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Report No. 183

In Bhatia International v. Bulk Trading S.A., (2002) 4 SCC 105, the apex court observed:

"Notwithstanding the conventional principle that the duty of Judges is to expound and not to legislate, the courts have taken 25 26 the view that the judicial art of interpretation and appraisal is imbued with creativity and realism and since interpretation always implied a degree of discretion and choice, the courts would adopt, particularly in areas such as constitutional adjudication dealing with social and defuse (sic) rights. Courts are therefore, held as 'finishers, refiners and polishers of legislation."

(para 15)

Therefore, when the interpretation requires discretion and choice, it is not advisable to codify the rules for interpretation especially those regarding use of external aids.

One of the main reasons which requires giving considerable latitude to courts in the matter of interpretation of statutory provision is that the Legislature cannot foresee exhaustively all the situations and circumstances that may emerge after enacting statutory provisions where their applications may be called for. It is impossible even for the most imaginative Legislature to foresee all the future circumstances. In this regard, Supreme Court in Ratanchand Hirachand v. Askar Nawaz Jung - (dead) by L.Rs., (1991) 3 SCC 67 has observed:

"The legislature often fails to keep pace with the changing needs and values, nor it is realistic to expect that it will have provided all contingencies and eventualities. It is, therefore, not only necessary but obligatory on the court to step in to fill the lacuna."

(para 17)

The above principle is equally attracted if we propose to legislate rules of interpretation regarding use of external aids. The legislature cannot, when it makes a law today, foresee the kind of aids which may be useful after a gap of years nor can it foresee all situations in which a particular aid can be helpful. For example, now courts use information of judgements of foreign jurisdictions which is available on internet, as an external aid for interpretation.

This facility was unknown in the past. Similarly, in future some other new technology may come out. Again, new or peculiar circumstances may arise where the court has to take recourse to some material or aid which has not been used in the past as external aid. Therefore, rigid and statutory rules for interpretation of statutes for the use of external aids are not warranted.

Similarly, a court has to interpret a statutory provision in the context of current social and economic circumstances prevailing in the society. Krishna Iyer J. in State of Mysore v. R.V. Bidop, AIR 1973 SC 2555 has held that 'social context' can be looked as an external aid, where the language is ambiguous. As stated in previous paragraphs, Bhagwati J. (as he then was) in S.P. Gupta's case has held that the interpretation of every statutory provision must keep pace with changing concept and values and it must accord with the requirement of the fast changing society which is undergoing rapid social and economic transformation.

Such social and economic changes cannot be formulated in the legislative form. Moreover, with the passage of time, meaning of words may also get changed. For example, in 1950 in A.K. Gopalan's case, meaning of words 'life and personal liberty' in Article 21 of the Constitution of India was interpreted in terms of only physical or bodily liberty and not more than and 'procedure established by law' was interpreted like 'any kind of procedure prescribed by the law of any kind.

But the meaning of the words 'life and personal liberty' has been widened considerably to mean protection to all those aspect of life which go to make a man's life meaningful, complete and worth-living with dignity. Right to life would include all that give meaning to a man's life e.g. his tradition, culture, heritage and protection of that heritage in its full measure. ( Ramsharan v. Union of India, (1989) Suppl.(1) SCC 251 (Prs. 13-14).

It would also include the right to good health (M.C. Mehta v. Union of India, (1999) 6 SCC 9 (Pr.1); right to healthy environment (A.P. Pollution Control Board II v. Prof. M.V. Nayudu, (2001) 2 SCC 62); right to health care (State of Punjab v. Ram Lubhaya, (1998) 4 SCC 11). Now, 'procedure established by law' means that substantive law as well as procedural law must be 'just, fair and reasonable'. Meaning of words 'affairs of state' appearing in section 123 of the Evidence Act has also undergone drastic changes with the passage of time. In this regard, Law Commission in its 60th Report at para 2.9 has observed:

"Moreover, with the passage of time, there may be changes in the meaning of words. As has been stated, 'some words are confined to their history, while some are starting points for history."

A continuum on the General Clauses Act, 1897 with special reference to the admissibility and codification of external aids to interpretation of statutes Back

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