INTERPRETATION OF STATUTE- LIFTING THE LEGISLATIVE VEIL? – WHOSE JOB?

 

 

By

 

VIJAY. K. KUMAR

SUPERINTENDENT OF CENTRAL EXCISE

 

Interpretation of the statute has been a difficult proposition for the officers as well as assessees in relation to Customs and Central Excise matters. The problem is today both the assessees and the officers are quite well informed and have access to tons of information and the ability to analyse. Gone are the days when the Inspector's word was law. In the (good) old days, when there was no ELT, no consultants and no information fusion; when the inspectors where not thinking and were not expected to think and the assessees were not well informed and did not have access to the law or the lawmen; when whatever the Board or Commissioner said through the Inspectors was accepted as the law. Today Inspectors are highly qualified with quite many engineers in the cadre and the assessees being well informed, law is not what the Board thinks it is ; law is what is interpreted by the courts and as understood by the very best brains. We are no more prepared to accept a view just because the words of the law say so or the Board circular says so. Every thing has to be legal, reasonable and stand the trial by the very best intellectual clan. ELT regularly carries articles not only by consultants and assessees but also by departmental officers where not only Board instructions but also the very Act is questioned. Recently there were a couple of articles, one by an appraiser and another by the top most law writing authority – the joint secretary in the TRU about the impossible situation of calculating CVD and SAD.

Are Customs and Excise laws in the country badly drafted? And how do you interpret them? Law making is a very difficult job and whatever precautions you take, there are bound to be certain loop holes, especially when searching for loop holes is a full time profession with those concerned even remotely with the law. When Dr. Johnson wrote his dictionary, a young girl told him that she was happy that he did not include the vulgar words in his dictionary. " Were you looking for them, my girl?" asked the great lexicographer. TRU's job is equally difficult. There are people ( including this writer) who look for the loopholes. Then what about the infirmities of the law? How do we live with them? The best solution is to put the draft for public scrutiny and analysis and then study the critical comments and make amends wherever necessary. But then law is often made in a hurry and there is not enough time to study the comments. Further Lawmakers often attain a level of arrogance where they do not accept other peoples' suggestions. So what do we do when the laws are not clear? Should we lift the legislative veil to look at the angelic face of law as it was conceived for it must be accepted that "The cardinal principle of law is that every law is designed to further the ends of justice but not to frustrate on the mere technicalities". We have created laws for social good, but we are so obsessed with the words of law( and perhaps rightly so) that we have become slaves to the words and fail to realise the purpose for which laws are made. It would be of some consolation to us that we are not alone in this. As they say it is a global phenomenon. Eminent judges all over the world had had occasions to correct the draftsman's mistakes. Let us see a few judicial comments on this.

 

It would be interesting to note the following passage in Maxwell on Statutes (10the Edn.) at page 229,

"Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.... Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used."

In Seaford Court Estates Ltd. v. Asher 1949-2 All ER 155 at p.164, Lord Denning made his now famous remarks,

"When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament ... and then he must supplement the written word so as to give force and life" to the intention of the legislature...A Judge should ask himself the question how if the makers of the Act had themselves come across this ruck in the texture of it, they would have strengthened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases."

Interestingly though the above observations of Lord Denning were disapproved in appeal by the House of Lords in 1951 (1)
All England Law
Reports 839 (HL), in India Justice Sarkar speaking for the Constitution Bench in M.Pentiah v. Muddala Veeramallapa 1961 (2) SCR 295 adopted that reasoning of Lord Denning. Lord Denning's views found favour with the Indian Judiciary as subsequently Hon'ble Chief Justice Beg, in Banglaore Water Supply v. A. Rajappa AIR 1978 SC 548 approved the observations with the words,

"Perhaps with the passage of time, what may be described as the extension of a method resembling the armchair rule in the construction of wills, Judges can more frankly step into the shoes of the legislature where an enactment leaves its own intentions in much too nebulous or uncertain a state".

It may be apt in this context, to recall the view expressed by Judge Frank in Guiseppi v. Walling, 144F (2d) 608 pp. 620, 622(CCA 2d, 1944) which is quoted in 60 Harvard Law Review 370, p. 372

"The necessary generality in the wordings of many statutes, and ineptness of drafting in others frequently compels the court, as best as they can, to fill in the gaps, an activity which no matter how one may label it, is in part legislative. Thus the courts in their way, as administrators in their way perform the task of supplementing statutes. In the case of courts, we call it 'interpretation' or 'filling in the gaps'; in the case of administrators we call it 'delegation' or authority to supply the details."

May be it is in this context that Board instructions attain the status of law.

Hon'ble Chief Justice Koka Subba Rao, speaking for the Bench in Chandra Mohan v. State of Uttar Pradesh & Ors. 1967 (1) SCR 77 has pointed out that the fundamental rule of interpretation is that " in construing the provisions of the Constitution or the Act of the Parliament, the Court will have to find out the express intention from the words of the Constitution or the Act, as the case may be... and eschew the construction which will lead to absurdity and give rise to practical inconvenience or make the provisions of the existing law nugatory".

Hon'ble Justice A.P. Sen. in Organo Chemical Industries v. Union of India 1980 (1) SCR 69 observed;

"A bare mechanical interpretation of the words 'devoid of concept or purpose' will reduce most of legislation to futility. It is a salutary rule, well established, that the intention of the legislature must be found by reading the statute as a whole."

Can there be judicial quotes without one from the most quoted Justice Krishna Iyer. In Chairman, Board of Mining Examination and Chief Inspector of Mines and Another v. Ramjee AIR 1977 SC 965, Justice Iyer in his inimitable effective style remarked "To be literal in meaning is to see the skin and miss the soul of the Regulation."

The Hon'ble Supreme Court Of India in DIRECTORATE OF ENFORCEMENT Versus DEEPAK MAHAJAN - 1994 (70) E.L.T. 12 (S.C.), observed,

True, normally Courts should be slow to pronounce the legislature to have been mistaken in its constantly manifested opinion upon a matter resting wholly within its will and take its plain ordinary grammatical meaning of the words of the enactment as affording the best guide, but to winch up the legislative intent, it is permissible for Courts to take into account of the ostensible purpose and object and the real legislative intent. Otherwise, a bare mechanical interpretation of the words and application of the legislative intent devoid of concept, purpose and object will render the legislature inane. In cases of this kind, the question is not what the words in the relevant provision mean but whether there are certain grounds for inferring that the legislature intended to exclude jurisdiction of the Courts from authorising the detention of an arrestee whose arrest was effected on the ground that there is reason to believe that the said person has been guilty of an offence punishable under the provisions of FERA or the Customs Act which kind of offences seriously create a dent on the economy of the nation and lead to hazardous consequences. Authorities, a few of which we have referred to above, show that in given circumstances, it is permissible for Courts to have functional approaches and look into the legislative intention and sometimes may be even necessary to go behind the words and enactment and take other factors into consideration to give effect to the legislative intention and to the purpose and spirit of the enactment so that no absurdity or practical inconvenience may result and the legislative exercise and its scope and object may not become futile.

The Supreme Court further observed that, " in interpreting a statute in its true spirit, the right direction should be to give a full and literal meaning to the language aiming ever to show fidelity to the meaningful purpose of the statute and never to make it sterile and impotent by giving a strict literal interpretation putting blinkers for judicial approach; because such interpretation will run counter to the legislative intent".

 

So it is the soul and not the body that matters, but who will search for the soul? Can the officers do it?. Best thing is to keep body and soul together. Easy said than done?

EXCISE LAW TIMES – 15.11.2001 – A 38