HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR

THE ROLE OF
PARLIAMENTARY AND
LEGISLATIVE HISTORY
IN THE
INTERPRETATION OF
INDIAN STATUTES
Interpretation of Statutes
Mani Yadav

Submitted to,
 THE ROLE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN
THE INTERPRETATION OF INDIAN STATUTES

Prof. Deboshree Sarkar

Interpretation of Statutes Page 1

 THE ROLE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN
THE INTERPRETATION OF INDIAN STATUTES

Table of Contents
INTRODUCTION......................................................................................................................2
UNDERSTANDING PARLIAMENTARY AND LEGISLATIVE HISTORY........................3
IS LEGISLATIVE HISTORY BINDING?...............................................................................3
LEGISLATIVE HISTORY AND LEGISLATIVE INTENTION.............................................4
REASONS FOR THE COURT'S USAGE OF LEGISLATIVE HISTORY.............................4
THE USE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN THE
INTERPRETATION OF INDIAN STATUTES: WITH REFERENCE TO CASE LAWS.....5
REFERENCE TO PROCEEDING OF LEGISLATURE WHILE DISCUSSING THE
CASE LAWS..........................................................................................................................5
CONCLUSION........................................................................................................................11
BIBLIOGRAPHY....................................................................................................................12

Interpretation of Statutes Page 2

 THE ROLE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN
THE INTERPRETATION OF INDIAN STATUTES

INTRODUCTION
Interpretation is as ancient as language. Highly structured “rules of interpretation” were
developed at a very primitive stage of the Hindu civilization. Interpretation is a knack of
finding out the object of an enactment by construing the words in their natural and ordinary
meaning. The Court is not supposed to interpret arbitrarily and thus certain basic principles
have been evolved. These principles are described as ‘rules of interpretation’. Its object is to
ascertain the intention of the legislature communicated expressly or impliedly in the language
used. As stated by Salmond,

"By interpretation or construction is meant, the process by which the courts seek to ascertain
the meaning of the legislature through the medium of authoritative forms in which it is
expressed."

When the words in a statute are unclear, it is the task of the court to interpret it by referring to
internal as well as external aids. Apart from the intrinsic aids such as preamble and the
purview of the act, the court considers resources beyond the act, called extrinsic aids. They
mainly deal with the history of the act.

But this historical setting is not used as an aid if the wording is clear. If there is some
ambiguity wording of the statute, the historical setting may be taken into account in order to
achieve the proper construction. Historical setting includes parliamentary history, historical
facts, statement of objects and reasons, report of expert committees and so on.

Interpretation of Statutes Page 3

 THE ROLE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN
THE INTERPRETATION OF INDIAN STATUTES

UNDERSTANDING PARLIAMENTARY AND LEGISLATIVE

HISTORY
Parliamentary history stands for the procedure by which an act is enacted. This contains
conception of an idea, drafting of the bill, the debates, the amendments etc. Speech made
during over of the bill, amendments contemplated during the progress of the bill are
considered in parliamentary history while the papers sited before the cabinet which
pronounced for the introduction of the bill are not germane since these papers are not cited
before the parliament.

Legislative history means -

(i) The constitutional provision under consideration's legislative antecedents, i.e.,

analogous clauses of previous enactments that have been repealed and re-enacted with or
without amendment.

(ii) Pre-parliamentary documents pertaining to the provision or statute under which it is

found, such as committee and commission records

(iii) Parliamentary materials

IS LEGISLATIVE HISTORY BINDING?

This notion is completely rejected. On contrary, there is a very vast prevalence of consent
that history of legislation is just a mechanism with acts as a "guiding function" for the courts.
Varied opinions arise regarding the relative importance to be provided to the previous
interpretative method with respect to various methods. Advocates of legal discourse theory
suggest a ranking that usually brings forward the arguments based on “legislative intent”
higher than others. Furthermore, increasing scholars and thinkers are of the view that while a
straightforward duty of the courts to believe in legislative history might not exist at all
whereas, an obligation to refer the materials does1.

1
Kenneth R. Dortzbach, Legislative History: The Philosophies of Justices Scalia and Breyer and the Use of
Legislative History, http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1486&context=mulr

Interpretation of Statutes Page 4

 THE ROLE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN
THE INTERPRETATION OF INDIAN STATUTES

Interpretation of Statutes Page 5

 THE ROLE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN
THE INTERPRETATION OF INDIAN STATUTES

LEGISLATIVE HISTORY AND LEGISLATIVE INTENTION

It is important to differentiate between legislative history and legislative intent.

According to Black's Law Dictionary legislative intent2 means "the design or plan that the
legislature had at the time of enacting a statute."

It does not disclose the exact meaning of each term, but it does provide courts with a means
to choose between conflicting meanings. Few schools of legislative understanding contend
that the court's responsibility is to ascertain and maintain the legislature's purpose, while
others argue that the nature of a common intention, and the need to determine it, even though
it does exist, is unnecessary.

According to Black's Law Dictionary legislative history3 means

"The back ground and events leading to the enactment of a statute, including hearings
committee reports, and floor debates."6

In the beginning of the definition- "the background and events" is in fact broader than the
general perception of legislative history and, if it were not restricted by the remainder of the
definition, would appear to cover more than the documents drafted during the legislative
process. It includes the "documents legislatures generate in the course of enacting statutes.

REASONS FOR THE COURT'S USAGE OF LEGISLATIVE HISTORY

Many scholars have tried to understand the motive of judges for citing legislative history. The
usage of legislative history is motivated by a combination of legal and ideological
considerations.

Usually, the legal variables have a considerably greater impact on the possibility of
legislative history use than the ideological variables, but the influence of the ideological
variables cannot be denied. The intricacy of a statute amplifies the likelihood of legislative
2
Black's Law Dictionary, at 919.

3
Black's Law Dictionary, at 919.

Interpretation of Statutes Page 6

 THE ROLE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN
THE INTERPRETATION OF INDIAN STATUTES

history usage, while routinely amended statutes are less prone to obtain such treatment.

The statute's age is also significant, although the result is neither sequential nor monotonous:
exceedingly recent and old laws are less able to derive statutory history usage than
intermediate-aged statutes. The details further suggest that one justice's use of legislative
experience leads other justices to respond in a similar fashion.

When it comes to the impact of partisan considerations, liberal justices are more likely to use
legislative precedent than conservative justices. As a consequence, since the mid-1980s, a
reduction in the overall use of constitutional precedent has coincided with a rightward change
in the conservative makeup of the Court.

THE USE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN

THE INTERPRETATION OF INDIAN STATUTES: WITH
REFERENCE TO CASE LAWS
“The parliamentary history may be referred for ascertaining the intention, but not for
construction, is pedantic. In fact all such material out freely to be referred to and it is only by
resort to such material that the object of the legislation and how the legislature intended to
achieve that object by the particular statute can be correctly ascertained by the court 11.” The
reliance which is placed on legislative history by the courts in determining an issue can be
seen in many case laws.

REFERENCE TO PROCEEDING OF LEGISLATURE WHILE DISCUSSING

THE CASE LAWS

In Administrator-General of Bengal v. Premlal Mullick 4, the question was whether a Hindu

executor was a “private executor” within the meaning of Section 31 Administrator General’s
Act, 1874. The Privy Council held reversing the High Court, that he was a “private executor”
within the meaning of Section 31 of the Act. Their Lordships observed:

4
ILR (1895) 22 Cal 788

Interpretation of Statutes Page 7

 THE ROLE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN
THE INTERPRETATION OF INDIAN STATUTES

“The two learned Judges, who constituted the majority in the appellate court, although they
do not base their judgement upon them, refer to the proceedings of the legislature which
resulted in the passing of the Act of 1874 as legitimate age to the construction of Section 31.
Their Lordships think it right to express their dissent from that proposition. The same
reasons which exclude these considerations when the clauses of an Act of the British
Legislature are under construction are equally cogent in the case of an Indian statute.

In A. Thangla Kunju Musaliar v. M. Venkatachalarn Patti 5, the questions were whether

Section 5(1) of the Travancore Taxation on Income (Investigation Commission) Act, 1124
(ME) was discriminatory and whether the Commission had authority to investigate any case
suo moto. It was observed:

The question at once arises as to why it was that the legislative authority took the view that
there were possible cases of tax evasion. It has been said that although the statement of the
objects and reasons appended to a bill is not admissible as an aid to the construction of the
Act as passed, yet, it may be referred to only for the limited purpose of ascertaining the
conditions prevailing at the time which necessitated the making of the law.

In S C. Prashar v. Vasantsen Dwarkadas6, S.K. Das, J. observed: The statement of objects

and moons for introducing a particular piece of legislation cannot be used for interpreting
the legislation if the words used therein are clear enough. But the statement can be referred
to for the purposes ascertaining the circumstances which led to the legislation in order to
find out what was the mischief which the legislation aimed at.

And Kapur, J. observed:

In construing an enactment and determining its true scope it is permissible to have regard to
all such factors as can legitimately be taken into account to ascertain the intention of the
legislature such as the history of the Act, the reason which led to its being passed, the
mischief which had to be cured as well as Site cure as also the other provisions of the statute.
This is the rule in Heydon case".

5
AIR 1956 SC 246
6
AIR 1963 SC 1356

Interpretation of Statutes Page 8

 THE ROLE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN
THE INTERPRETATION OF INDIAN STATUTES

Taking this premise into effect, it seems like the object of the amendment was to validate
those notices released after the 1959 amendment and after an eight-year duration had accrued
after the end of the assessment year, and thus to nullify the effect of the Calcutta judgement
in the Debi Dutta Moody case.

In Balchand Jain v. State of M.P7. for holding that an order for anticipatory bail could be
issued under Section 438, Criminal Procedure Code, 1973, to a person apprehending arrest
under Rule 184 of the Defence and Internal Security of India Rules, 1971, the Court relied on
the legislative history of the provision and on the recommendations of the Law Commission
and observations in the Law Commission Report.

In Emperor v. Benoari Lal Sarma819, Rownand, J. observed:

Sen, J. ,has said in his judgement that it is not open to us to take into account historical facts
or any extraneous evidence either as to whether an emergency existed or whether the
Governor General had judged an emergency to have arisen.

But according to Lord Halsbury in Powell v. Kempton Park Racecourse Co., such topics as
the history of legislation and the facts which give rise to the enactment may usefully be
employed to interpret the meaning of the statute, though they do not afford conclusive
argument.

In State of Travancore-Cochin v. Bombay Co. Ltd9, the respondents claimed exemption from
sales tax on the ground that their commodities to foreign buyers in CIF or FOB contracts
were sales "in the course of export of the goods out of the territory of India” within the
meaning of Article 286(b) of the Constitution. The High Court held the case leaning for the
respondents. The Supreme Court confirmed the Judgment, but observed:

“The use made by the learned Judges below of the speeches made by the members of the
Constituent Assembly in the course of the debates on the Draft Constitution is unwarranted.
That this form of extrinsic aid to the interpretation of statutes is not admissible has been
7
(1976) 4 SCC 572
8
AIR 1943 FC 36
9
AIR 1952 SC 366

Interpretation of Statutes Page 9

 THE ROLE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN
THE INTERPRETATION OF INDIAN STATUTES

generally accepted in England, and the same rule has been observed in the construction of
Indian statutes.” The reason behind the rule was explained by one of us in A.K. Gopalan v.
State of Madras10.; thus:

'A speech made in the course of the debate on a Bill would at best be indicative of the
subjective intent of the speak, but it could not reflect the inarticulate mental process lying
behind the majority vote which carried the Bill. Nor is it reasonable to assume that the minds
of all the legislators were in accord.

It is more tersely put in United States v. Trans-Missouri Freight Assn11:

“Those who did not speak may not have agreed with those who did; and those who spoke
might differ from each other.”

The rule of exclusion has not always been adhered to in America, and sometimes distinction
is made between using such material to ascertain the purpose of a statute and using it for
ascertaining its meaning. It would seem that the rule is adopted in Canada and Australia.

In State of Bihar v. Khas Karanpura Collieries Ltd 12, while holding that Section 30-A was
inserted retrospectively by Act 15 of 1958 in the Mines and Minerals (Regulation and
Development) Act, 1957 and that it gave temporary immunity front the applicability of
Sections 9(0 and 16(1) of the Act to statutory mining leases until the Central Government by
notification made the provisions applicable with or without modification to such leases, the
Court observed:

“There can be no room for doubt that the legislature intended that Section 30-A of the 1957
Act should cover the aforesaid statutory leases as well. It will be apposite in this connection
to refer to the statement of objects and reasons given in the Bill which sought to introduce
Section 30-A in the 1957 Act with retrospective effect which can be usefully resorted to for
10
AIR 1950 SC 27
11
169 US 290 (1897)
12
(1976) 4 SCC 134

Interpretation of Statutes Page 10

 THE ROLE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN
THE INTERPRETATION OF INDIAN STATUTES

ascertaining the true scope of the section and the extent of the protection afforded by it.”

The Explanatory Memorandum attached to the Rules, is in the nature of Statement of Objects
and Reasons, and may be referred to P.S. Mahal v. Union of India13:

“The aids which Parliament availed of such as the report of a special committee preceding
the enactment, existing state of the law, the environment necessitating the enactment of the
legislation, and the object sought to be achieved, are useful for deciphering the real intention
of the Parliament and therefore cannot be denied to the court.

Therefore, reports of the committee which preceded the enactment of legislation, reports of
joint parliamentary committees, report of a commission set up for collecting information
leading to the enactment are permissible external aids to construction."

Report of joint Select Committee on Bill to amend the Act was referred to see the object and
purpose.

In Narain Khamman V. Parduman Kumar Jain14., it was held that:

“Though the Statement of Objects and Reasons accompanying a legislative Bill cannot be
used to determine the true meaning and effect of the substantive provisions of a statute, it is
permissible to refer to the Statement of Objects and Reasons accompanying a Bill for the
purpose of understanding the background, the antecedent state of affairs, the surrounding
circumstances in relation to the statute, and the evil which the statute sought to remedy.”

In Bachan Singh v. State of Punjab 15, it was observed that: “constitutional law raises, in a
legal context, problems of economic, social, moral and political theory and practice to which
non-lawyers have much to contribute. When judges are confronted by issues to which there is
no legal answer, there is no reason (other than a desire to maintain a fiction that the law
provides the answer) for judicial discretion to be exercised in a vacuum, immune from non-
legal learning and extra-legal dispute. The judges must also consider while deciding an issue
13
(1984) 4 SCC 545
14
(1985) 1 SCC 1
15
(1980) 2 SCC 684

Interpretation of Statutes Page 11

 THE ROLE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN
THE INTERPRETATION OF INDIAN STATUTES

of constitutional adjudication as to what would be the moral, social and economic

consequences of a decision either way.”

In Special Reference No. z of 2002, Re, (Gujarat Assembly Election matter 16) the debates in
the Constituent Assembly on Articles 85 and 174 was looked into. Khare, J. (as the learned
Chief Justice then was) referred to Kesavananda Bharti17 cases “in support of the proposition
that the Constituent Assembly Debates are permissible aids in construction to ascertain the
intention of the Constitution.” The learned Judge observed as follows: “One of the known
methods to discern the intention behind enacting a provision of the Constitution and also to
interpret the same is to look into the historical legislative developments, Constituent
Assembly al provision.”

In Kesavananda Bharti v. State of Kerala, it was held that, “Constituent Assembly Debates
although not conclusive, yet show the intention of the framers of the Constitution enacting
provisions of the Constitution and the Constituent Assembly Debates can throw light in
ascertaining the intention behind such provisions.” Reference to Constituent Assembly
Debates in interpreting a Constitutional provision: In Kesavananda Bharti v. State of Kerala,
H.R. Khanna, J. observed that “the speeches in the Constituent Assembly can be referred to
for ascertaining the history of the constitutional provision.”

In Fagu Shaw v. State of W.B 18 Bhagwati, J. observed: “It was at one time thought that the
speeches made by the members of the Constituent Assembly in the course of the debates on
the Draft Constitution were wholly inadmissible as extraneous aids to the interpretation of a
constitutional provision, but of late there has been a shift in this position and following the
recent trends in juristic thought in some of the Western Countries and the United State, the
rule of exclusion rigidly followed in Anglo-American jurisprudence has been considerably
diluted.”

In Ashoka Kumar Thakur v. Union of India 19, while justifying the separate treatment given

16
(2002) 8 SCC 237
17
(1973) 4 SCC 225
18
1974) 4 SCC 152
19
(2008) 6 SCC 1

Interpretation of Statutes Page 12

 THE ROLE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN
THE INTERPRETATION OF INDIAN STATUTES

to minority institutions on the basis of constitutional provision the Court observed that it is a
settled position that in statutory interpretation external aids have only a limited use.

Interpretation of Statutes Page 13

 THE ROLE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN
THE INTERPRETATION OF INDIAN STATUTES

CONCLUSION

The conception that the legislative history must be sternly adhered to barely has any
advocates now a days. It is just a tool and "aid" or "guide" as stated in Pepper v. Hart20 -“To
better understand ambiguous provisions”.

“Now the discussion has thus swung towards ascertaining the significance given to it. There
exist no universal rules on the interpretation of legislative. It is, though, a worthwhile duty for
academics of legal to examine the chances and confines of a hierarchical order of various
materials of legislative, varying from preparatory reports by expert panels to commentary by
the Ministry. Besides, judges and legal scholars should observe the detail process of how
statutes are made in order to be in a better position to consider their value”21.

So far as the Indian judiciary is concerned they have tried to clear the position of these
external sources by way of verdicts.

20
[1993] AC 593
21

Interpretation of Statutes Page 14

 THE ROLE OF PARLIAMENTARY AND LEGISLATIVE HISTORY IN
THE INTERPRETATION OF INDIAN STATUTES

BIBLIOGRAPHY

Statutes Referred
 Constitution of India, 1949

 Criminal Procedure Code, 1973

Articles Referred
 Fleischer, Holger, Comparative Approaches to the Use of Legislative History in
Statutory Interpretation, http://ssrn.com/abstract=1920184
 Kenneth R. Dortzbach, Legislative History: The Philosophies of Justices Scalia and
Breyer and the Use of Legislative History,
http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1486&context=mulr
 http://ijtr.nic.in/articles/art21.pdf
 http://www.lawyersclubindia.com/articles/Interpretation-of-
Statute5430.aUwTmSwSN
 http://www.nhs.vic.edu.au/library/legaldate/LegalDate_Vol_19_No_2_May_2007.pdf
 http://caaa.in/Image/Interpretation%20of%20Statutes.pdf

Interpretation of Statutes Page 15