered by it. But this Court was of the opinion that the legislature did not intend to give such an arbitrary power to the Chancellor and was of the opinion that s. 4 should be read down and if it is readdown, there was no reason to hold that the legislature was conferring a naked arbitrary power on the Chancellor and that power cannot be struck down ,as discriminatory under Article 14 of the Constitution[2].

Krishna Iyer, J, speaking for this Court at p. 511, para 34, of the report observed that the Court does not 'rush in' to demolish provisions where judicial endeavour, amelioratively interpretational, may achieve both constitutionality and compassionate resurrection. This salutary strategy, It was also observed that of sustaining the validity of the law and softening its application was of lovely dexterity. The semantic technique of updating the living sense of a dated legislation is, in our view, perfectly legitimate. Semantic readjustments are necessary to obviate a logicidal sequel and a validation-oriented approach becomes the philosophy of statutory construction sometimes[3].

In Charan Lal Sahu & Ors. v. Union of India[4], , at pages 53 and 54, paras101 as well as p. 61, para 114, it was observed thatthis principle of reading down has been adopted in U.S. Supreme Court in several cases.[5]. The principle as enunciated in Rumely's case (supra) has been approved by this Court in Shah & Co. v. State of Maharashtra[6], This principle of reading down or placing limited construction has been adopted by courts in England in deciding the validity of bye-laws and regulations[7].

In the case of Jagdish Pandey v. The Chancellor University of Bihar & Anr., the challenge was to the constitutionality of s. 4 of Bihar State Universities (University of Bihar, Bhagalpur and Ranchi) (Amendment) Act 13 of 1962 as discriminatory and violative of Art. 14 of the Constitution. It has been urged that s. 4 confers uncana- lised powers on the Chancellor without indicating any criterion on the basis of which the power under s. 4 can be exercised. It has been observed that:

" ...... There is no doubt that if one reads s. 4 literally it does appear to give uncanalised powers to the Chancellor to do what he likes on the recommendations of theCommission with respect to teachers covered by it. We do not, however, think that the Legislature intended to give such an arbitrary power to the Chancellor. We are of opinion that s.4 must be read down and if we read it down there is no reason to hold that the legislature was conferring a naked arbitrary power on the Chancellor[8]."

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[1] In Jagdish Pandey v. The Chancellor, University of Bihar & Anr., [1968] 1 SCR 23 1, at pages 236-37

[2] [See the observations of this Court in Sunil Batra v. Delhi Administration & Ors.,.There the constitutionality of s. 30, sub-section (2) and section 56 of the Prisons Act, 1894 was in question.]

[3] Sunil Batra,Ibid[[ Similar observations were made in N.C. Dalwadi v State of Gujarat, (supra). In Tinsukhia Electric Supply Co. Ltd. v. State of Assam & Ors[3]., [1989] 3 SCC 709, this Court upheld the validity of sections 9 and 10 of the Act by reading in several matters by necessary implication in order to sustain the validity of the sections. ]

[4] Charan Lal Sahu & Ors. v. Union of India, [1989] Supp. SCALE 1page53,54

[5] See also United States of America v. Edward A. Rumely, 97 Lawyers Edition 770 at 775

[6] Shah & Co. v. State of Maharashtra, [1967] 3 SCR466 at 477-78.

[7] See Reg. v. Sadlers Co., 10 H.L.C. 404, at 460 and463 and Faramus v. Film Artists Association, 1962 QB 527 at542 The courts must iron out the creases, as saidLord Denning in Seaford Court Estates, [1949] 2 KB 481. This Court has also on numerous occasions followed this practice. See the observations of this Court in 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. See also H.M. Seervai's 'Constitutional Law of India', 3rd Edn. Vol. I, pages 119-120.

[8] Jagdish Pandey v. The Chancellor University of Bihar & Anr., [1968] 1 SCR 23 1

Chapter-5 Doctrine of Reading In and Reading Down Part-5-1

Chapter-5

Doctrine of Reading In and Reading Down

Part-5-1

Doctrine of Reading down and Reading In

In a motion brought by the Ontario Human Rights Commission (the“Commission”), with the support of the Respondent, for an Order addressing the jurisdiction of the Human Rights Tribunal of Ontario (the “Tribunal”) under the Human Rights Code, R.S.O. 1990, c.H.19 (the “Code”) with respect to section 2(9) of the Respondent’s Operating Agreement, flowing from an earlier decision of the Court of Appeal in this matter.Specifically, the Commission had asked the Tribunal to determine that it lacks the jurisdiction to find that section 2(9) of the Operating Agreement violates the Code, prior to the commencement of the hearing on the merits, in order to save time during the hearing.

During the couse of the consideration of the motion it was observed that the doctrine of Reading down should be applied to the Code and for explaining the same the following passage of Peter Hogg was quoted. The following passage states clearly as to what is Reading down.

Requirements of Reading Down

The “reading down” doctrine requires that, whenever possible, a statute is to be interpreted as being within the power of the enacting legislative body. What this means in practice is that general language in a statute which is literally apt to extend beyond the power of the enacting Parliament or Legislature will be construed more narrowly so as to keep it within the permissible scope of power. Reading down is simply a canon of construction (or interpretation). It is only available where the language of the statute will bear the (valid) limited meaning as well as the (invalid) extended meaning; it then stipulates that the limited meaning be selected. Reading down is like severance in that both techniques mitigate the impact of judicial review, but reading down achieves its remedial purpose solely by the interpretation of the challenged statute, whereas severance involves holding part of the statute to be invalid. Reading down is sometimes said to depend upon a presumption of constitutionality: the enacting legislative body is presumed to have meant to enact provisions which do not transgress the limits of its constitutional powers; general language which appears to transgress the limits must therefore be “read down” so that it is confined within the limits[1].

There are three routes of attacking a matter that falls outside the jurisdiction of the enacting legislative body, which he summarized on p.15-25, as attacking:

“(1) the validity of the law, or (2) the applicability of the law, or (3) the operability of the law.”

When attacking the applicability of the law, Hogg described a scenario where the law was valid in most of its applications, and thus, the law remains valid in most of its applications but is interpreted so as not to apply to the matter that is outside the jurisdiction of the enacting body. This is the essence of the doctrine of reading down, offered as a practical solution to the problem of interjurisdictional immunity[2]’.However, in Narkle v Hamilton [3] ‘in that case, this court declined to read down the clear and unambiguous definition of the term 'statutory penalty' in cl 2 of Sch 1 which incorporates the definitions in the Sentencing Act 1995, s 4(1). The definition of penalty in the Interpretation Act 1984 (WA), s 5 covers all forms of punishment including a fine. It was not contended in Narkle that there was anything in the amending legislation, the Criminal Law Amendment (Simple Offences) Act 2004 (WA), that was inconsistent with a legislative intention to trigger the cl 2(5)(a) exclusion.’

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[1] According to Peter Hogg, in his seminal work, Constitutional Law of Canada, Thomson-Carswell, looseleaf, at p.15-24, the doctrine of reading down is one which ought to be applied narrowly.AS quoted in at paragraph 47 and 48 Iness v. Caroline Co-operative Homes Inc., 2005 HRTO 17[Human Rights Tribunal,Ontario]

[2] Peter Hogg [Supra]

[3]Narkle v Hamilton [2008] WASCA 31

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