Binding Value of Legislative Intention

Mens or Sententia Legi, has been referred to by judges and jurists alike as the cornerstone of statutory construction. In this paper, the author re-evaluates the age old understanding that a statute should be read in line with the intent of the legislature in framing each word.

In the Indian context, judges have often gone beyond the words of the statute and interpreted statutory provisions in a manner as to be socially and morally sound.For this reason, judicial activism has been praised and the slight circumvention of the canons of interpretation has been ignored. However, such “activism” brings into question the theoretical binding value of legislative intent. In this paper, we conclude that the role of legislative intent in statutory construction has over the years, dwindled considerably.

INTRODUCTION

It has been long understood that a statute is the edict of the Legislature.[1] However, the extent to which the legislature’s intent shapes the understanding and implementation of a statute is indeterminate. The binding value of legislative intent varies with time as well as across jurisprudences. In India, in a time where judicial activism is hailed as the protective force behind the rights of the citizenry, it becomes necessary to evaluate the role of legislative intent in statutory interpretation. In this paper, we propose to holistically address certain questions pertaining to the judicial trends in encompassing legislative intent; by importing American academic criticism of the same.

Firstly, we attempt to fully conceptualize the definition, scope and usage of legislative intent. Secondly, we put forth two arguments in criticism the theoretical foundation of legislative intent. Thirdly, based on these discrepancies we examine how courts in India have expanded their reach by interpreting statutes in a manner not necessarily in keeping with the ideal of legislative intent. Finally, based on the above considerations we conclude the legislative intent has lost its significance in modern Indian jurisprudence.

This paper will not be in the nature of a value judgement or a critique of judicial activism or judge made law. Rather, it shall remain an objective analysis of current trends of interpretation of statutes. The paper, in order to be conclusive will require a meticulous analysis of judicial interpretation and its notional limits; however this shall not be the author’s main focus.

RESEARCH QUESTIONS

1. What is legislative intent?

2. How and why is legislative intent used as a method of statutory interpretation?

3. How persuasive is the intent of the legislature in the interpretation of a statute?

4. Has judicial activism transgressed the prescribed boundaries of legislative intent?

ANALYSIS

Usage

(1) Definition and Determination

Before delving into how and when legislative intent is used in statutory interpretation, it is a necessary precursor to define exactly what the term implies. It is also necessary to understand how such intent can be gauged and where it is derived from. Legislative intent as such is nothing more than the purpose the legislature had in mind as to the meaning and implication of the words of a statute while framing it. In general the purpose behind framing any statute is to curb some public evil or effectuate some public benefit.[2] With this in mind, the legislature is presumed to garner certain meaning to the words of a statute. A statute must be rendered in accordance with such meaning.

The intention of the legislature is essentially constructed of two aspects: the concept of meaning and the concept of purpose and object. The former connotes an understanding derived from the literal meaning of the words of a statute. The latter points to the spirit and reason pervading through the statute.[3] The courts have to keep these aspects in mind while reading a statute; and are aided in this task by certain sources of legislative intent. These popularly include:[4]

1. The text of the statute as proposed to the legislature.
2. Proposed amendments to the statute, whether accepted or rejected, with reasons thereof.
3. The record of hearings on the topic.
4. Legislative records or journals.
5. Speeches and parliamentary debates made prior to the vote on the bill.
6. Legislative subcommittee (such as Standing Committee) minutes, factual findings, and/or reports
7. Other relevant statutes that can be used to understand the definitions in the statute on question; for example the General Clauses Act, 1897.
8. Other relevant statutes which indicate the limits of the statute in question; such as previous statutes on the same matter.
9. Legislative files of the executive branch, such as the governor or president.
10. Case law prior to the statute or following it which demonstrates the problems or issues the legislature was attempting to tackle with the statute.
11. Constitutional determinations (Would Congress still have passed certain sections of a statute had it known about the constitutional invalidity of the other portions of the statute?)
12. Legislative intent, which is the reason for passing the law

(2) Application

A statute is to be constructed according “to the intent of them who make it”[5] and “the duty of is the judicature is to act upon the true intention of the legislature”.[6]  While this is true, the application of legislative intent only occurs as a secondary concern, i.e., if a statutory provision is open to more than one interpretation the court has to choose that interpretation which represents the true intention of the legislature.[7] It is a well established rule that legislative intent comes into play only if the literal rendering of a statute leads to ambiguity or injustice. The Supreme Court of India has called this formulation the “cardinal rule of construction”.[8] It is accepted in traditional pedagogy that legislative intent is binding on the courts in case of ambiguity and forms the basis of statutory construction.

Reasons for Doubt

Over the years, legislative intent has lost its concrete position as the touchstone of statutory interpretation. Judges more often than not try to give more expansive definitions to legislative provisions in tone with a modern, liberal judicial outlook. At one extreme point of view, Justice Scalia of the American Supreme Court is famous for being intolerant of the invocation of intent in any argument.[9] In India, there has not been any explicit judicial questioning of the power or place of legislative intent. This makes it all the more important to set out on an academic pursuit to determine the various reasons to doubt the binding value of legislative intent.

(1) Group Intention

It is nearly impossible in today’s political set up to confidently and conclusively conceptualize intent. The legislature itself is a body generally comprising of two (in case of a bicameral system) or more houses, which are in turn composed of individuals from different political parties harbouring different- often conflicting- political ideology. How then can there ever be a single intent behind the provisions of a statute? This here is the first impediment in the use of legislative intent as a tool of interpretation. It is necessarily a fiction created by the judiciary and not a meaning bequeathed by the legislature. It is well known that the legislature becomes functus officio as soon as the enacting process comes to an end.[10] The legislature itself cannot interpret the statute it bore into existence. Thus, legislative intent is nothing more than a fiction representing the attitudes of judges in arriving at a solution by striking a balance between the letter and spirit of the statute without acknowledging that they have in a way supplemented the statute.[11]

While this is the practical impediment voiced by critiques of the tool of intent, many scholars have also expressed a more philosophical reservation.[12] These scholars primarily object to the use of legislative intent to interpret a statute because it necessarily involves an indirect reference to the individual intentions of a disparate set of politicians. A group does not have a mind, the argument goes, and so it cannot form intentions any more than it can form beliefs or adopt attitudes. Therefore, legislative intent is a species of group intention and cannot truly exist.[13] Radin states:

“The least reflection makes clear that the law maker, der Gesetzgeber, le législateur, does not exist, and only worse confusion follows when in his place there are substituted the members of the legislature as a body. A legislature certainly has no intention whatever in connection with the words which some two or three men drafted, which a considerable number rejected, and in regard to which many of the approving majority might have had, and often demonstrably did have, different ideas and beliefs”.[14]

Dworkin in fact questions if there can be any intent at all in legislative discourse. He argues that the purpose of a statute is shaped by parliamentary discourse. Such discourse is essentially an exercise in cooperation. Thus, individual legislators do not have an open choice as to what a statute is meant to do. Dworkin notes; “legislators are not like independent novelists but are instead authors of a text they did not choose alone”.[15] They cooperate to formulate legislation and no one legislator is free to stipulate what the statute shall mean or do. Legislators will cooperate to form and adopt statutes, and their intentions with respect to statutes will be shaped and limited by that cooperation.

An individual’s view may always be attributed to that of a group. However, unless the system is inherently hierarchical such an attribution is impossible. The legislative is not an oligarchic or hierarchic institution, moreover in bicameral system to conclusively garner a single intent one will have to hold one house over the other. It is very tempting to attribute the intention of the legislature to the intent of the majority decided based of a system of dialogue and voting. However, voting is merely a procedural mechanism in order to settle disputes. The purpose of the law itself is not the subject of the vote, rather its requirement is. Thus, it is the legislature as a whole which decides to frame a particular statute; the majority has no authority to legislate.[16]

Thus, sceptics find two major issues with legislative intent, that it is impossible to attribute an intent to the legislature and second that it is essentially the judge’s own point of view that is reflected as ‘intent’. If this is true, it significantly dilutes the potency of legislative intent as a method of ascertaining what a statute is meant to represent. How can we talk about binding value of intent when it is itself a flimsy construct? Perhaps, in the interest of separation of powers, we should question whether at all legislative intent should find a place as a principle of statutory interpretation?

(2). Constitutional Legitimacy

The question of Constitutionality has often come up in dialogue regarding the use of legislative intent as a tool of construction.[17] This line of argument is not popular in India however the same can be attributed to the lack of scholarly debate on legislative intent as a subject. However, at this juncture I wish to put forth my contention on the lack of constitutional validity of legislative intent.

Firstly, the argument is that the primacy of intent would violate the rule of law, because the meaning of statutes would not be evident from the public terms of the statutory text.[18] The legislature’s prerogative extends to passing statutes and not to forming intentions. Their intention cannot be held above the text of the law. Thus, while parliament may make any law it chooses, it must do so by adopting a clear text to that effect. It cannot change the law by forming intentions, but must instead enact statutes.[19] Once again, Justice Scalia has famously endorsed the view that what should be binding is the rule of law and not the rule of legislation and definitely not the rule of legislators.[20]

Secondly, the question arises as to who is to decide the pervasive extent of legislative intent? Is it the judiciary or the legislature? Experience shows that the legislative intent is used only in cases of ambiguity or injustice. There must be some conflict or confusion in the understanding of the concerned statute. In such a situation, procedure dictates that the court look into the intent of the legislature. This is akin to saying that the judiciary does not exercise the requisite competence to resolve ambiguities on its own. The court itself must have an understanding of the effect the law must have, or what it was “intended” to cure. This is in fact the basis of the mischief rule of interpretation.

Thirdly, even if the opinion of the legislative is to be considered, it should be at the judiciary’s discretion. The doctrine of separation of powers is very clear that it is the Judiciary’s job to interpret and the Legislature’s job to frame laws. As mentioned earlier, the legislature becomes functus officio as soon as a statute is passed. Thus, endowing legislative intent with any sort of binding value is contradictory to separation of powers. This doctrine has found great significance in India, with the Apex Court even adopting it as part of the basic structure.[21] This means that the prescribed compulsory use of legislative intent is directly in violation of the Constitution of India.

(3) Judicial Activism as a Challenge to Legislative Intent

It is evident now as to how courts often dismiss legislative intent or invoke it only when convenient. This is also indicative as to how judicial activism- though criticized- has not been challenged. Scholars and practioners are themselves not clear as to the value of legislative intent and are thus unable to stipulate unambiguous contours to its application.

The accusation is that the judiciary has usurped the power to legislate by going beyond the text of the law and applying its own “brand” of justice. Perhaps the most blatant exercise of judicial process is the continuous expansion of Article 21 of the Constitution of India. Once restricted to purely the life and limbs of a person; today Article 21 protects everything from the environment[22] to the livelihoods of people.[23] The introduction of public interest litigation, is another such example where the locus standi to institute a case has been significantly diluted.[24]

One may always argue that a majority of the steps taken by the Judiciary in assuming its activist role have been positive, progressive and in support of the general public. However, the question of benefit is not pertinent. Regardless of one’s stance on the issue of judicial activism, it is widely accepted that it can be exercised only by virtue of a transgression of legislative intent.[25] The question then arises to what extent can legislative intent bind the judiciary?

We shall answer this question with the help of an illustration. Article 21 specifically prescribes the usage of a “procedure established by law”; nowhere is the phrase “due process” mentioned. Yet, in the case of Menaka Gandhi v. Union of India,[26] the Supreme Court introduced due process into Indian constitutional jurisprudence. As the story goes, “due process” was explicitly excluded from the text of Article 21. Was the judiciary equipped with the power to do so? In the aforementioned case, the Court did not even delve into the principles of construction; legislative intent was completely ignored.

Another blatant example of such unrestrained interpretation would be Justice Ramaswami’s opinion in Madhu Kishwar v. State of Bihar.[27] Here, the learned judge felt that the phrase “male descendents” used in the Chotta Nagpur Tenancy Act, 1908 should include female decedents as well.  He further opined that the Hindu Succession Act, 1956 and Indian Succession Act, 1925 should be extended judicially to apply to schedule tribes to ameliorate the condition of females. Significantly, the majority opinion did not act upon these suggestions and took a conventional approach, advocating the requirement of restraint. This case however, is indicative of how judges feel- perhaps rightly so- that they have the power to transgress the binds of legislative intent.[28]

Another, famous example is the tussle between the legislature and the judiciary regarding divorce under Muslim law. Following the judgment in Mohd. Ahemed Khan v. Shah Bano Begum[29]– which expanded the right of Muslim women to maintenance- the Parliament enacted the Muslim Women (Protection of Rights in Divorce) Act, 1966. This Act was meant to undo the decision in Shah Bano which garnered harsh criticism and dissatisfaction from the Muslim community. However, in the subsequent case of Daniel Latifi v. Union of India,[30] the Supreme Court completely ignored the evident intent behind the Act and interpreted it in a manner as to be in consonance with its previous judgment.

Based on these examples, we can conclude that the binding nature of legislative intent has now been restricted to theory. The Judiciary has disregarded it as an antiquated canon of construction and in fact legislative intent has been diluted to “judicially developed equity”.[31]

Conclusion

In this paper, we have not delved into the question as to whether a restriction of legislative intent is valuable. This would entail a further and disjunct analysis. We have attempted to use American Academic Literature and apply its advances to the Indian scenario in order to determine whether or not legislative intent is specifically complied with in modern Indian jurisprudence.

We have described the origin and application of Legislative intent as a tool used for statutory construction. In my substantive sections, we have laid out a two-fold argument as to why legislative intent stands on shaky ground. Finally, we have depicted the ease with which such intent has been transgressed in India. In light of these assertions, we have concluded that legislative intent, in practice does not in fact bind judicial decisions. Its application extends merely as a persuasive aid. The judiciary has decided for itself whether or not to invoke the intent of the legislature. Further, such invocation is inconsistent and sporadic.

Bibliography

A. Treatises

1. Guru Prasanna Singh, Principles of Statutory Interpretation, 12^th, 12 (2010).
2. Salmond, Jurisprudence, 11^th, 152 (1957).
3. James Kelly, Governing with the Charter: Legislative and Judicial Activism and Framers’ Intent, (2006).

B. Academic Papers

1. Yule Kim, CRS Report for Congress, Statutory Interpretation: General Principles and Recent Trends (2008).
2. Richard Ekins, What is Legislative Intent? Its Content and Structure, Statute Law Society Conference, Belfast, 1 (2008).
3. M Radin, Statutory Interpretation, 43 Harvard L Rev 863 5 (1930).
4. R Dworkin, Law’s Empire, 6, Hart Publishing Oxford (1998).
5. K Shepsle, Congress is a ‘They,’ Not an ‘It’: Legislative Intent as Oxymoron, 12 Intl J of L and Economics 239 7 (1992;) J Waldron, Law and Disagreement, Ch. 6, OUP Oxford (1999).
6. J Waldron, Law and Disagreement, Ch. 6, OUP Oxford (1999).
7. T R S Allan, Legislative Supremacy and Legislative Intention: Interpretation, Meaning and Authority, 63 Cambridge Law Journal 685 (2004).
8. R Ekins, Acts of Parliament and the Parliament Acts, 123 LQR 91 (2007); Editorial , Legislative Intention 29(2) Statute Law Review, iii-iv (2008).
9. A Scalia, A Matter of Interpretation: Federal Courts and the Law, PUP New Jersey (1997)
10. Susan D. Susman, Distant voices in the Courts of India: Transformation of standing in Public Interest Litigation, 13 Wisconsin International Law Journal 57 (1994).

C. Cases

1. Vishnu Pratap Sugar Works (Pvt.) Ltd. v. Chief Inspector of Stamp, UP, AIR 1968 SC 102.
2. Institute of Chartered Accountants of India v. Price Waterhouse, AIR 1998 SC 74.
3. Padmasundara Rao v. State of Tamil Nadu, AIR 2002 SC 1334.
4. United Bank of India, Culcutta v. Abhijit Tea Co. Pvt. Ltd., AIR 2000 SC 2957.
5. RMD Chamarbaugwala v. Union of India, AIR 1957 SC 628.
6. Venkataswami Naidu v. Narasaman Naraindas, AIR 1966 SC 361
7. Union of India v. Elphinstone Spinning and Weaving Co. Ltd., JT 2001 (1) SC 536.
8. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
9. Indian council for Enviro-Legal action v. Union of India, (1996) 5 SCC281.
10. C Mehta v. Kamal Nath, AIR 2002 SC 1997; M.C Mehta v. Union of India, AIR 1988 SC 1037.
11. C Mehta v. Union of India, 1994 Supp. 3SCC 717.
12. C Mehta v. Union of India, AIR 1992 SC 382.
13. C Mehta v. Union of India, AIR 1997 SC 734.
14. Olga Tellis and others v. Bombay Municipal Corporation, AIR 1986 SC 180.
15. Delhi Transport Corporation D.T.C v. Mazdoor Congress, AIR 1991 SC 101.
16. The Board of Trustees of the Port of Bombay v. Dilipkumar R. Nadkaarni, AIR 1963 SC 109.
17. Maneka Gandhi v. Union of India & Anr., AIR 1978 SC 597.
18. LIC of India and another v. Consumer Education & Research Centre and others, (1995) 5 SCC 482.
19. J. Sivani & Ors. v. State of Karnataka & Ors., (1995)6 SCC 289.
20. Chameli Singh & Ors. v. State of U.P. and Anr., (1996)2 SCC 549.
21. Haniraj J. Chulani v. Bar Council of Maharashtra & Goa, (1996)3 SCC 342.
22. Narendra v State of Haryana AIR 1995 SC 519.
23. Janata Dal v. H.S. Chowdhary, AIR 1993 SC 892.
24. Menaka Gandhi v. Union of India, 1978 AIR 597.
25. Madhu Kishwar v. State of Bihar, AIR 1996 SC 1864.
26. Ahmed Khan v. Shah Bano, AIR 1985 SC 945.
27. Daniel Latifi v. Union of India, AIR 2001 SC 3958.
28. McLoughlin v. O’Brian, (1982) 2 All ER 298.
29. Building Society v. Inland Revenue Commissioners (No. 2), (1992) 3 All ER 737.
30. Kleinwort Benson Ltd. v. Lincoln City Council, (1998) 4 All ER 513.

[1] Vishnu Pratap Sugar Works (Pvt.) Ltd. v. Chief Inspector of Stamp, UP, AIR 1968 SC 102, ¶ 104; Institute of Chartered  Accountants of India v. Price Waterhouse, AIR 1998 SC 74, ¶ 90; Padmasundara Rao v. State of Tamil Nadu, AIR 2002 SC 1334, ¶ 1346.

[2] United Bank of India, Culcutta v. Abhijit Tea Co. Pvt. Ltd., AIR 2000 SC 2957, ¶ 2962 (per Jaganath Rao J).

[3] Guru Prasanna Singh, Principles of Statutory Interpretation, 12^th Ed., 12 (2010).

[4] Yule Kim, CRS Report for Congress, Statutory Interpretation: General Principles and Recent Trends (2008).

[5] RMD Chamarbaugwala v. Union of India, AIR 1957 SC 628, ¶ 631.

[6] Salmond, Jurisprudence, 11^th Ed., 152 (1957).

[7] Venkataswami Naidu v. Narasaman Naraindas, AIR 1966 SC 361, ¶ 363.

[8] Union of India v. Elphinstone Spinning and Weaving Co. Ltd., JT 2001 (1) SC 536, ¶ 563.

[9] Richard Ekins, What is Legislative Intent? Its Content and Structure, Statute Law Society Conference, Belfast, 1 (2008).

[10] Id., 12.

[11] Id., 8-9.

[12] See M Radin, Statutory Interpretation, 43 Harvard L Rev 863 5 (1930); R Dworkin, Law’s Empire, 6, Hart Publishing Oxford (1998); K Shepsle, Congress is a ‘They,’ Not an ‘It’: Legislative Intent as Oxymoron, 12 Intl J of L and Economics 239 7 (1992;) J Waldron, Law and Disagreement, Ch. 6, OUP Oxford (1999).

[13] Ekins, Supra note 10, 3.

[14]M Radin, Statutory Interpretation, 43 Harvard L Rev 869-703 5 (1930).

[15] R Dworkin, Law’s Empire, 332, Hart Publishing Oxford (1998).

[16] J Waldron, Law and Disagreement, Ch. 6, OUP Oxford (1999).

[17] See T R S Allan, Legislative Supremacy and Legislative Intention: Interpretation, Meaning and Authority, 63 Cambridge Law Journal 685 (2004); R Ekins, Acts of Parliament and the Parliament Acts, 123 LQR 91 (2007); Editorial , Legislative Intention 29(2) Statute Law Review, iii-iv (2008).

[18] T R S Allan, Legislative Supremacy and Legislative Intention: Interpretation, Meaning and Authority, 63 Cambridge Law Journal 685, 696 (2004).

[19] Ekins, Supra note 10, 6.

[20] A Scalia, A Matter of Interpretation: Federal Courts and the Law, PUP New Jersey (1997)

[21] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225  (Per Beg J.).

[22] Indian council for Enviro-Legal action v. Union of India, (1996) 5 SCC281; M. C Mehta v. Kamal Nath, AIR 2002 SC 1997; M.C Mehta v. Union of India, AIR 1988 SC 1037; M.C Mehta v. Union of India, 1994 Supp. 3SCC 717; M.C Mehta v. Union of India, AIR 1992 SC 382; M.C Mehta v. Union of India, AIR 1997 SC 734.

[23] Olga Tellis and others v. Bombay Municipal Corporation, AIR 1986 SC 180, ¶ 32-33; Delhi Transport Corporation D.T.C v. Mazdoor Congress, AIR 1991 SC 101, ¶ 223; The Board of Trustees of the Port of Bombay v. Dilipkumar R. Nadkaarni, AIR 1963 SC 109 ¶ 13; Smt. Maneka Gandhi v. Union of India & Anr., AIR 1978 SC 597; LIC of India and another v. Consumer Education & Research Centre and others, (1995) 5 SCC 482; M.J. Sivani & Ors. v. State of Karnataka & Ors., (1995)6 SCC 289; Chameli Singh & Ors. v. State of U.P. and Anr., (1996)2 SCC 549; Dr. Haniraj J. Chulani v. Bar Council of Maharashtra & Goa, (1996)3 SCC 342; Narendra v State of Haryana AIR 1995 SC 519.

[24]See Janata Dal v. H.S. Chowdhary, AIR 1993 SC 892; See also Susan D. Susman, Distant voices in the Courts of India: Transformation of standing in Public Interest Litigation, 13 Wisconsin International Law Journal 57 (1994).

[25] James Kelly, Governing with the Charter: Legislative and Judicial Activism and Framers’ Intent, (2006).

[26] 1978 AIR 597.

[27] Madhu Kishwar v. State of Bihar, AIR 1996 SC 1864, ¶ 1879- 1881 (per Ramaswami J.).

[28]  Madhu Kishwar v. State of Bihar, AIR 1996 SC 1864, ¶ 1879- 1881 (per Kuldip Singh J. And Punchhi J.).

[29]  AIR 1985 SC 945.

[30] AIR 2001 SC 3958.

[31] McLoughlin v. O’Brian, (1982) 2 All ER 298, 310; Building Society v. Inland Revenue Commissioners (No. 2), (1992) 3 All ER 737, 760-763; Kleinwort Benson Ltd. v. Lincoln City Council, (1998) 4 All ER 513, 553.