Report No. 183

Again in Chapter IX (Summary of conclusions and Recommendations at para 81 of the said Report), it is observed:

"81. We accept nevertheless the argument summarized in paragraph 79 to the extent that we do not propose any comprehensive statutory enumeration of the factors to be taken into account by the courts in the interpretation of legislation; even in the countries with the most highly codified systems, the principles of interpretation largely rest on a body of flexible doctrines developed by legal writers and by practice of the courts."

We refer to the New Zealand Law Commission ReportNo. 17 (S) (1990) on 'A New Interpretation Act' in which the New Zealand Law Commission had examined Interpretation Act 1924 and prepared a Report on a New Interpretation Act at para 16 of the summary of the Report, the said Commission identified important issues. One of the issues was whether the Act should regulate the use that can be made of material beyond the text of the enactment to assist its interpretation? Obviously, these materials are known as external aids. The answer to the question is given under para 22 of the Summary of the Report as follows:

"22. The Report concludes that practice shows there is sometimes value in considering parliamentary material. Accordingly, a prohibitory rule is inappropriate. And while a permissive rule could address the questions outlined in the Report, the legislative answers given elsewhere do not appear to provide any significant assistance to the courts. Rather the courts themselves have been developing and will continue to develop rules and practices about relevance and significance. Accordingly, the Commission does not propose the enactment of legislation regulating the use of parliamentary material."

The Commission recommended that the use of parliamentary material in the interpretation of legislation should not be regulated by a general statute.

It is apparent from the discussion above mentioned that all the three Law Commissions viz., Law Commission of India (in its 60th Report submitted in 1974), British and Scottish Law Commission in their Joint Report submitted in 1969 and New Zealand Law Commission in its report submitted in 1990, categorically recommended that rules of interpretation regarding use of extrinsic material should not be enacted in legislative form. These recommendations of all these Law Commissions are based on sound reasons and we concur with those recommendations.

There are some other underlying reasons which also negate the concept of codification of these rules. Interpretation requires certain amount of discretion and flexibility and judges must have discretion. If the rules regarding use of external aids are codified then judges would loose the discretion which they are having in the present system. In the absence of discretion and flexibility, courts may not be in a position to do justice.