Dr.

Shailendra Kumar
 According to Salmond, “Interpretation” is the process by which
the court seeks to ascertain the meaning of the legislature through
the medium of authoritative forms in which it is expressed.
 Barnett, “Interpretation is the activity of determining the
linguistic meaning of a legal text.”
 Parenis, “Interpretation is the linguistic or semantic meaning of
contextual legal text.”
 Interpretation of statutes is the process of understanding correct
law.
 This process is adopted by the courts for determining the exact
intention of the legislature. Because the objective of the court is
not only merely to read the law but is also to apply it in a
meaningful manner to suit from case to case.
 It is used for ascertaining the actual connotation of any Act or
document with the actual intention of the legislature
 The term “ Interpretation” derived from the Latin
term ‘interpretari’, which means to explain, expound,
understand, or to translate.
 Interpretation is the process of explaining, expounding
and translating any text
 The Interpretation basically involves an act of
discovering the true meaning of the language which has
been used in the statute.
 Various sources are used to explore, clarify, what
exactly has been indicated by the words used in the
written text or the statutes.
 The process of determining what a particular statute means so that a
court may apply it accurately is interpretation of Statutes.
 A 'statute' is generic and collective, while 'act' is specific and singular.
An act is thus a statute, and the acts generated by a legislative body are
collectively referred to as satutes, but 'act' is normally used in the
formal title of a statute. You could thus talk about 'the statute on rural
land use planning' or 'the statutes regarding rural land use planning', but
the title(s) of the actual statute(s) would be something such such as
'Rural Land Use Planning Act'

 Legal formalism- A theory that legal rules stand separate from other
social and political institutions. According to this theory, once
lawmakers produce rules, judges apply them to the facts of a case
without regard to social interests and public policy. In this respect,
legal formalism differs from legal realism. Either theory can be
understood in a descriptive way, prescriptive way, or both ways at once.
 Legal realism- A theory that all law derives from prevailing
social interests and public policy. According to this theory,
judges consider not only abstract rules, but also social
interests and public policy when deciding a case. In this
respect, legal realism differs from legal formalism. Either
theory can be understood in a descriptive way, prescriptive
way, or both ways at once.
 Descriptive- The nature of a statement that claims to
describe reality. A descriptive theory is one that claims to
describe how things really are, as opposed to how they
should be.
 Prescriptive-The nature of a statement that prescribes
how things ought to be. A prescriptive theory is one that
says how people or things should function, as opposed to
how they actually do
 Meaning of a Statute:
 Statute is defined as the source of law which consists in
declaring the legal rules by a competent authority.
 It may also be defined as the means by which the legislature
formulates its final will.
 According to Halsbury’s, “Statute means a pronouncement
by the sovereign in the Parliament, the effect of which is
either to declare a law or change the law formally.”
 In the words of Bouvier, “Statute means a law established
by an act of the legislature.”
 According to Black’s Law Dictionary (6th ed.) “A Statute is
a formal written enactment of a legislative authority that
governs a country, state, city, or county. Typically, statutes
command or prohibit something, or declare policy.”
 Importance of a Statute:
 To create a new law and repeal existing laws.
 To anticipate emergencies and make laws for the same.
 Superior source of law and is easily accessible.
 Continues to be in operation unless repealed.
 It lays down law before the case arises.
 Statutory laws are more effective and efficient due to
separation of powers.
 Disadvantages of a Statute:
 Takes a long time to be formed.
 It is confusing and ambiguous for laymen.
 It is a good master but a bad servant.
 It is not easy to be repealed as it involves permission of
both houses of legislature.
 Parts of a Statute:
 Title: Any statute begins with the title assigned to it. It basically gives
an impression as to what a statute is all about. It is of two types:
 Short Title: It includes the main title of a statute. It is the formal name
given to a statute. Eg: The Indian penal Code, 1860.
 Long Title: This is more descriptive and is usually used to define the
purpose and effect of legislation. It is generally placed before the
Preamble.
 Preamble: It is an important part of the statute and explains the reason
for the enactment of the state. It contains the objects and the purpose
the statute seeks to achieve. It helps the lawmakers to understand the
scope and limitations of the statute as well.
 Definition Clause: Also known as the interpretation clause; usually
provides the scope and defines the various words used in a statute. The
basic object of any definition is to:
 Explain the meaning of different words,
 Shorten the language to be used in a statute,
 Give official meaning to words.
 The various types of definition are as follows:
 Restrictive Definition: A definition which restricts the scope of a
definition and applies to a particular thing. Basically these definitions
contain the words ‘mean.’
 Extensive Definition: It is a definition which elaborates the meaning of
words. Basically these definitions include the words ‘to include.’
 Ambiguous Definition: A definition which is available for own
interpretation. Eg: Sec. 2 (o) of The Monopolies and Restrictive Trade
Practices Act, 1969 in Telco v. Registrar of Restrictive Trade Agreements
AIR 1977 SC 973 restrictive trade practice is to be understood by applying
the rule of reason.
 Headings: Each statute is divided into various parts and all the parts have
sections and sub sections. When each of the parts and sections have a
separate identification, it is known as heading. These headings play an
important role in understanding the parts in which the statute is divided.
 Marginal Notes: These notes appear on the left hand side of the section. If
any section is ambiguous, it can be understood with the help of these notes.
It is basically the explanation of the section in simple words.
 Section: The various parts in which s statute is divided is known as a
section. However, International and Constitutional Law are exceptions as
they contain Articles.
 Punctuation Marks: If a statute is carefully punctuated, then there is no
doubt about the meaning of the expression contained within the statute.
These marks are important because with the help of these marks, the true
intention of the legislature is known.
 Illustrations: It explains the principles laid down in the section. They are
helpful for the reader because with the help of these marks, the students get
to know about the section and any doubt regarding the sections are
removed with the help of them.
 Provisos: They are attached to any section for the purpose of explanation,
subtraction or addition of the provisions to the sections. It should be read
along with the complete section in order to have an entire understanding of
the section. Provisos generally begin with the words ‘provided with.’
 Exception: These are basically the safeguards inserted in along with the
main provisions of the statutes in order to provide clarity to the provisions
contained within the statute and enumerates the exceptional circumstances
as well.
 Explanation: These are used to clarify the various provisions of a statute
where it is contradictory to the provisions of the statute. It basically throws
light upon the particular provisions of a particular section of a statute.
 Schedules: They are basically the special provisions given to the existing
provisions of a statute. It gives additional powers to the existing provisions.
 On the basis of Duration:
 Temporary Statutes: A statute is said to be of
temporary nature when the duration is only for a
specified time period and expires on the expiry of the
period unless repealed earlier. Eg: The Finance Act,
Annual Budget, Emergency Laws.
 Permanent/Perpetual Statutes: Statutes are deemed
to be permanent or perpetual when no time is fixed for
its duration and such a statute remains in force until it
is repealed. Eg: The Indian Penal Code, 1860
 On the basis of Nature of Operation:
 Prospective Statutes: A statute which operates upon the acts and
transactions which have occurred when the statute takes effect.
Eg: The Money Laundering Act, 2002.
 Retrospective Statutes: A statute which covers the past events
and even provides for the remedies for the same although enacted
after the occurrence of the event is known as a retrospective
statute. Eg: Article 20(3) of the Indian Constitution, 1950.
 Directory Statutes: Any statute which merely directs or permits
a thing to be done without any compulsion and doesn’t impose
any penalty on the non-observance of the provisions, it is a
directory statute. Eg: The Directive principles of State Policy.
(Part IV)
 Mandatory Statutes: Statutes which compel the performance of
things or imposes any duty to do certain things in a certain
manner, it is known as a mandatory statute. In the case of H. V.
Kamath v. Ahmad Ishaque AIR 1955 SC 233, it was observed
that mandatory provisions must be strictly adhered to but
directory provisions are for substantive compliance only
 On the basis of Application:
 Public Statutes: These statutes are those which relate
to public policy or the local people in general.
 Private Statutes: These statutes concern the matters of
individual nature which has no public consequence.
Private statutes are basically made by the Parliament on
individual petitions for redressal of private grievances.
 It is important to note that in England, public statutes
don’t need to be proved before the court of law.
 On the basis of Object:
 Codifying Statute: It is a statute which codifies the law and presents
an orderly and authoritative statement of rules of law on a particular
subject. Such statues aim to present an orderly and authoritative
statement of the leading rules of law on a given subject. The draftsmen
tries to incorporate the pre-existing statutory provisions and common
law principles as well. Eg: The Hindu Succession Act, 1956.
 Consolidating Statute: It is a statute which consolidates the law on a
particular subject at one place and collects all the statutory enactments
of a specific subject in a single statute. Eg: The Code of Criminal
Procedure, 1973. The main purpose of this statute was to present the
whole body of statutory law on a subject completely repealing the
earlier statute.
 Declaratory Statute: It is a statute which removes the doubts in
common law. Such statutes becomes necessary when the expressions in
the common law statutes are ambiguous in nature. In the case of The
Central bank of India v. Their Workmen AIR 1960 SC 12 it was held
that a declaratory statute contains the words enacted, declared and also
the Preamble and its main object is to remove the doubts in law. Eg:
Explanation of Sec. 40 of The Income Tax Act was added by the
Income Tax Amendment Act, 1961
 Remedial Statute: It is a statute where a new favour or a
new remedy is conferred. The main object of the statute is
to make improvements in the enforcement of one’s rights or
redress wrongs or remove defects and mistakes in former
laws. These statutes receive liberal construction and doubts
are resolved in the favour of the persons for whose benefit
the statute is enacted. Eg: The Employees Compensation
Act, 1923; The Maternity Benefit Act, 1961.
 Enabling Statute: These statutes enlarge common law
where it is narrow. It makes the doing of something lawful
which would otherwise be unlawful. The legislature by such
statutes enables things to done. In the case of Bidi Leaves &
Tobacco Merchants Association v. State of Bombay AIR
1962 SC 486 it was held that enabling statutes not only
empowers but also ensures to do indispensable things for
carrying out the object of the statute. Eg: Sec. 49A (1) and
49A (2) of The Advocates Act, 1961; The Right to
Information Act, 2005
 Disabling Statute: Statutes which cut down or restricts the rights
conferred by common law and restrains the same. Eg: The
UPZALR Act, 1950.
 Penal Statute: Statutes which punish certain acts or wrongs.
Such statutes are generally in the form of comprehensive
criminal code or large number of sections providing punishments
for various wrongs. Eg: The Indian Penal Code, 1860; The Food
Adulteration Act, 1954.
 Taxing Statute: Statutes which impose taxes on certain
transactions or incomes are known as taxing statutes. The object
of the statute is to collect revenue for the government. Taxes are
generally collected for public purposes leading to revenue
generation in a state. Eg: The Income Tax Act, 1961.
 Explanatory Statute: It is a statute which explains the law. It is
generally enacted to supply an omission or clarify ambiguity
regarding the meaning of the expressions used in the statute. Eg:
The Royal Mines Act, 1688 in Britain was re-enacted for better
explanation by The Royal Mines Act, 1963
 Amending Statute: An amendment is a legislative act which is
designed to change some prior or existing law by either adding or
subtracting some provisions. It is a statute which makes an
addition to or operates to change the original law and effect
improvement to carry out the purposes of the law more
effectively. Eg: The Criminal Law Amendment Act, 1983 & 2013
 Repealing Statute:It is a statute which repeals or revokes the
earlier statute. The repeal or revocation may be express or
implied; but the language should clearly state the necessary
implications as well. Eg: Cr.P.C, 1973 repealed and re-enacted
Cr.P.C, 1898.
 Curative/Validating Statute: Such statutes are passed to cure
defects in the existing laws or validate the legal proceedings. The
purpose of these Acts are to remove the cases of ineffectiveness
or invalidity of actions or proceedings
 Sir John Salmond says
 "A precedent, therefore, is a judicial decision which
contains in itself a principle. The underlying principle
which thus forms its authoritative element is often
termed the ratio decidcadi. The concrete decision is
binding between the parties to it, but it is the abstract
ratio decidendi which alone has the force of law as
regards the world at large.“
 The phrase ratio decidendi means “the reason/or the
decision”
 The phrase sometimes signifies the rule of law
propounded by the judge as the basis of his ultimate
decision of the case.
 The concept, embraces both the explicit formulation by
the judge of a proposition, and the implicit formulation.
 The phrase is sometimes used to mean the rule of law
for which a case is of binding authority. This is the
meaning attributed to the phrase by Salmond.
 Ratio decidendi is a latin maxim meaning "the reasons
for the decision", they are the principles a judge uses
while pronouncing the judgment, generally delivered at
the end of a case and it explains the reasons for the
decision.
 The doctrine of judicial precedent would not be able to
operate if it were not for the requirement that the legal
reason for past decisions must be stated. It is this part
of the judgement which sets a precedent for other
judges to follow.
 Obiter dicta meaning "other things said", it is very
similar to ratio decidendi except it does not form a
binding precedent, even though it may sometimes be
helpful and influential but are not binding
 Goodheart- He does not accept the classical view that ratio is the
principle of law which links the essential determination of the
case with the essential or material facts of it and the statement of
the judge may or may not do that or may be formed too widely or
too narrowly.

 In Krishna Kumar v. Union of India- AIR 1990 SC 1782, The

ratio decidendi is the underlying principle, namely, the general
reasons or the general grounds upon which the decision is based
on, the test or abstract from the specific peculiarities of the
particular case which gives rise to the decision.
 The ratio decidendi has to be ascertained by an analysis of the
facts of the case and the process of reasoning involving the major
premise consisting of a pre-existing rule of law, either statutory
or judge-made, and a minor premise consisting of the material
facts of the case under immediate consideration. If it is not clear,
it is not the duty of the court to spell it out with difficulty in order
to be bound by it
 The ratio decidendi may be defined as a statement of
law applied to the legal problems raised by the facts as
found, upon which the decision is based. The other
elements in the decision are not precedents.
As per theory of precedents every decision contains three basic ingredients:
(i) findings of material facts, direct and inferential. An inferential finding, of
facts is the inference which the Judge draws from the direct, or perceptible
facts,
(ii) statements of the principles of law applicable to the legal problems
disclosed by the facts,
(iii) Judgment based on the combined effect of (i) and (ii).

 For the purposes of the parties themselves and their privies, ingredient No.
(iii) is the material element in the decision for it determines finally their
rights and liabilities in relation to the subject-matter of the action. It is the
judgment that estops the parties from reopening the dispute.
 However for the purposes of the doctrine of precedents, ingredient No. (ii)
is the vital element in the decision. This indeed is the ratio decidendi. It is
not everything said by a judge when giving judgment that constitutes a
precedent. The only thing in a judge's decision binding a party is the
principle upon which the case is decided and for this reason it is important
to analyse a decision and isolate from it the radio decidendi.
 Dalbir Singh & Ors vs State Of Punjab, 1979 AIR 1384 (Para6)
 The law of torts would be much the poorer if Lord
Atkin had refrained from announcing his neighbour
principle in Donoghue v Stevenson. It may well be that
such broad principles and policies are the necessary
raw material for the making of analogical judgments
which enable the precedent system to work in practice.
However, such broad pronouncements are not binding:
their authority depends entirely upon their inherent
rational appeal and upon the prestige of their authors.
 Classical theory- The ratio decidendi of a case is
’the principle of law propounded by the judge as the
basis of his decision.
 The definitions imply that the determination of the
ratio decidendi is not an unduly difficult task: first one
searches the precedent for a convenient statement of a
rule, then one ensures by an appropriate test that this
rule was actually the basis of the decision rather than a
mere obiter dictum, and then one applies the rule to the
facts of later cases, rather as one would apply a
statutory provision.
 Bentham, who condemned the common law for its
uncertainty, its arbitrariness and its lack of political
legitimacy. His version of the rule of precedent was:
’Follow it unless it is most evidently contrary to what
you like.
 Bentham, denied the binding force of precedent, but
saw the resulting judicial freedom as a positive,
creative force which kept the legal system open to great
and, perhaps, changing values and new influences, and
enabled it to adapt to changing circumstances.
 Goodhart suggested that the true ratio consisted of the
material facts of the case plus the actual ruling of the
court.
 The principle of the case can be found by determining
(a) the facts treated by the judge as material, and (b) his
decision based on them.
 One must distinguish between the facts adopted by the
precedent judge and the true facts. The true facts are
those events which have actually occurred and those
circumstances which actually exist or have existed
 Ration decidendi can be determined or
identified in the following ways: •
 By distinguishing material facts from
unimportant facts.
 By discovering the precedents applied to
identify the court’s approach. •
 By restricting analysis to the majority
opinions.
 By reading out subsequent decisions and
considering it at several levels.
 Ratio decidendi also involves the holding of a particular
case, thereby allowing future cases to build upon such
cases by citing precedent. However, not all holdings are
given equal merit; factors that can strengthen or weaken
the strength of the holding include:
 Rank of the court (Supreme Court versus an appellate
court) •
 Number of issues decided in the case (multiple issues may
result in a so-called "multilegged holdings")
 Authority or respect of the judge(s)
 Number of concurring and dissenting judges
 New applicable statutes •
 Similarity of the environment as opposed to the age of the
holding
 Overruling implies disapproval with the ratio
in a previous case, either that the previous
Court did not correctly interpret the law or
because the latter court considered the Rule
of Law contained in the previous ratio to be
no longer desirable.
 Reversing is the overturning of a decision on
appeal in the same case. It involves
disapproval of the ratio as decided by the
lower court.
 The inversion test propounded by Wambaugh is based on
the assumption that the Ratio decidendi is a general rule
without which a case must have been decided otherwise
 1. Frame carefully the supposed proposition of law
 2. Insert in the proposition a word reversing its meaning
 3. Inquire whether, if the court had conceived this new
proposition to be good and had it in mind, the decision
could be the same.
 4. If the answer is affirmative, the however excellent the
Original proposition may be, the case is not a precedent
for that proposition.
 5. But if the answer is negative, the case is a precedent for
the original proposition and possibly for other proposition
also.
 Overruling-
 Reversing-
 Distinguishing
 Overruling :
 This is where a court higher in the hierarchy
departs from a decision made in a lower court.
Then the previous decision is no longer binding
 Reversing :
 This is where a higher court departs from the
decision of the lower court on appeal..
 Distinguishing :
 This is where the facts of the case are
deemed sufficiently different so that the previous
case is no longer binding
 Order by consent of the parties :
 The court can pass orders by consent
of the parties. Those orders are not
adjudication of the rights and liabilities of the
parties. That decision does not lay down any
principle. Those orders are not precedent
 Per incuriam decisions mean where the court has acted in
ignorance of a previous decision of its own or of a court of
coordinate jurisdiction or when the decision is given in
ignorance of the terms of a statute or a rule having statutory force.
 State of Bihar Vs. Kalika Kuer alias Kalika Singh &
others (2003) 5 SCC 448
 “A decision is given per incuriam when the court has
acted in ignorance of a previous decision of its own or of a
court of coordinate jurisdiction which covered the
case before it, in which case it must decide which case to
follow; or when it has acted in ignorance of House of
Lords decision, in which case it must follow that
decisions; or when the decision is given in ignorance of
the terms of a statute or rule having statutory
force.”
 The principle of stare decisis can be divided into two
components.
 The first is the rule that a decision made by a superior
court is binding precedent (also known as mandatory
authority) which an inferior court cannot change.
 The second is the principle that a court should not
overturn its own precedents unless there is a strong
reason to do so and should be guided by principles from
lateral and inferior courts.
 The second principle, regarding persuasive precedent, is
an advisory one which courts can and do ignore
occasionally.
 In order for the doctrine of stare decisis to be applicable,
there are two basic prerequisites, first that there must be
authentic reporting of decisions of courts. The second
requirement is an established hierarchy of courts.
 If there is conflict between the decision of les
ser bench,then law laid down by the larger be
nch will be binding.
 “Central Board of Dawoodi Bohra Communi
ty v. State of Maharashtra, (2005) 2 SCC 67
3”
 “The law laid down by this Court in a decision
delivered by a Bench of larger strength is
binding on any subsequent Bench of lesser or
coequal strength”..
 Any interim order passed even by the
Supreme Court is limited to that particular
case and should not be used as precedent
for other cases specifically when the
Supreme Court itself has earlier
authoritatively decided the question which is
squarely involved in the later case
 “circumstantial flexibility, one additional or
different fact may make a world of difference
between conclusion in two cases or between
two accused in the same case. Each case
depends on its own facts and a close
similarity between one case and another is
not enough because a single significant
detail may alter the entire aspect.”.
How Judges Decide?
What Judges do?
The Judges filling the gaps in the law, making use of
varying methods in combinations.
 There are number of factors that significantly limit
judicial discretion while interpreting law by judge.
 First, judges may make new law only, when the law
contains gaps or a legal rule is clearly obsolete
 Second, judges in their exercise of judicial review
should never strike down a law unless it is “so plainly
arbitrary and oppressive that right-minded men and
women could not reasonably regard” it otherwise
 Third While invoking norms such as “reason,”
“justice,” or “social advantage” they should look to
community standards rather than to their own personal
values.
 What is the intellectual process by which the judge
decides a case?
 Everyone has a “stream of tendency” which gives us
coherence and direction to thought.
 Judges are not immune, it means judges have also
forces, such as instincts, beliefs, and convictions, which
result in a certain outlook on life that controls or guides
their decision-making.
 A judge must always use an objective standard of
right and wrong and must rule within his limits,
always adhering to precedence in the absence of
a detriment to social welfare.
 Philosophy, history, tradition, and sociology all
are forces which inform a judicial decision,
although a judicial decision must be based upon
the mores of the community at the present time.
 A judge sometimes acts as a legislator when he
fills in the gaps in the laws. A judge must act in
good conscience and reason, and maintain law
and morals
 This is a great amount of power and may be subject to
abuse, but it must be granted.
 Judges requires apply the constitution or a statute to a case,
but they must also serve as the “interpreter for the
community” to harmonize results of cases and ensure that
justice and logic are upheld.
 Judges also employ stare decisis and apply precedent when
looking to common law.
 The common law derives generalizations from particulars
and these decisions should be treated as “working
hypotheses” and not “final truths.”
 These rules are retested and reformulated gradually over
time, so a seemingly unimportant may change, indeed be
larger in magnitude down the line.
 The directive force of a principle may apply along with
the method of philosophy (logical progression)
 The method of evolution (line of historical
development)
 The method of tradition (line of the customs of the
community)
 The method of sociology (the lines of justice, morals
and social welfare).
 It is important to maintain uniformity in the courts and
to exclude chance and favor.
 Question is what is philosophy ?
 Quite literally, the term "philosophy" means, "love of
wisdom." In a broad sense, philosophy is an activity
people undertake when they seek to understand
fundamental truths about themselves, the world in
which they live, and their relationships to the world
and to each other.
 As an academic discipline philosophy is much the
same. Those who study philosophy are perpetually
engaged in asking, answering, and arguing for their
answers to life’s most basic questions. To make such
a pursuit more systematic academic philosophy is
traditionally divided into major areas of study- such
as Metaphysics, Epistemology, Ethics, Logic
 The study of ethics often concerns what we
ought to do and what it would be best to do.
In struggling with this issue, larger questions
about what is good and right arise. So, the
ethicist attempts to answer such questions
as:
 What is good? What makes actions or people
good?
 What is right? What makes actions right?
 Is morality objective or subjective?
 How should I treat others?
 Another important aspect of the study of
philosophy is the arguments or reasons given
for people’s answers to these questions. To
this end philosophers employ logic to study
the nature and structure of arguments.
Logicians ask such questions as:

 What constitutes "good" or "bad" reasoning?
 How do we determine whether a given piece
of reasoning is good or bad?
 Some principles have come together, not by
chance, to regulate judge-made law-
 Everyone has a “stream of tendency” which
gives us coherence and direction to thought
and judges are not immune to such a
tendency
 They have forces, such as instincts, beliefs,
and convictions, which result in a certain
outlook on life that controls or guides their
decision-making
 Sometimes all a judge is required to do is
apply the constitution or a statute to a case,
which may seem to make a judge’s job look
unnecessary, but they must also serve as the
“interpreter for the community” to harmonize
results of cases and ensure that justice and
logic are upheld. This is a great amount of
power and may be subject to abuse, but it
must be granted.
 Judges also employ stare decisis and apply
precedent when looking to common law. The
common law derives generalizations from
particulars and these decisions should be
treated as “working hypotheses” and not
“final truths.” These rules are retested and
reformulated gradually over time, so a
seemingly unimportant change may indeed
be larger in magnitude down the line
 The directive force of a principle may be
exerted along the method of philosophy
(logical progression), the method of evolution
(line of historical development), the method
of tradition (line of the customs of the
community), and the method of sociology
(the lines of justice, morals and social
welfare). Either way, it is important to
maintain uniformity in the courts and to
exclude chance and favor.
 (Evolution )Method of history, A principle expanded to the
limit of logic may be counter acted by its tendency to
confine itself within the limits of history, thus stressing the
importance of the method of history. Often times, history
makes the path of logic clear.
 Some conceptions of the law exist in their current form
solely because of history and are not to be understood
except as “historical growths.”
 History illuminates the past, and in doing so illuminates the
present, and in illuminating the present, illuminates the
future. Some times conceptions of law are unintelligible or
arbitrary when they are separated from their past form and
meaning. In order for these to be logical, one must consider
their origins.
 The method of tradition, or customs, means less today
than it did before. We look to custom for the tests and
standards that determine how established rules are applied,
and we don’t look to it so much for the creation of new
rules. “Life casts the moulds of conduct, which will some
day become fixed as law. Law preserves the moulds, which
have taken form and shape from life.”
 The method of sociology must be used when social needs
demand a decision that calls for sacrificing history or
custom. “The final cause of law is the welfare of society,”
and a rule must justify its existence. The welfare of society
must fix the path, direction, and distance of an existing rule
that is to be extended or restricted. The method of sociology
fills in the gaps and we apply it when we pursue logic,
coherence, and consistency as the greater social value
 Statutes should not be viewed in a vacuum and abstract
conceptions, like liberty and equality, It should be
placed in the context of the contemporary conditions.
 Statutes are designed to meet the exigencies of the
current time, while the constitution should be designed
to last into the future.
 Standards should be objective, and should consider
what one things another man of normal intellect and
conscience would deem right.
 The Method of Sociology
 The conception that the end of the law as determining the
direction of its growth finds its instrument in the method of
sociology. The philosophy of the common law is at bottom
the philosophy of pragmatism, with its truth being relative
and not absolute.
 A judge must heed the mores of his day, but he must be
mindful to direct the attainment of the moral end and its
embodiment in legal forms.
 The judge must use the objective standard when evaluating
right from wrong, otherwise the law will be at risk of
degenerating into a jurisprudence of sentiment, feeling, and
whim. This objective standard should consider the standards
of the community and the mores of the time.
 Logic, history, custom, and utility, and accepted
standards of right conduct all are forces which shape
the progress of law. A judge must determine which of
these forces should dominate in the case before him. In
doing so, he must consider the social interests that will
be impaired or promoted.
 A judge’s role is somewhat like a legislator, although a
judge legislates within tighter bounds. A judge’s role as
legislator is to fill in the gaps in the law, whenever
these may arise in a case, which hardly ever arises
(Cardozo says) .
 A judge is under a duty to rule in a way, he must rule
within his bounds. If he fails to do so, he has
committed a legal wrong and may be removed or
punished.
 A judge is under a duty to “maintain a relation between
law and morals, between the precepts of jurisprudence
and those of reason and good conscience.”
 Someone has to be granted this power of interpretation,
and the constitution has decided it granted to judges,
though they may not be perfect.
 The method of sociology demands that when a judge is
innovating and making decisions within his narrow
bounds, he should search for social justice.
 Buddhism - sophisticated theory of mind –
conscious (immediate awareness, sensations
and perceptions, analysis of information we
receive through out senses and the decisions
be make based on it) and subconscious
 the subconscious (aka – preconscious) - store
house of experiences and the resulting
impressions and tendencies – affecting
pattern of thoughts and behavour
(unknowingly)
 Unconscious- thoughts, memories, and
primitive/instinctual desires that are buried
deep within ourselves -significant influence
behaviour.
 If precedent and custom fail
Impartial arbiter will decide whats fair/resonable
based off community habits/ customs/ conscience and
standards of justice prevailing.
 Why is it allowed?
Since law cannot take in consideration all possible
situation, the above mentioned is allowed as it is assumed
such above decision would be similar to a rule had it
been framed prior to creation of such situation
Following precedent = necessary, provided same not
detrimental to social welfare. Also judges must use
precedent based on their own will.

Opinions/ outlooks vary from person to person – setting

precedent based on same = result in errors in law
 Legislative intent = reasons (example - pubic evil)
behind which statute was framed. Provisions seeks to
achieve such legislative intent.

Statute = law set by sovereign/ government official

Interpretation must be in accordance with legislative
intent
 Judiciary must adhere to “Sententia Legis” (i.e., true
intention of legislature) during interpretation
 Legislative intent (objectively determined) reference to
the meaning of words used by legislature

 Legislative intent is found through use of the guiding

rules of interpretation.
 Salmond judiciary must discover and act upon
legislative intent
 As essence of the law lies in the spirit, not in its letter,
but letter are the only way in which intentions are
expressed. The words are external manifestation of
intention that it involves. When there is possibility of
one or more interpretation of statute, courts has to
adopt that interpretation which reflects the ‘true
intention of legislature’ which can also be considered
legal meaning statutory provisions.
 1. “Meaning”
 2. “Purpose and Object”
 Through analysis of above, intention of legislature is
obtained
 Judges must keep the above in mind while interpreting
the law.
1. Provisions of statute
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 Parliament 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
 RMD Chamarbaugwala v. Union of India
statute must be constructed as per legislative intent

 Salmond – judge must act on legislative intent

 Venkataswami Naidu v. Narasaman Naraindas

 If provisions clear, no need to check legislative intent
 If provisions unclear ambigious , interpret based on
legislative intent

 Union of India v. Elphinstone Spinning and Weaving Co.

Ltd., - SC held above = “cardinal rule of construction”.
 traditional pedagogy - legislative intent is binding on the
courts in case of ambiguity and forms the basis of statutory
construction.
 In Balwant Singh v Jagdish Singh
Entire statue must be given full effect to achieve
objective sought by while keeping in mind legislative
intent. Cannot assume certain provisions were inserted
without a purpose
 In CCE, Chandigarh –I v Punjab Steels 2010– (PUNJAB
AND HARYANA HIGH COURT), it was held that it is not
possible to assume any intention or governing purpose of
statue more then what is stated in plain language. The
words can not be added or substituted so as to give a
particular meaning. The terms are specifically defined in
and used in different provisions consciously. The argument
that reading of terms in statute by analogy, ie, if in one
provision a term is used, the same should be read in other
provision as well where not specifically mentioned is not
sustainable. Once the rule making authority has defined the
terms specifically, the argument of analogy that same
should be read in the other provision as well, where it has
not been specifically mentioned, has no leg to stand. :
 Hon'ble the Supreme Court in Mathuram Agarwal v. State
of Madhya Pradesh, (1999) 8 SCC 667 "The intention of the
legislature in a taxation statute is to be gathered from the
language of the provisions particularly where the language
is plain and unambiguous. In a taxing Act it is not possible
to assume any intention or governing purpose of the statute
more than what is stated in the plain language. It is not the
economic results sought to be obtained by making the
provision which is relevant in interpreting a fiscal statute.
Equally impermissible is an interpretation which does not
follow from the plain, unambiguous language of the statute.
Words cannot be added to or substituted so as to give a
meaning to the statute which will serve the spirit and
intention of the legislature.
 Bangalore Medical Trust vs B.S. Muddappa
And Ors , 1991 AIR 1902, 1991 SCR (3) 102

 Siddharam Satlingappa Mhetre vs State Of

Maharashtra And Ors 2 December, 2010.
 https://indiankanoon.org/doc/1108032/
 Originalism
 dynamism
 constitutional and statutory interpretation should
converge
 interpreting both the Constitution and federal
statutes in accordance with their original meaning at
the time of enactment. (Justice Antonin Scalia)
 dynamic version- interpreting both the Constitution
and federal statutes in accordance with the demands
of practical reason (William Eskridge)
 interpretation is viewed as "fundamentally similar to
judicial lawmaking in the areas of constitutional law
and common law
 courts should interpret both the Constitution and
statutes to bring their decisions into general
alignment with contemporary values, as reflected
in the elected branches of government.
 judicial role in a democracy requires interpreting
democratically enacted texts, whether a statute
or the Constitution, according to his textualist
originalist approach.
 dynamic method of interpretation "reconcil[es]"
democracy and the rule of law in both
constitutional and statutory interpretation
 courts should interpret both the Constitution and
statutes to bring their decisions into general
alignment with contemporary values, as reflected in
the elected branches of government.
 that originalism enhances the democratic
process by forcing political actors to
deliberate carefully about the laws they enact
also do not apply to constitutional
interpretation.
 Eskridge argues that dynamic interpretation
promotes legal stability. Stability as the law
reaching a stable equilibrium-finding a
position that will not be subject to override
by a coordinate institution. Indeed, on this
view of stability, constitutional and statutory
interpretation will diverge precisely because
of the differential force of political
accommodation in the constitutional and
statutory spheres.

 Scalia's textualist originalist view is that judicial interpretation
should aim to discern the "objective indication of the words"" as
they would have been understood at the time of their
enactment." This view is textualist because it takes statutory or
constitutional text as the sole interpretive object, and it is
originalist because it seeks to capture the understanding of the
text at the time of enactment, as opposed to at the time of
interpretation (or some other time).
 the first and most important distinction that judges must make
is whether they are operating in a common law mode, or whether
they are called upon to interpret and apply democratically
enacted texts, such as the Constitution and statutes.
 Judges are "bound" by the democratic process not to "tinker with
statutes," and "how much more should they feel bound not to
tinker with a constitution, when their tinkering is virtually
irreparable
 Eskridge argues that we should candidly acknowledge that
multiple sources bear on statutory construction.
 Eskridge argues that in both statutory and constitutional
interpretation, the Court should balance its reading of
text, history, precedent, and values at the time of
interpretation so that the interpretive outcome reflects
what he calls a "stable equilibrium
 The approach claims a democratic foundation because it
takes the substantive positions of the elected institutions
of government, which are the best political reflection of
popular preferences, as a guide to interpretation; the idea
is that the courts should interpret enacted law so that it
will correspond to the current policy preferences of the
elected branches of government