Intention to be derived from the Text and words

It is an elementary and fundamental principle that the object of the court, in interpreting a statute, "is to see what is the intention expressed by the words used.[1]" It has been said that "the words of the statute, not non-statutory words seeking to explain them, have paramount significance[2]"

Mellish L. J. in commenting on the laxity of interpretation in England stated in Edwards v. Edwards[3]:

"If the Legislature says that a deed shall be null and void to all intents and purposes whatsoever, how can a Court of Equity say that in certain circumstances it shall be valid." We are seeking not what Parliament meant but the true meaning of what they said. In the comparatively few cases where the words of a statutory provision are only capable of having one meaning, that is an end of the matter and no
further enquiry is permissible observed LORD REID.[4]

The classic exposition of the meaning of "intention" was given by Asquith L.J. in the case of Cunliffe v. Goodman[5]."An 'intention' to my mind connotes a state of affairs which the party 'intending' - I will call him X - does more than merely contemplate: it connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition.

X cannot, with any due regard to the English language, be said to 'intend' a result which is wholly beyond the control of his will. He cannot 'intend' that it shall be a fine day tomorrow: at most he can hope or desire or pray that it will. Nor, short of this, can X be said to 'intend' a particular result if its occurrence, though it may be not wholly uninfluenced by X's will, is dependent on so many other influences, accidents and cross-currents of circumstance that, not merely is it quite likely not to be achieved at all, but, if it is achieved, X's volition will have been no more than a minor agency collaborating with, or not thwarted by, the factors which predominately determine its occurrence. If there is a sufficiently formidable succession of fences to be surmounted before the result at which X aims can be achieved it may well be unmeaning to say that X 'intended' that result”

“Courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then this first canon is also the last: 'judicial inquiry is complete.”[6]

“In carrying out that task [interpretation] the House must employ the familiar tools of statutory interpretation. The starting point is the language of the Act, from which the court seeks to derive the meaning of what Parliament has enacted. Significance may be attached not only to what Parliament has said but also, on occasion, to what it has not said. Attention may be paid to presumptions applicable to the drafting of statutes, since these are rules which expert professional draftsmen may ordinarily be expected to follow in the absence of reason to conclude that they may not have done so or an indication in the statute that they have not done so. While the express terms of a statute are always crucial, the courts will eschew an overly literal construction, taking account of the purpose of the statute, the mischief sought to be remedied and other circumstances relevant to interpretation.[7]”

The consideration of legislative objectives is one aspect of the modern approach to statutory interpretation.[8]” “The consideration of legislative objectives is one aspect of the modern approach to statutory interpretation. Yet, courts and tribunals must invoke statements of legislative purpose to elucidate, not to frustrate, legislative intent.[9]”

“We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said.[10]" This statement has been repeated on many occasions in the House of Lords and the Privy Council.[11] The purpose of the legislation must be taken into account, even where the meaning appears to be clear, and so must the consequences". . . . The plain meaning of the words, if such exists, is a secondary interpretative principle aimed at discerning the intention of the legislator.[12]”Further the literal meaning of even a very familiar expression may have to be rejected if it leads to an interpretation or consequence which Parliament could not have intended.[13]”However the Supreme Court of South Africa as per SCHUTZ JA quoting a passage clarifies the situation The literal meaning of an Act in the sense of strict literalism) is not always the true one, but escaping its operation is usually not easy, most often impossible, for:

“The cardinal rule of construction of a statute is to endeavour to arrive at the intention of the lawgiver from the language employed in the enactment. . . . in construing a provision of an Act of Parliament the plain meaning of its language must be adopted unless it leads to some absurdity, inconsistency, hardship or anomaly which from a consideration of the enactment as a whole a court of law is satisfied the legislature could not have intended.” (Per STRATFORD JA in Bhyat v Commissioner for Immigration[14]. (Emphasis supplied).

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[1] River Wear Commissioners v. Adamson (1877) 2 App Cas 743, at p 763

[2] Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11, per GLEESON CJ, GUMMOW, HAYNE and HEYDON JJ, at [22]

[3] Edwards v. Edwards [ L. R. 24 Ch. D. 291.]

[4] Black Clawson International Ltd v. Papierwerke AG [1975] UKHL 2 (05 March 1975)
URL: http://www.bailii.org/uk/cases/UKHL/1975/2.html
Cite as: [1975] UKHL 2, [1975] AC 591

[5] 1950 2 K.B.D. 237 @ 253

[6] Oberg v. Allied Van Lines, [1993] USCA2 1241; 11 F.3d 374 (7th Cir.1993); see also Public Citizen v. Dept. of Justice, [1989] USSC 125; 491 U.S. 440, 470[1989] USSC 125; , 109 S.Ct. 2558, 2574-75[1989] USSC 125; , 105 L.Ed.2d 377 (1988) (Kennedy, J., concurring) ("Where the language of a statute is clear in its application, the normal rule is that we are bound by it."); Family & Children's Center v. School City of Mishawaka, [1994] USCA7 9; 13 F.3d 1052, 1060 (7th Cir.1994) ("If the statute is unambiguous, we must enforce the plain meaning of the language enacted by Congress."). Like all general rules, there are secondary canons that may on rare occasions modify the first.)

[7] Secretary of State for Defence v Al-Skeini & Ors [2007] UKHL 26 (13 June 2007)
URL: http://www.bailii.org/uk/cases/UKHL/2007/26.html
Cite as: [2007] Inquest LR 168, [2007] 3 All ER 685, [2008] 1 AC 153, [2007] UKHRR 955, [2007] HRLR 31, [2007] 3 WLR 33, 22 BHRC 518, [2007] UKHL 26

[8] Barrie Public Utilities v. Canadian Cable Television Assn., [2003] 1 S.C.R. 476, 2003 SCC 28

[9] Barrie [supra]

[10] Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg A G [1975] AC 591, Lord Reid observed (at 613G):

[11] Roodal v. The State (Trinidad and Tobago) [2003] UKPC 78 (20 November 2003) ,ADVANCE COPY,Privy Council Appeal No. 18 of 2003

[12] Driedger, supra, at p. 3 as quoted in 2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 S.C.R. 919

[13] Jackson [supra]

[14] Bhyat v Commissioner for Immigration 1932 AD 125 at 129

Foreign Decisions as an Aid to Interpretation

For the purpose of construction of Indian statutes, courts also refer to decisions of foreign courts which are following same system of jurisprudence as ours. The assistance of such decisions is subject to the qualification that prime importance is always to be given to the language of the relevant Indian statute, the circumstances and the setting in which it is enacted and the relevant conditions in India where it is to be applied. These foreign decisions have persuasive value only and are not binding on Indian courts and where guidance is available from binding Indian decisions, reference to foreign decisions is of no use (see Forasol v ONGC, AIR 1984 SC 241; General Electric Co. v. Renusagar Power Co., (1987) 4 SCC 137).

While interpreting provisions relating to fundamental rights contained in the Indian Constitution, Supreme Court took much assistance from American precedents.

In case where an International Convention is involved, it is obviously desirable that decisions in different jurisdictions across the world should so far as possible be kept in line with each other. Therefore, in such cases foreign decisions are more useful for guiding the courts.

The following passage is very authentic statement of the Apex Indian court which states clearly that the context of the statue and the foreign decisions should be seen first before application of these types of situations.The case pertains to the constitutional issues.I quote below:

"Elaborate arguments have been advanced about the applicability of the foreign decisions, more particularly, the American Courts. It is to be noted that the American cases which have been highlighted by the petitioners relate essentially to strict classification, strict scrutiny and narrow tailoring. This issue is of considerable importance when so much debate is taking place about respect being shown by courts of a country to a decision of another country. The factual scenario and the basic issues involved in the cases sometimes throw light on the controversy. It has been rightly contended by Mr. Vahanvati and Mr. Gopal Subramanium that there is a conceptual difference between the cases decided by the American Supreme Court and the cases at hand. In Saurabh Chaudri and Ors. v. Union of India and Ors. (2003 (11) SCC 146) it was held that the logic of strict classification and strict scrutiny does not have much relevance in the cases of the nature at hand. If one looks at the different Statutes in India, Article 14 of the Constitution is conceptually different from 14th Amendment to the American Constitution as was noted in State of West Bengal vs. Anwar Ali Sarkar (1952 SCR 284) and State of Bombay and Anr. v. F.N. Balsara (1952 SCR 682). In Anwar Ali's case (supra) at pages 363 and 364 it was noted as follows:
"I find it impossible to read these portions of the Constitution without regard to the background out of which they arose. I cannot blot out their history and omit from consideration the brooding spirit of the times.
They are not just dull, lifeless words static and hide- bound as in some mummified manuscript, but, living flames intended to give life to a great nation and order its being, tongues of dynamic fire, potent to mould the future as well as guide the present. The Constitution must, in my judgment, be left elastic enough to meet from time to time the altering conditions of a changing world with its shifting emphasis and differing needs. I feel therefore that in each case judges must look straight into the heart of things and regard the facts of each case concretely much as a jury would do; and yet, not quite as a jury, for we are considering here a matter of law and not just one of fact; Do these "laws" which have been called in question offend a still greater law before which even they must bow?"
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS [2008] INSC 614 (10 April 2008)


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