JUDICIAL PROCESSES AND STATUTORY INTERPRETATION

18th August 2022 – check

22nd August 2022

DM Arravali Golf Club v Chandra Das – applicable to both judicial process as well as
interpretation

The parliament cannot be left with all

Whatever the judiciary is doing in the name of justice, it has to be seen if they are subject to
some scrutiny.

Assignment – look for a judgment – a case which shows that judicial process has been put
into motion – a principle has been interpreted

Cardozo – talks about the philosophical aspect of the judicial process. What is brewed in the
courts? – legal principles, justice.

Three things one would do as a judge:

1. Follow Principles of Law – established or devised –

Facts – there is a need to filter out the undesirable things to come to the truth

Whether there is any scope of sensitivity or the judge has to be immune to extraneous
circumstances? –

2. Consistency in application of principles, follow the precedents – consistency is important

when it comes to delivery of justice

Law, truth, reason

Sources of Information: precedents, books, works of jurists,

23rd August 2022

DM Aravalli Golf Club v Chandra Hass – the supreme court in this case reinstated the order
of the trial court. The apex court quashed the judgment of the high court here – mostly on
the lines that judicial activism is not good all the times. The supreme court quoted cordozo in
this case (one more jurist, find out who).

Contractual workers, working as tractor drivers, recognized as malis after a couple of years.
It was an administrative decision. There was arbitrariness in the administrative decisions. In
every organisation there is a sanctioned post. If there is no post, then you need to get that
post sanctioned. For everything there is a due process, and compliance with that due process
is what is required.

The role of the judiciary is only to settle the dispute or check the arbitrariness. In this case,
judicial overreach and judicial restraint was concerned. The high court asked the petitioner
to get the post sanctioned – this is not the correct because of separation of powers.

Insensitivity and tendency to encroach upon the work of the others – it is not the duty of the
judiciary to legislate. As the apex court it can do anything, but it is to be seen till how far is it
justified.

Para 18, 21, para on Frankfurt

Example – polybags were banned in Delhi by the SC. It was never complied with.

Para 22 – Tata Cellular v Union of India – adjudication must be done within the system of
historically validated restraints and conscious minimization of the Judges' preferences. The
Court must not embarrass the administrative authorities and must realize that
administrative authorities have expertise in the field of administration while the Court does
not adjudication must be done within the system of historically validated restraints and
conscious minimization of the Judges' preferences. The Court must not embarrass the
administrative authorities and must realize that administrative authorities have expertise in
the field of administration while the Court does not

Para 25 – read the para with monkeys

Cordozoa – The nature of judicial process – lecture 1 – There is a need to distinguish

conscious elements and sub-conscious elements.

I do not mean that even those considerations and motives which I shall class under the first
head are always in consciousness distinctly, so that they will be recognized and named at
sight.

All the forces which they do not recognise and cannot be named … these forces are

It is often through these subconscious forces that judges are kept consistent with themselves,
and inconsistent with one another. We are reminded by William James in a telling page of
his lectures on Pragmatism that every one of us has in truth an underlying philosophy of life,
even those of us to whom the names and the notions of philosophy are unknown or
anathema. There is in each of us a stream of tendency, whether you choose to call it
philosophy or not,1 which gives coherence and direction to thought and action. Judges
cannot escape that current any more than other mortals. All their lives, forces which they do
not recognize and cannot name, have been tugging at them--inherited instincts, traditional
beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social
needs, a sense in James's phrase of "the total push and pressure of the cosmos," which, when
reasons are nicely balanced, must determine where choice shall fall. In this mental
background every problem finds its setting.

The constitution overrides a statute, but a statute, if consistent with the constitution,
overrides the law of judges. – if there has to be simple and plain meaning, then simply apply
the law. In this sense, judge-made law is secondary and subordinate to the law that is made
by legislators. It is true that codes and statutes do not render the judge superfluous, nor his
work perfunctory and mechanical. There are gaps to be filled. There are doubts and
ambiguities to be cleared. There are hardships and wrongs to be mitigated if not avoided.
Interpretation is often spoken of as if it were nothing but the search and the discovery of a
meaning which, however obscure and latent, had none the less a real and ascertainable
pre-existence in the legislator’s mind.

The process is, indeed, that at times, but it is often something more. The ascertainment of
intention may be the least of a judge's troubles in ascribing meaning to a statute.

Read para 29 – Courts have to be careful to see that they do not overstep their limits because
to them is assigned the sacred duty of guarding the Constitution

Para 33, 34 and 36 – Cardozo quoted in para 36 –

Para 40 – cited Dennis v United States – courts are not representative bodies

25th August 2022

P Rama Chandra Rao v State of Karnataka – Para 22 – Legislation is that source of law which
consists in the declaration of legal rules by a competent authority. When judges by judicial
decisions lay down a new principle of general application of the nature specifically reserved
for legislature they may be said to have legislated, and not merely declared the law. Salmond
on Principles of Jurisprudence (12th Edition) goes on to say "we must distinguish law-
making by legislators from law-making by the courts. Legislators can lay down rules purely
for the future and without reference to any actual dispute; the courts, insofar as they create
law, can do so only in application to the cases before them and only insofar as is necessary
for their solution. Judicial law-making is incidental to the solving of legal disputes;
legislative law-making is the central function of the legislator." [mention the underlined part
in the answer].

In a monograph "Judicial Activism and Constitutional Democracy in India", commended by

Professor Sir William Wade, Q.C. as a "small book devoted to a big subject", the learned
author, while recording appreciation of judicial activism, sounds a note of caution "it is plain
that the judiciary is the least competent to function as a legislative or the administrative
agency. For one thing, courts lack the facilities to gather detailed data or to make probing
enquiries. Reliance on advocates who appear before them for data is likely to give them
partisan or inadequate information. On the other hand, if courts have to rely on their own
knowledge or research it is bound to be selective and subjective. Courts also have no means
for effectively supervising and implementing the aftermath of their orders, schemes and
mandates. Moreover, since courts mandate for isolated cases, their decrees make no
allowance for the differing and varying situations which administrators will encounter in
applying the mandates to other cases. Courts have also no method to reverse their orders if
they are found unworkable or requiring modification".

It may lay down principles, guidelines and exhibit creativity in the field left open and
unoccupied by Legislation. Patrick Devlin in 'The Judge' (1979) refers to the role of the Judge
as lawmaker and states that there is no doubt that historically judges did make law, at least
in the sense of formulating it.

Professor S.P. Sathe, in his recent work (Year 2002) "Judicial Activism in India
Transgressing Borders and Enforcing Limits", touches the topic "Directions: A New Form of
Judicial Legislation". Evaluating legitimacy of judicial activism, the learned author has
cautioned against Court "legislating" exactly in the way in which a Legislature legislates and
he observes by reference to a few cases that the guidelines laid down by court, at times, cross
the border of judicial law making in the realist sense and trench upon legislating like a
Legislature.

Padma Sundara Rao v State of Tamil Nadu –

The rival pleas regarding re-writing of statute and casus omissus need careful consideration.
It is well settled principle in law that the Court cannot read anything into a statutory
provision which is plain and unambiguous. A statute is an edict of the legislature. The
language employed in a statute is the determinative factor of legislative intent. [the rule of
construction is important here, in the exam you may be asked to differentiate]. The first and
primary rule of construction is that the intention of the Legislation must be found in the
words used by the Legislature itself. The question is not what may be supposed and has been
intended but what has been said. "Statutes should be construed not as theorems of Euclid".
Judge Learned Hand said, "but words must be construed with some imagination of the
purposes which lie behind them".

In Dr. R Venkatchalam and Ors. etc. vs. Dy. Transport Commissioner and Ors. etc. (AIR 1977
SC 842) it was observed that Courts must avoid the danger of apriori determination of the
meaning of a provision based on their own pre-conceived notions of ideological structure or
scheme into which the provision to be interpreted is somewhat fitted. They are not entitled
to usurp legislative function under the disguise of interpretation.

Upendra Baxi article – to be discussed in the next class –

Rajiv Dhawan –

Cardozo

Types of Methods of Jusicial process which Cardozo has covered (four lectures in total)

Philisophy

History

Tradition

Sociology

Adherence to Precedents

1. Inherent Instincts

2. Beliefs

3. Acquired Convictions

The above 3 forces with regard to a judge (of an apex court having law making power) should
be reasonably balanced and you need to see what Cardozo calls the “Conception of Social
Needs.” He says “reasons are nicely balanced – must determine where _____ falls – every
problem finds its own settings.”

This is what he means by push and pull of the cosmos, and the background and setting of the
case. Subjectivity always creeps into the judgement of the judge. Can only see the world
through his eyes and not through anyone else’s eyes (through the lens of the director you see
the artist).

This is the philosophical method of judicial process.

Judge is only supposed to see the arguments and material put by the lawyers, and the
legislation – not to look beyond it to the background and settings.

Now we will make another attempt to show judge made-law is secondary through Gray’s
Lectures on Nature and Sources of Law. Sometimes legislation do not attribute any meaning
to the statutes. The legislature had probably not anticipated the question before courts right
now while drafting.

If a particular meaning has not been ascribed by the legislation, then courts are not supposed
to ascribe them by considering other factors like social morality, equality etc. (e.g. Hindu
Succession Act – no female coparcenors before 2005 amendment, judges could not read in)

29th August 2022

How to judge the Judges

Upendra Baxi

[one question in the exam from this]

Seervai has criticised Justice Iyer’s judgments. Baxi has further criticised Seervai. Only that
part of Seervai’s work has been taken up which Baxi felt is not that good. At the outset,

Part II last para - things that Baxi found annoying

Part III

Judges of the SC should simply proceed with the material and the arguments placed before
them. Write the judgment based on the drafts of both the parties. Baxi says that Seervai’s
model of judicial role has the following components (components that Baxi identified from
Seervai’s writing):

Judge is also a public servant.

Judging the judges is a natural right of the bar -

“It is clear that the model of judicial role espoused by Seervai is not a fully worked out
philosophical or analytical model” - Baxi says that Seervai is not a jurisprudent. He says that
Seervai does not relate to these theories, rather he takes pride that he is not a theories.

“The approach thus is not just atheoretical but antitheoretical”

“, Seervai's model embodies his preference for obligation set for Indian appell”

Part IV

Reasons summarised by Baxi - for aberrations in Seervai’s work - four reasons have been
given

Positive Law - "judges have to decide in accordance with positive law”

“Thus, the rule that penal statutes must be construed strictly wills and contracts should be as
far as possible be read so as to respect the intentions of parties and testators or that an
absurdity or impossibility may not be attributed to a statute may be seen as authoritative by
and public at large because the judges”

30th August 2022

Notebook – class taken by academic fellow

31st August 2022

In any contract, there are two parties. Any new contract case will brign something new which
is based on the facts. Whatever is going to be the outcome of the case, it will be binding on
the two parties. Will this outcome actually be new or would it be based on precedents?

Baxi says that the contract which is based on the existing precedents, will have a new
outcome at the end.

Misleading.. Political and social implications

Where positive law allows two or more lines of interpretation, judges may choose one of
them.

interpretative efforts. In a system structures governance through a relatively autonomous

appellate judiciary, laissez faire legal profession, and a relatively free access to appellate and
tribunals, the legislature just cannot settle in advance the interpretation that its enacted laws
may receive, in course of time, appellate

“...The legislature just cannot settle in advance”

No lawyer can hope to succed in his task

Fourth - lawyers and judges regularly employ doctrine of precedent and rules of statutory
construction in exercising their choice as to which interpretation should bear at any given
time.

Whether the judge has discretion to give the offender relief of any sort - how do you interpret
the penal statutes - it is said that they have to be interpreted strictly. This is what Baxi also
says. “Thus, the rule that penal statutes must be construed strictly wills and contracts should
be as far as possible be read so as to respect the intentions of parties and testators or that an
absurdity or impossibility may not be attributed to a statute may be seen as authoritative by
and public at large because the judges say so. Statutory interpretation rules, principles and
maxims may be seen, from an outsider's standpoint, as assertions of judicial fiat.
…

If there is any implied term in a contract, how do you infer that?

The process of concretization of general and abstract norms always results in creation of
new, individuated and specific norms. In this sense, the distinction between norm creation
and norm application is not an absolute but a relative distinction.

Part VII

Deputy Legilsator

This part discusses if a judge can be termed a deputy legislator.

Can we have a universal prescriptive theory of judicial discretion? - it is not possible to have
one. It appears to us that the answer to this question must be one. For one thing, the total
social environment, including the and economic millieux, vary enormously between a
developing society and a developed one.

1st September 2022

R. Rudraiah v State of Karnataka – (1998) 3 SCC 23 – The court said that the
principle of ironing out the creases does not justify re-writing a clause or doing violence to its
language.

Tata Consultancy Services v State of Andhra Pradesh – (2005) 1 SCC 308 – The
court should not be overzealous in searching for ambiguities in words which are plain.

State of West Bengal v Washi Ahmad – 1977 SC – it talks about the principle of construction.
The word ‘green ginger’ was discussed – whether it would be a vegetable: green or dry.

Bengal Finance Sales Tax Act 1941 – Section 6(1) – vegetables, green or dry, commonly
known as sabzi. Tax was imposed on green ginger which is used to flavour the food and that
is why it would not fall under the category of sabzi.

The word "vegetable" in Item 6 of Schedule I to the Act, so construed, by giving its popular
sense meaning, "that sense which people conversant with the subject-matter with which the
statute is dealing would attribute to it" denotes those classes of vegetables which are grown
in a kitchen garden or in a farm and are used for the table. It may not be used as a principled
item of the meal. It can be in the category of subsidiary items.

Bharuch Coconut Trading Company case – 1991 SC – it was a trading company which was
importing brown coconuts from coastal areas and selling it in Ahmedabad. The municipal
corporation increased the rate from 1 rupee per hundred KGs to 5 rupees. They said that
brown coconut, though dried green coconut, cannot be considered to be a dry fruit. The
watery brown coconut does not fall within the meaning of the relevant entry number.

Mangulu Sahoo v Sales Tax Officer – 1974 (1972, check) – Justice Khedage – whether chillies
and lemons are vegetables. Odisha sales tax act 1947. In 1961, the Cuttack HC had decided
that these were not vegetables. Before an item can be considered as vegetable, it should be a
principled item of the food.

We are unable to accept this assertion as correct. Even if a section of Oriyas have a dislike for
chillies and lemons, they do not cease to be vegetables for that reason. In common parlance
chillies and lemons are known as vegetables. We have no doubt that chillies and lemons have
always been considered as vegetables. In that view it is not necessary for us to go into the
question whether at any rate they are fruits, sales or purchases of which are exempt from
sales tax.

Oswal Agro Mills v Collector of Central Excise – 1993 SC – central excise and salt act 1944 –
one category is household soap and the other category is any other soap.

The courts have taken the opinion that if you have to take the simple meaning of terms in
common parlance, then you have to use them in the same sense.

Common Parlance test – M/s Trutuf Safety Glass Industries v Commissioner of Sales Tax –
It is settled position in law that while interpreting the entry for the purpose of taxation
recourse should not be made to the scientific meaning of the terms or expressions used but
to their popular meaning, that is to say, the meaning attached to them by those dealing in
them. This is what is known as "common parlance test".

Pritipal Singh v Union of India – Exact meaning should be preferred in place of lose
meaning.

Contiguous – the meaning has created issues. The meaning in common parlance is what is to
be seen. The exact meaning should be used. One should be careful to not mix the secondary
meaning with the lose meaning, and the lose meaning should not defeat the purpose of
secondary meaning.

“Wherever the secondary meaning points to a meaning which the statute meant, preference
should be given to the secondary meaning.”

5th September 2022

Harshad Mehta case - the SC identified three stages when it comes to imposition of a tax:

1. declaration of liability in respect of persons or property

2. assessment of tax that quantifies the sum which the person liable has to pay

3. methods of recovery if the person taxed doesn't voluntarily pay

Tax Due - how do you determine the tax that is due? - tax may vary depending on the context
and the context will answer this question.

Natural meaning is to be seen in view of the intent of the legislature, and then apply it in the
context. the word they have been using

is there any scope of intent in calculation? - what has been there, a person needs to apply
their mind to that.

If primary meaning is not the intent of the legislature, then you will follow the secondary
meaning because that is the intention of the legislature. We are here to discuss the intent of
the legislature.

Difference between interpretation and construction - are these synonyms? - providing

meaning that is already not there is something called construction.

Sometimes they say that they are exactly the same. Interpretation is the art of finding out the
true sense of any form of words, i.e., the sense which their authors intended to convey and of
enabling them to derive from the same idea which the author intended to convey.

Construction - construction is the drawing of conclusions, respecting subjects that lie beyond
the direct expression of the text from elements known from and given in the text conclusions
which are in the spirit though not within the letter of the law.

What is the logical basis of any law? - every legislation has come to rectify some mischief.
Although it is not possible to put everything into the category of mischief, it is one of the
objectives. at times, there is also redundancy. [check with rohit if anything was said here]

Prithipal Singh v Union of India - legality and validity of certain orders was challenged which
initiated court martial proceedings against certain army officers.

Arguments were made on article 21 of the constitution. If any order is passed against army
officers, then it has to be fair and reasonable as per article 21. the fundamental rights cannot
be deprived by delegated legislations like the Army Rules. Article 243 empowers the
parliament to restrict the fundamental rights of members of the armed forces. Rule 20 of the
army rules involved discussion on interpretation.

Rule 20 deals with composition of court martial. two requirements. a positive standard
which says what all is to be there. a negative standard which says who all are not to be
included.
The issue before the court was interpretation of the word "corps". The petitioner argued that
it should be army corps. The court said that the units that are termed as regiment or
battalion are ‘corps’ for the purposes of the act. In generally taking it as army corps would be
difficult. If it is used in the narrow sense, then the provision becomes useable and that is
what the parliament also intended

"the legislature speaks its mind by use of correct expression... the court should adopt literal
construction.. if absurdity, then external aids can be adopted ..."

construction combines literal meaning and purposive interpretation. This combination will
become construction.

Jasbir Singh v Vipin Kumar Jaggi - AIR 2001 SC 2734 -

the statutes must be read as a whole in its context. it is the text and the context which
become relevant.

if a law is unjust in nature, then is interpretation is required for such kinds of laws? - unjust
law is no law. the law has to be just and unbiased.

Bharat Petroleum Corporation v M Ratnavali - 2007 SC -

6th September 2022

Back to cardozo

Philosophical principles while judgement written by the judge

You create something for the benefit of somebody. E.g., who is the beneficiary in the will? -
beneficiary. Can be executed after the death of the testator. Here the beneficiary killed the
testator. - Riggs v Palmer - Palmer leaves the will for grandson but the latter poisons him. He
was convicted of murder. Palmer’s daughter brought a case that the share of the killer as per
the will should be declared void. Question is whether a court may stray from a statute's text
to prevent an unjust result? —- When enforcement of a statute renders an absurd or an
unreasonable result, a court may interpret a statute in a manner which displays the law
maker's true intention.

Cardozo says these conflicting principles were in competition - but who should be allowed to
be the master? - court should interpret in a way that interprets the law makers true inteniton
- v/s whether the murderer can reasonably inherit from the victim? Test of reasonability -

The directive of force of logic does not always exert itself however along a single and an
unobstructed path. One principle or precedent push to the limits of its logic may point to one
conclusion, other principle or precedent, followed with like logic, may point with equal
certainty to another. Civil courts may not add to the pains and penalties of crime. You cannot
claim justice where you are yourself the wrongdoer. Here the logic of this principle prevails
over any other statute, precedent or any other logic.

Equity -

Constructive trust

How do we leave constructive trust with equity? — cardozo reiterates - a constructive trust is
nothing but the formula through which the conscience of equity finds expression. Property is
acquired in such circumstances that the holder of the legal title may not in good conscience
retain the beneficial interest . Equity, to express it disapproval of his conduct, converts him
into a trustee. Such formulas are merely the remedial devices by which a result conceived of
as right and just is made to square with principle and with the symmetry of the legal system.

Formula v/s logic

Microcosm - and how do we relate it to the judicial process - judicial process is there in the
microcosm. E.g., in geography - where there are mountains there may earlier used to be
deserts and vice versa. Similarly in JP - These kind of upheavals are bound to bring justice
system. The best of the logic may not prevail in the given circumstances.

Jasbir Singh v Vipin Kumar Jaggi - AIR 2001 SC 2734 - presented in class by me. Refer to
SCC Online digest note.

Bharat Petroleum Corporation v M Ratnawali 2007 SC -

Bharat petroleum corpioration case 2007 –

An act of parliament: Burma shell acquisitions and undertaking 1976 – allowed for the
acquisition of right title of Burma shell company. Lease of 30 yrs to bharat petroleum - could
exercise right to renewal later. Burma shell didn’t argree to this. rent not paid over 30 yrs.

Asked to return possession – when not done, suit for eviction filed. BP averred that the
property is needed for bona fide construction.

Went by literal interpretation – BP had right to continue the occupancy first appellate court
allowed burma’s appeal – didn’t show a reason why right to renewal was needed (BP didn’t
show this) further on practical end as construction was going on, the business was diverted
to some other place. Couldn’t shelter in any technicality. Didn’t even pay rent hence taken
against them.

HC of AP: dismissed BP appeal. BP didn’t show bona fide for legal right. BP wanted to sit on
land without any reason.

SC considered interpretation requirements:

- BP fell within state definition of Article 12. Had the duty to act fairly and reasonably. Act
used ‘IF SO DESIRED BY CENTRAL GOVT’ – discretion has to be exercised objectively. If
subjective then liable to judicial review

- DURA LEX SAID LEX – Law is hard but it is the law. Ragunath case – equity can only
supplant the law and not override irt

- LEX INJUUSTA NON EST LEX – Unjust law in no law see rakesh case too. Statute can
never be exhaustive there is lways scope for. Courts ot interpet statute in line with
pragamatism and current demands.

Any legal construction has to be meaningful. Held against BP – any statutory order of
discretion had to be tested on anvil of consti scheme. Also when there is statute, there is
presumption of constitutionality – thought the right to lease land not a fundamental right, it
continues to be a consti right, hence any legislation has to construed strictly and with
constitution in mind.

How far is presumption helpful in interpreting provisions? What about fiction?

2nd lecture of Cardozo – methods of history, tradition and sociology – a page of history is
worth a volume of logic.

Blackstone – common law (may be written or unwritten) and custom. Divides common law
in 3 categories:
- General customs (to everyone – usual signification)

- Particular customs (affecting inhabitants of a particular district)

- Particular laws which by custom are adopted and used by some particular courts of
general and extensive jurisdiction.

Tanishka notes on the case

Bharat Petroleum Corp. v M. Ratnavalli (2007) 6 SCC 81

1. Facts –

The Parliament enacted the Burmah Shell (Acquisition of Undertakings in India) Act, 1976 –

acquisition and transfer of right, title and interest in the Burmah Shell Oil Company to
Bharat

Petroleum.

By virtue of section 3 of the Act, the right, title and interest of Burmah Shell stood
transferred

to, and vested in the central government.

On expiry of the lease after 30 years, the appellant (Bharat Petroleum) exercised its right of

renewal by issuing a notice to Burmah Shell – the latter did not agree, and stated that the
rent in

respect of the land was not paid by the appellant.

When vacant possession was not delivered by the appellant, a suit for eviction was filed – the

appellants averred in their WS that the property in question was required for “bona fide

construction”.

2. Procedural History –

Senior Civil Judge, Anakapalle (AP) – Dismissed the suit for eviction in view of the
provisions

of the 1976 Act holding that the appellant had the right to continue to occupy the leasehold
as a

tenant on the same terms and conditions on which the tenancy was granted.

First Appellate Court – Appeal allowed – Noted that the defendant company (Bharat
Petroleum) did not show the need for renewal of the lease for a further period of 30 years.
The

Court further noted that there is no need for such renewal, because in the defendant’s own

admission, the highway traffic diverted to the bypass road due to closure of the bridge near
the

schedule premises. Focusing on the object of the 1976 Act, the Court held that the Act
intended

to provide “better service to the public”. By taking “shelter under a technicality”, the
defendant

could not be allowed to sit on the property for a paltry rent of Rs. 50 / month.

Second Appeal, HC of AP – Appeal dismissed – The HC held that during the pendency of the

suit (17 years), the defendants neither paid the rent, nor deposited to the credit of the suit to

show their bona fides for a legal right to have automatic renewal. Diversion of traffic

Reduction

in business in the area Still want to enjoy the suit land. It was opined that the renewal was

actuated by “unfair and unreasonable motives”.

Supreme Court of India –

a. Appellant Company (Bharat Petroleum) – State within the meaning of Article 12 of the

Constitution – enjoined with the duty to act fairly and reasonably.

b. Use of words “if so desired by the central government” – cannot be based upon a
subjective

satisfaction, but must be based on objective criteria. Subjective satisfaction is liable to

judicial

review.

c. Even though the Act overrides section 107 of the ToPA, actions stemming from it to be

judged on the touchstone of reasonableness.

d. Dura lex sed lex – “The law is hard, but it is the law”. The SC referred to its judgment in
Raghunath Rai Bareja v. PNB and acknowledged that “equity can only supplant the law, not

override it.”

e. Lex Injusta non est Lex – Referred to Rakesh Wadhawan v. Jagdamba Industrial Corp.
where it was held that a statute can never be exhaustive. The scope for courts to interpret the
statute in line with pragmatism and demands of varying situations, always exists. The
construction placed by the Court on statutory provisions has to be meaningful. The
legislative intent has to be found out and effectuated.

f. Statutory order of discretion – tested on the anvil of the constitutional scheme.

g. Final aspect of presumption – Right of property, though not an FR, continues to be a

constitutional right. Hence, any expropriatory legislation must be construed strictly.

Methods of history, tradition and sociology - second lecture of cardozo is based on this. He
says a page of history is worth a volume of logic. Blackstone talks about common law and
custom. Common law 3 types as per Blackstone - general customs (applicable to everyone
and the most usual signification), particular customs (which only affect a few), certain
particular laws which by custom are adopted and used by some particular courts of general
and extensive jurisdiction.

Goodwin v Roberts - here he talks about the laws that the merchants have been using.

7th September 2022

Bhatia International v Bulk Trading – 2002 SC – In their contract, parties often include an
arbitration clause. In this case, the arbitration was to take place in France and a sole
arbitrator was appointed. There was a Section 9 application. The relief sought was an
injunction. The party should be restrained from alienating, transferring or creating third
party rights. Part 1 of the act would not apply to arbitrations where the place of arbitration is
not in India. [Look at the part which talks about Section 9 and whether it is going to apply to
arbitrations that take place outside India or not]. Part 2 of the act applies to foreign awards.
Para 15 of the judgment.

Para 15 – It is thus necessary to see whether the language of the said Act is so plain and
unambiguous as to admit of only the interpretation suggested by Mr. Sen. It must be borne
in mind that the very object of the Arbitration and Conciliation Act of 1996, was to establish
a uniform legal framework for the fair and efficient settlement of disputes arising in
international commercial arbitration. The conventional way of interpreting a statute is to
seek the intention of its makers. If a statutory provision is open to more than one
interpretation then the Court has to choose that interpretation which represents the true
intention of the legislature. This task often is not an easy one and several difficulties arise on
account of variety of reasons, but at the same, it must be borne in mind that it is impossible
even for the most imaginative legislature to forestall exhaustively situations and
circumstances that may emerge after enacting a statute where its application may be called
for. It is in such a situation the Courts' duty to expound arises with a caution that the Court
should not try to legislate. While examining a particular provision of a statute to find out
whether the jurisdiction of a Court is ousted or not, the principle of universal application is
that ordinarily the jurisdiction may not be ousted unless the very statutory provision
explicitly indicates or even by inferential conclusion the Court arrives at the same when such
a conclusion is the only conclusion. Notwithstanding the conventional principle that the duty
of judges is to expound and not to legislate. The Courts have taken 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 Court would adopt
particularly in areas such as, constitutional adjudication dealing with social and defuse
rights. Courts are therefore, held as "finishers, refiners, and polishers of legislatures which
gives them in a state requiring varying degrees of further processing".

A construction that results in hardship, serious inconvenience, injustice, absurdity or

anomaly or which leads to inconsistency or uncertainty and friction in the system which the
statute purports to regulate has to be rejected and preference should be given to that
construction which avoids such results.

Ultimately, this judgment was overruled and criticised for four years. It was overruled in the
BALCO case.

Para 16 – emphasis was given on defining section 2(f) which defined international
commercial arbitration. “The definition makes no distinction between international
commercial arbitrations held in India or outside India.” This is the area that requires
clarification. “An international commercial arbitration may be held in a country which is a
signatory to either the New York Convention or the Geneva Convention. An international
commercial arbitration may be held in a non-convention country.”

Para 24 – As Part I was also to apply to international commercial arbitrations held outside
India the term "judicial authority" has been used in Sections 5 and 8.

This kind of choice of interpretation would help in establishing harmony. This case is
important for interpretation for this purpose. “On this interpretation there is no lacunae in
the said Act. This interpretation also does not leave a party remedyless. Thus such an
interpretation has to be preferred to the one adopted by the High Courts of Orissa, Bombay,
Madras, Delhi and Calcutta. It will therefore have to be held that the contrary view taken by
these High Courts is not good law.”

Constitutional Morality – Navtej Singh Johar case talked about constitutional morality.
Maneka Guruswamy’s article on constitutional morality in the Indian Express (6 th September
2022).

Contemporary Aids – add to course outline under the head “aids to interpretation”

8th September 2022

Judicial process - judiciary is the institution for which judicial process is involved.

In the political spectrum, where and how do we place the judiciary? What makes it
independent? Is it completely independent? Which provision in the constitution says so?
Can the judiciary operate in a vacuum - in a space where the state does not exist?

Independence is a task which is also given to the state. As a matter of institution, it has
special features for functioning. Article 50 sets out a goal for judicial independence - this is to
say that the judiciary can take action against the state as well. In the beginning the SC used
to sit in one of the halls of the Parliament.

Basic structure doctrine - defence mechanism by judiciary to protect its independence.

Earlier only a few courts had writ jurisdiction. After independence the powers of the courts
were expanded - e.g., the PIL - relaxed the rules of locus standi.

We have to understand the structure within which an institution operates and then we can
come to judicial process and the powers that have been given to the HC and the SC - because
they are the constitutional courts. The other courts are optional - depending on the need -
the HC constitutes these courts. They are not constitutional courts. Administrative power of
the district court is there with the HC.

Earlier we used to have a panchayat system as a method of dispute settlement - why then did
we need to rely on the British courts?

Gandhi was in favour of dispute resolution through Panchayat. But Ambedkar opposed it -
as according to him it reinforces the biases in Indian society - like the caste issues.

As a matter of judicial process, what is the SC supposed to do? - e.gShayara Bano case - the
SC HELD practice of triple talaq as unconstitutional. After this legislature came up with a
law - saying that they will implement this judgement. - criminalised it. Did the SC say
anything about criminalisation? Act of civil nature criminalised - do we have any other
example? Whether and to what extent pronounce judgement on questions of personal law?
Is law declared by SC u/141 a law u/13 - no and cannot be judged on part 3.

The judicial process is something which you should be looking at from the eyes of
interpretation. In Shayara Bano - there were certain questions before the SC - held
unconstitutional. But the subsequent criminalisation - it is unprincipled criminalisation. Can
the SC pass a clarificatory order saying that it did not ask for criminalisation? - SC can take
the suo moto route or it has to wait for the challenge to the act.

Earlier the legislature used to do the things on their own and the judiciary built defence
mechanisms like basic structure. But recently, the legislature does things in the name of the
judiciary saying that they are implementing their rulings.

12th September 2022

What all can be classified as a statute?

Can rules of procedures or institution rules be termed as statutes?

Permanent is one which is going to stay – wow

Law includes everything and is an umbrella term.

European Central Bank Statute –

Any body of rules may be termed as statute if it has arisen from some authority. In the case
of ECB, there is an international convention based on a consensus through which a set of
procedure is to be established, which is a statute. The set of rules will be termed as statute. In
India, the central and state legislations will be termed as statute. But in general, statute is
something which is broader in nature.

One category of statutes is on the basis of time duration – temporary or permanent

CrPC – 1973 – this is a repealing act for the 1898 act.

The consumer protection act 2019 is also a repealing act. There is a difference between an
amending act, enabling act, and repealing act.

IBC, 2016 –

2. Classification with reference to method such mode classified a statute as:

a). mandatory, imperative or obligatory

Mandatory – no option is available. For example, speed limit. Mandatory statute is one
which compels performance of certain things or compels that certain things must be done in
a certain manner or form. A directory statute merley directs or permits a thing to be done
without compelling its performance. [rest para see from the pdf]

b) Directory or permissive

Categories based on the object of a statute

Codifying is different from consolidating

CRPC is a consolidating act relating to criminal procedure. It is not a mere compilation of

earlier statutes but may have a few more things.

Declaratory statute –

Whatever objects are there, on the basis of them, qualification will be done – if they are
declatrt

Remedial statute – by such statutes a new remedy is introduced

If there is some law in existence but there has been some problem, then you don’t amend or
repeal, but you issue some other circular and this will become remedial statute. The object is
“for remedy thereof”. Remedial can abridge the scope or widen the scope

Enabling statute – advocates act for example.

Disabling statute –

Explanatory statute – introduced if some provision or other information is missing

Curative statute – if there was some defect in the earlier law or you need to validate
something with respect to a proceeding that is already going on. Due to lack of procedural
requirements, you are not able to authenticate them, so curative statute is needed. Also
known as validating statute

Amrendra Kumar Mohapatra v State of Odisha – AIR 2014 SC 14 – article 254 and article
245 and 50 – while adjudication of rights is essentially a judicial function, the power to
validate an invalid law or to legalise an illegal action is within the exclusive province of the
legislature. The court gave the following three points:

(i) the vice of invalidity that rendered the act, rule, proceedings or action invalid has been
cured by the validating legislation

(ii) whether the legislature was competent to validate the act, action, proceedings or rule
declared invalid in the previous judgments and
(iii) whether such validation is consistent with the rights guaranteed by Part III of the
Constitution.

It is only when the answer to all these three questions is in the affirmative that the Validation
Act can be held to be effective and the consequences flowing from the adverse
pronouncement of the Court held to have been neutralised.

Public Statute v Private Statute – public statute talks about the public policy – local, general,
national or even personal in nature. Private statute will talk about those provisions which do
not have any public consequence.

In India, statutes are mostly public in nature.

13th September 2022

Pari materia – when it is applied, it results in logical interpretation

State of UP v Babu Ram Upadhya – SC 1961 – currency notes of rupees 650 were found with
the officer.

Rule 1, Para 486 of UP Police Regulation –

See if it is a cognizable offence

Section 7 of the Police Act under which certain proceedings were taken up against the
person. Whether this section was applicable to this person?

Whether the regulations that were invoked in this case were merely directory in nature and
the non-compliance with the rules invalidated the order of dismissal?

Article 311(2) – whether para 486 could be applied to the object which emanated from this
article

The term used in para 486 of the rules is ‘shall’. Whether the shall may be interpreted as
‘may’

Whether the disciplinary proceedings could be treated as administrative action?

Para 486, Police Regulations – Inquiry is made under the directions of the DSP. [page 7 of
the judgment]

Use of the word ‘only’ is important.

the court found that the offence complained of here is a cognizable offence.

Paragraph 486 of the Police Regulations makes this clear. It says that when the offence
alleged against a police officer amounts to an offence only under s. 7 of the Police Act, there
can be no magisterial inquiry under the Criminal Procedure Code. This part of the rule
applies to an offence only under s. 7 of the Police Act i. e., the first category mentioned above.
Rule I refers to a cognizable offence i. e., the second category, rule 11 to a non-cognizable
offence i. e., the third category, and rule III applies to an offence under s. 7 of the Police Act
and to a noncognizable offence. Though the word "only" is not mentioned in rule 111, the
offence under s. 7 of the Police Act can, in the context, mean an offence only under s. 7 of the
said Act i.e., an offence falling under the first category. So understood, the three rules can be
reconciled. We, therefore, hold that, as the offence complained of in the present case is a
cognizable offence, it falls under rule I and not under rule 111. We, therefore, reject this
contention.

But if there is a statute prescribing the terms of service and the mode of dismissal of the
servant of the Crown, the statute would control the pleasure of the Crown.

Whtehr the tenure can be abgrogated or extended by the legislature which has to be at the
pleasure.

The rules made in exercise of a power conferred on a Government-under a statute so

delegating the power to a subordinate officer can only be administrative directions to enable
the exercise of the pleasure by the concerned authorities in a reasonable manner and that
any breach of those regulations cannot possibly confer any right on, or give a cause of action
to, the aggrieved Government servant to go to a court of law and vindicate his rights.

The government of India act 1915 talks about “tenure at pleasure”.

It is common case that the Act and the Regulations framed thereunder were constitutionally
valid at the inception and that they are also consistent with the provisions of the
Constitution. The difference between the two contentions lies in the fact that according to
one His Majesty's pleasure cannot be modified 88 by a statute, according to the other it is
subject to statutory provisions.

The first question is whether the power of the Governor under Art. 310 to terminate the
services of a Government servant at pleasure is part of the executive power of the State
under Art. 154 of the Constitution.

This Article imposes two qualifications on the exercise of the pleasure of the President or the
Governor

The most important of these two limitations is the provision prescribing that a civil servant
shall be given a reasonable opportunity of showing cause against the -action proposed to be
taken in regard to him.
The appropriate High Court and the Supreme Court can test the validity of such a law on the
basis whether the -provisions prescribed provide for such an opportunity, and, if it is valid,
to ascertain whether the reasonable opportunity so prescribed is really given to a particular
officer.

Seven points important for interpretation –

The framers of the Constitution, having incorporated in our Constitution the "tenure at
pleasure" unhampered by legislative interference, thought that the said limitations and
qualifications would reasonably protect the interests of the civil servants against arbitrary
actions. The discussion yields the following results:

(1) In India every person who is a member of a public service described in Art. 310 of the
Constitution holds office during the pleasure of the President or the Governor, as the case
may be, subject to the express provisions therein.

(2) The power to dismiss a public servant at pleasure is outside the scope of Art. 154 and,
therefore, cannot be delegated by the Governor to a subordinate officer, and can be exercised
by him only in the manner prescribed by the Constitution.

(3) This tenure is subject to the limitations or qualifications mentioned in Art. 311 of the,
Constitution.

(4) The Parliament or the Legislatures of States cannot make a law abrogating or modifying
this tenure so as to impinge upon the overriding power conferred upon the President or the
Governor under Art. 310, as qualified by Art. 311.

(5) The Parliament or the Legislatures of States can make a law regulating the conditions of
service of such a member which includes proceedings by way of disciplinary action, without
affecting the powers of the President or the Governor under Art. 310 of the Constitution read
with Art. 311 thereof.

(6) The Parliament and the Legislatures also can make a law laying down and regulating the
scope and content of the doctrine of "reasonable opportunity" embodied in Art. 311 of the
Constitution; but the said law would be subject to judicial review.

(7) If a statute could be made by Legislatures within the foregoing permissible limits, the
rules made by an authority in exercise of the power conferred thereunder would likewise be
efficacious within the said limits.

Under para. 479(a) the Governor's power of punishment with reference to all officers is
preserved; that is to say, this provision expressly saves the power of the Governor under Art.
310 of the Constitution. "Rules made under a statute must be treated for all purposes of
construction or obligation exactly as if they were in the Act and are to be of the same effect as
if contained in the Act, and are to be judicially noticed for all purposes of construction or
obligation"

Departmental directions are different. If there are rules under it, then that would make it a
comprehensive code [make it make sense]

Thakur Pratap Singh v Shri Krishna – AIR 1956 SC 140 – the printed forms being issues
earlier got finished because of the high number of candidates. New forms were issued. Old
forms carried a column for caste but the new ones carried a form for occupation.

Some rules are vital and go to the root of the matter : they cannot be broken; others are only
directory and a breach of them can be overlooked provided there is substantial compliance
with the rules read as whole and provided no prejudice ensues; and when the legislature does
not itself state which is judges must determine the matter and, exercising a nice
discrimination, sort out one class from the other along broad based, commonsense lines.

It is a well settled general rule that an absolute enactment must be obeyed or fulfilled exactly,
but it is sufficient if a directory enactment be obeyed or fulfilled substantially.

14th September 2022

Whether a provision that is applicable to a citizen will be applicable to an army person as

well? – There are special provisions for army personnel. So, they may not necessarily be tried
under the same provisions as ordinary citizens.

Ajoy Kumar v Union of India – 1984 SC – if there are two legislations which apply to a
particular situation, the SC made the following points:

(i) The Legislature has the undoubted right to alter a law already promulgated through
subsequent legislation;

(ii) A special law may be altered, abrogated or repealed by a later general law by an express
provision;

(iii) A later general law will override a prior special law if the two are so repugnant to each
other that they cannot co-exist even though no express provision in that behalf is found in
the general law; and

(iv) It is only in the absence of a provision to the contrary and of a clear inconsistency that a
special law will remain wholly unaffected by a later general law.
First you have a special legislation and tomorrow a general legislation is brought –
provisions directly in cinflict – which one will prevail? – if there is a lot of inconsistency,
then the special law will prevail.

Maruti Udyog v Ram Lal – 2005 SC – both statutes contained nonobstante clauses. (For
example – IBC, DRT, Banking Regulatiosn). The SC said that when both statutes contain non
obstante clauses are special statutes, an endeavour should be made to give effect to both of
them. If still there is a conflict, the later one shall prevail.

NOTE – companies act, a general law, provided for a special forum for adjudication.
Competition law was a special law and there was conflict.

Illustration – there are certain workmen in the industry. Workmen compensation act (1923),
fatal accident act (1855) – which one will apply? – 1966 SC – the court stated that though
you have the right to seek compensation, at the same time, whatever remedies are available
under the fatal accident act, nobody can stop a workman from claiming that.

Illustration – CPC v Copyright – copyright will apply. A civil suit is there, but special
reference to copyright act. However, if there is any general prvision available in addition to
this, then the aggrieved party cannot be stopped from doing that.

If there are two remedies available one under general law and another under specific law,
and you have picked one, say copyright act, then courts will interpret the statute in a strict
sense. A special legislation is interpreted strictly because it is already very specific. In general
law, there are wide and comprehensive words, unlike specific laws where the words are
already clear.

Generalia specialibus non derogant

Legis posteriores priores contriaes abrogant – override the provisions of a previous law. This
maxim is subject to the above maxim.

Nagendra Chand v Probhat Chand – AIR 1942 Cal HC 607 – see for the above two maxims.
An act has the authority to take cases of certain jurisdiction. It would follow the general law
or exercise the jurisdiction that has been provided to it.

Mahalakshmi Metal Industries v K Sushila Devi – The process to evict a tenant is so tedious
under the special act. TPA 1882 and Tamil Nadu Buildings Lease and Rent Control Act. The
rent control act is a special piece of legislation causing inroads into the general principles of
law as enunciated by the TPA. A special legislation like this cannot be interpreted in a wide
way so as to further infringe the general rights available under the general law. If this
background is kept in mind, most of the problems would not arise.
Kameshwar Singh v State of Bihar – talks about repugnancy. If tehre is any conflict, then
reconcile it. Different provisions of the same statute which are apparently inconsistent with
one another should be so construed as to give effect to all the provisions so as to avoid the
repugnancy. This is harmonious interpretation.

In re: B, an advocate of Benaras – AIR 1943 All HC – construe them so that they are
consistent with each other. Adequately utilise the provisions of both of them.

State of West Bengal v Mohamad Zaifi – AIR 1966 SC – at times the same statute may have
general as well as special provisions. In this case, there was a person who was acquitted by a
special court. It stated that they don’t have the jurisdiction. The issue was thwther the person
who had been acquitted by a spcial court for lack of jurisdiction, and then government
notifying something and then the special court was bestowed with the power and then the
person was arrested and tried. Under section 403 of CrPC, the same person was tried twice.

15th September 2022 (Shikhar)

Nirbhaya judgment: on juvenility claims. Ordinarily, there can be no repeal by implication.

Ram Nath v Hazarilal (1929): how provisions of old law stand repealed by implication when
newer provisions are enacted - a general statute could be treated as impliedly repealed by a
local or special statute, because ordinarily, the general law of the country was not altered by
special legislation made w/o particular reference to it. Ajoy Kumar v UoI (1984) - Repeal by
implication of an earlier enactment is not to be favoured, especially when the earlier
enactment dealt with a particular subject. But, if the later statute is so worded that the repeal
flows from it as a necessary consequence, it is the court’s duty to give effect to it.

Mandatory/Directory Provisions: Lila Gupta v Laxmi Narain (1978) - s 15 HMA: whenever a

statute prohibits a certain thing being done thereby making it unlawful w/o providing for
consequence of the breach, it is not legitimate to say that such a thing when done is void
because that would tantamount to saying that every unlawful act is void. Marriage in breach
of proviso to s 15 shall not be a nullity.

Sutherland’s volume on statutory construction: “The difference between mandatory and

directory statutes is one of effect only. The question generally arises in a case involving a
determination of rights as affected by the violation of, or omission to adhere to, statutory
directions. This determination involves a decision of whether or not the violation or omission
is such as to render invalid Acts or proceedings pursuant to the statute, or rights, powers,
privileges or immunities claimed thereunder. If the violation or omission is invalidating, the
statute is mandatory; if not, it is directory.”
Components: Why was the case chosen? What principle was invoked? Which cases were
referred? What new dimensions were covered?

19th September 2022

Case – (ask goutam to tell the name) – Section 4(2) of the Special Courts Act. Section 29 of
the limitation act also uses the word ‘may’.

State of Karnataka case –

Sometimes shall may also be interpreted as ‘may’.

If the time period says within 40 days it ‘may’ be applied. Does the legislature have the power
to extend it beyond 40 days? –

Siddheshwar Sahkari Sakhar Karkhana Ltd v CIT Kohlapur – Maharashtra cooperative

societies act 1960 – Section 61A – Convert such deposits into shares after repayment of the
loan.

(1) Every year the society shall collect from the members non-refundable deposits at the rate
not less than Rs.1 per ton of sugarcane supplied by them. The rate of deposit will be decided
by the Board of Directors. However, in determining such rate the board shall consider the
amount required for the repayment of loan of I.F.C.I. and bank loan taken towards capital
expenditure and the repayment of time deposits received from the members. The rate of
interest on such deposit shall not exceed 12 percent so long as the Government share capital,
the long term loans of IFCI, Maharashtra State Co- operative Bank and other financial
agencies advanced for capital expenditure has not been repaid. The NRD collected as above
shall not be refunded to the member till the Government share capital and the term loans
taken from I.F.C.I. and other financial institutions for capital expenditure are repaid fully.

(2) The Deposits collected as above shall not be refundable to the members. However, the
Board may convert such deposits into shares after repayment of loans taken towards capital
expenditure from Maharashtra State Co-operative Bank, Government share capital and long
term loans taken from other banks for capital expenditure. The amount of fixed deposits
collected by the society from members shall not exceed three times the shares held by the
members. Thereafter, such fixed deposits shall not be accepted by the Karkhana. The
Karkhana has to collect the deposits until it holds Government share capital and has other
loans outstanding.
(3) On a member ceasing to be a member as provided in bye-law No. 22, the amount
standing to the credit of his account as a nonrefundable deposit may be transferred to any
other member's account at his option and approval of the board of directors or shall be
refunded to such members or his legal heirs with the approval of the board of directors after
the lapse of one year from ceasing to be members, on recovery of all amounts due from him if
any, and after considering the financial position of the society. However, the total amount of
such refund in any year shall not exceed 1/10th of the total non-refundable deposits standing
at the beginning of the year.

(4) The amount of deposits so collected shall be utilized for the repayment of term loans
taken for the capital expenditure as mentioned in sub-clause (2) above.

(5) The amount of deposit so collected from the members or part thereof can be transferred
to the name of any other member on an application by the member. However, consent of
both members in writing shall be necessary.

Societe de traction v Kamani Engineering –

Both the cases talk about directory and mandatory provisions.

Whenever direction is covered with a duty, then there is no discretion. Generally speaking,
the word ‘may’ is discretionary. When you say discretionary, there should be elasticity in the
provision. If it is inelastic, then it becomes mandatory. If there is no option to circumvent the
obligation, then it is mandatory.

RBI v Peerless General Finance and Investments Company Limited – the case was concerned
with an investment scheme. If you invest 77 rupees annually, then you get 1000 rupees after
10 years. You also get 100 rupees as bonus. The finance companies that undertake the
business of insurance are called insurance companies. Peerless is basically an insutance
company which afer the incorporation of LIC became a finance company.

Chit Fund/Prizes/Ponzi Schemes – there are certain business and investments which are
being sought by finance companies which are permissible. Some of them allure people, take
money from people and run away.

They had multiple clauses – suppose you paid two instalments but couldn’t pay the third
one, then it would go into freezing period, which was three years.

In the example that we gave we said a subscriber investing Rs.77 every year for ten years will
get, at the end of the tenth year, a return of Rs. 1000 by way of 'Endowment Sum' and Rs.
100 as bonus. Treating the total sum of Rs. 1,100 as the amount which the investor gets back
on his ten-year annual invest- ment of Rs.77, the yield on his investment works out at
compound interest of about 6% or simple interest of a little over 7%. This is on the
assumption that he does not commit default but pays his annual subscription regularly. But
consider what happens to the investments of those who commit default; a subscriber who
defaults in payment of annual subscription after payment of the first subscription, forfeits
the subscription previously paid by him.

A subscriber who pays the first two subscriptions but commits default thereafter is entitled
to have a refund of the subscriptions paid by him but only at the end of the full endowment
peri- od. That is to say, the amount invested by the subscriber upto the time of default will be
with the company, earning interest for the company but nothing for the subscriber himself.
The subscriber who commits default after payment of two annual subscriptions is entitled to
have the surrender value paid to him after the expiry of three years from the date of
commencement. The surrender value is 90% of the subscriptions paid by him excluding the
first year's subscription. In other words, if a subscriber who commits default after payment
of two subscriptions opts for immediate payment after three years he forfeits his first year's
subscription and 10% of the subsequent years' subscription.

On the other hand, if he opts for payment at the end of endowment period he will get a
refund of the subscriptions paid by him but without interest and without bonus. If he
commits default after paying three years' subscription but opts for payment at the end of the
Endowment period he will get back a pro- portionate part of the Endowment Amount and
this without bonus. The yield will be very much lower than the 6% com- pound interest or 7%
simple interest that we mentioned earlier. The subscriber is always at the losing end. It is a
perfect case of 'Heads I win, tails you lose'.

The other judge said this – I share my brother's concern about the mushroom growth of
financial companies all over the country. Such companies have proliferated. The victims of
the schemes, that are attractively put forward in public media, are mostly middle class and
lower middle class people. Instances are legion where such needy people have been reduced
penniless because of the fraud played by such financial vultures. It is necessary for the
authorities to evolve fool-proof schemes to see that fraud is not allowed to be played upon
persons who are not conversant with the practice of such financial enter- prises who pose
themselves as benefactors of people.

Ponzi schemes are considered to be fraudulent in nature. Chit schemes operate till date.

Para 19 (b) – prize chits

Para 22 – powers of RBI – they claimed that this is not to be regulated by the RBI
PCMS – prevention of money circulation scheme – this is a banning act – whether it is
applicable to the scheme or not

Para 32 –

Para 35 – what does the word ‘include’ mean

Para 37 – interpretaiton must depend on the text and the context. They are the basis of
intenratpetion. Text is the texture and context gives the colour. Neither can be ignored.

These are the two main considerations for regarding any rule as mandatory:

1. Absence of any provision for the contingency of any particular rule not being complied
with or followed.

2. Serious general inconvenience and prejudice to the general public would result if the act in
question is declared invalid for non-compliance with the particular rules.

Dal Chand v Municipal Corporation Bhopal – AIR 1983 SC – The court said that there is no
formula to find out whether a particular provision is mandatory or directory. What you need
to do is to look at the broad purpose of the act. Look at the object of the provision and see the
link between the purpose of the statute and object of the provision.

There is no general rule that an enactment expressed in negative and prohibitory language
must be considered as absolute. Nor on the other hand is there any general rule that an
enactment expressed in affirmative language must not be considered as absolute.

21st September 2022

Essence of the matter

Wherever we use the word ‘mere’ matter of the form

When a particular provision of a statute relates to some immaterial matter as to which

compliance with the statute is a matter of convenience rather than substance, or where the
directions of a statute are given merely with a view to the proper, orderly and prompt
conduct of the business it is generally regarded as directory unless followed by words of
absolute prohibition. Where no substantial rights depend on the statute, no injury can result
from ignoring it and the purpose of the legislature can be accomplished in a manner other
than that prescribed with substantially the same results.

Three fundamentals tests which are applied to determine the mandatory or directory nature:

1. on a consideration of the scope and objective

2. on a consideration of justice and balance of convenience

3. on a consideration of justice and nature of a particular provision, here nature refers to
whether it refers to any public duty or rights

If there are two provisions in the same act, say section 54 and 56 of the CrPC, both talk aboyt
two different ways – which is more appropriate in the situation?

State v Ram Chand – Allahabad HC – 1965 – the issue is whether the police offer can arrest
without warrant.

NOTE – section 53A of TPA talks about part performance. The issue here was that when
some committee had suggested that inclusion of Section 53A, then can the committee’s
report can be utilised for the interpretation of the provision.

Naziruddin v Sitaram Agarwal – 2003 SC – it talks about rent. Rajasthan premises control of
rent and eviction act 1950. The court had determined the amount of rent – within 15 daus of
the date of determinatiomn or within further time not exceeding 3 months as may be
extended by the court. The purpose of the rent is for the benefits of tenants. These benefits
can be enjoyed only after strict compliance with statutory provisions.

Only where the acts provide for condotiona of time there only court possesses the power and
not otherwise. Section 5 of the limitation act shall not be applicable as the court does not
have the power under the act.

ABC v State (NCT of Delhi) – 2015 SC – the identities of the parties have not been revolved.
There was a child born without marriage. The act in question is guardianship and wards act
1890 – section 7. She had applied to the court for declaring her the sole guardian of the son.

A notice is to be sent to the paretnets of a child before the guardian is appointed. Here, the
mother wants to the guardian.

There is a provision which requires that notice should be served to the parents. She contends
that why is it required that the father’s name be published. If the father has any objection,
then he can come to the court.

The Appellant’s appeal before the High Court was dismissed in limine, on the reasoning that
her allegation that she is a single mother could only be decided after notice is issued to the
father; that a natural father could have an interest in the welfare and custody of his child
even if there is no marriage; and that no case can be decided in the absence of a necessary
party.

In this case, the court discussed a lot of literature. Section 6(b) of the Hindu Minority and
Guardianship Act was read. There, primacy was given to mother over father. In Mohamedan
law, primary was again given to mother. They talked about laws from the UK and Ireland.
It is thus abundantly clear that the predominant legal thought in different civil and common
law jurisdictions spanning the globe as well as in different statutes within India is to bestow
guardianship and related rights to the mother of a child born outside of wedlock.

We recognize that the father’s right to be involved in his child’s life may be taken away
if Section 11 is read in such a manner that he is not given notice, but given his lack of
involvement in the child’s life, we find no reason to prioritize his rights over those of the
mother or her child.

The court referred to the case of Lakshmikant Pandey v Union of India. The intention of the
Act is to protect the welfare of the child, the applicability of Section 11 would have to be read
accordingly. In the above case, this Court prohibited notice of guardianship applications
from being issued to the biological parents of a child in order to prevent them from tracing
the adoptive parents and the child.

The court also mentioned Gita Hariharan v RBI. The RBI had refused to accept an
application for a fixed deposit in the name of the child signed solely by the mother.

Section 11 is purely procedural; we see no harm or mischief in relaxing its requirements to

attain the intendment of the Act. Given that the term “parent” is not defined in the Act, we
interpret it, in the case of illegitimate children whose sole caregiver is one of his/her parents,
to principally mean that parent alone.

The law is dynamic and is expected to diligently keep pace with time and the legal
conundrums and enigmas it presents. There is no gainsaying that the identity of the mother
is never in doubt. Accordingly, we direct that if a single parent/unwed mother applies for the
issuance of a Birth Certificate for a child born from her womb, the Authorities concerned
may only require her to furnish an affidavit to this effect, and must thereupon issue the Birth
Certificate, unless there is a Court direction to the contrary.

The best interest of the child and the intent of the act is the same.

Food Inspector, Punalur Municipitality v K Hari Kumar – Kerala HC – 1991 CrLJ 641 – the
court followed the Dal Chand case – Identical provisions in the statute are either directory or
even if treated as mandatory in a general sense, a substantial compliance is sufficient. The
prosecution can fail only if the non-compliance is shown to have caused prejudice to the
accused.

22nd September 2022

In the US, there is a decentralised model of JR. It is exercised despite their not being a
written mandate. In Columbia, there is the Supreme Court, which is the final appellate court
and there is a constitutional court which exercised JR.

In India, we have a partially diffused model of JR. it is only the SC and the HCs that can
exercise JR. there is a multiplicity of courts exercising JR. secondly, there is a textual
provision for JR in India, i.e., Article 13.

JR always entails striking down legislative or administrative action for incompatibility for
higher law. In the context of Article 13, it deals with incompatibility with fundamental rights.

When you are checking the legislature and the executive, you are checking them insofar as
they are touching individual civil liberties. Baxi refers to it as political … .

The limitations placed under article 13 are similar to the limitations placed in the UK’s
human rights act.

Can the courts as per the text strike down a legislative or executive measure?

Policy measures of the government are not explicitly included under article 13. In 1951, India
formed the world’s first family planning ministry.

In the 1960s, the world bank funded the insertion of IUDs in millions of people in India.
There was a post colonial anxiety regarding the population boom.

Article 13 does not use the term policy but talks excplitly about acts, ordinaces, customs and
usages.

This adjudicatory bureaucracy is very explicit if you look at the madate of the courts. The
case load of these courts shows this.

There is a highly bureacratiticsed judiciary ata the top.

In the initial years, preventive detention orders were made. There were fears regarding
communist insurgence etc. the courts at that time did not intervene with this. Even today,
the regime of preventive detention stays intact.

However, the role of courts has changed – the courts are not just creating jurisprudence, but
laying down terms in the sense of demoprudence. [baxi said this]

Change of role after Shankara case

Congress regime was there

In 1967, there was a chalalegne to an amendement – Golakh nath case – in this case, te court
broadened the notion of what law under article 13 means. Here the court said that the
amenement would have to be evaluated on the basis of what cannot be amended or touched
upon. The court’s conception of review was very limited to part 3, which is also the idea of
review under article 13. Although the court is asserting far greater judicial authority than
what the constitution envisages, it is asserting it within the sphere that is delimited by the
text of article 13.

In keshavananda case, each judge gave an illustrative list of what constitutes basic sturcutre,
but there was no judicial consensus. The ratio fo the case is difficult to determine. the ratio of
the alleged majority is clear only by that there is something called the basic structure.

The german constitution makes fundamental rights unamendable. The Indian supreme court
came up with implicit unamendability. If you violate this, you violate basic structure. The
Indian supreme court said that you may alter part 3 rights but cannot change basic
strucurere – departed from the german constitution here.

In india, the court operates as a strategic actor.

The doctrine is so broad that the court becomes the final arbitrator of the constitution.

Raju Ramachandran – book written in honour of keshavananda Bharti – he said that the
judges thought it elementary that the constitution is supreme, knowing all along that the
constitution is the judges’ saviour

HLA Hart – the court is a legal sovereign. It is not just checking whather the laws or
compatible or not, but becoming the final arbitrator of what the law finally is

Indira Gandhi v Raj Narain – 1975 – in this case, only Justice Mathew dissented. The court
exercised some degree of independence (CJI Ray was appointed by Indira Gandhi, yet gave
this decision).

In order to exercise JR in the future, the court is taking a decision which is doing something
that is agains the government while not affecting it. The court signalled that this election is
valid, but if something like this happens again, then it’ll be quashed. This shows that the
court is becoming a political actor.

There is a widenining of the ambit of what the court is willing to interfer in.

Habeas corpus case –

When article 21 was being drafted, one of the wordings being proposed was “due process”. It
was rejected because it gave too much judicila discretion. When the court says that the
procedure must be just and fair, this is procedural due process and not substantial due
process. This was a political question back then – it was Maneka Gandhi’s passport that was
impounded a year after the emergency ended.

Minerva Mills – 42nd Amendment –

The very nature of JR can be highly intertwined with the social and political situation of the
country.

Do articles 13 and 32 have epistolary jurisdiction? – broadening the meaning of “appropriate

proceedings.”

What does the court do when it exercises epistolary jurisdiction? – when the court essentiall
assumes this jurisdiction, it ensures that – articles 13 and 32 – there is a spefic way to
challenge a law under 32 and 246, fees to be paid, rules to be followed , the court gives a
response after all the procedrural requirments are met – when episotrayrl jursirdiciton is
assumed, the court does away with a lot of these procedural requirements.

Hussainara Khatoon case – detention of undertrials – The court not only widened its
jurisdiction but it assumed jurisdiction with something far broader – in this case, the right to
a speedy trial was recohnised.

What the court did was that it violated the kind of cases it was hearing, the scope of laws it
was reviewing, the interpretation it was giving, the judges were becoming far more active
actors in the political space.

26th September 2022

Noscitus a sociis – If a word is unclear, look at the ‘company’ of the words.

Incense – (context: pooja) –

If a word is there, you look at the context – for incense, look at the words near it

Example 2 – service – skilled/unskilled employee of the industry – if the word teacher is put
somewhere, would it fit somewhere? –

Godfrey Philip v State of Uttar Pradesh – sometimes the word might be so peculiar that
whatever you use before or after, the meaning of the word won’t change. But at times, the
words prior to that and after that dominate the meaning. This is why the word must be in
harmony. In this case, the word in question was ‘luxuries’

Gambling, entertainment, amusement, betting – all luxuries

Entry 62 of the State List – taxes on entertainment and amusement to the extent levied and
collected by a Panchayat or a Municipality or a Regional Council or a District Council.

This legislation imposes taxes on tobacco, tobacco products and intoxicants. Whether this
entry is talking about the goods or the activity. It is talking only about the activity and not the
good. It is talking about the selling of tobacco. Therefore, the court held that looking at etnry
62 of the state list, it did not permit the levy of tax on goods and articles and thus, it should
be imposed on the activity.

We are aware that the maxim of noscitur a sociis may be a treacherous one unless the
'societas' to which the 'socii' belong, are known. The risk may be present when there is no
other factor except contiguity to suggest the 'societas'. But where there is, as here, a term of
wide denotation which is not free from ambiguity, the addition of the words such as
'including' is sufficiently indicative of the societas. As we have said the word 'includes' in the
present context indicates a commonality or shared features or attributes of the including
word with the included.

This is one rule which is inescapable.

It is not about the context but continuity. If there is any deception, you have to remove that.
It is not about removing the mischief. It is only about what the predecessor or the successor
word is indicating at. Compare this with ejusdem generis rule.

Crawford – he says that like all other principles of construction, noscitur is to be used only as
an instrumentality for determining the intent of the legislature where it is in doubt. If the
intent of the legislature is plain, this particular maxim must give in. it is permissible to
determine the meaning of the words by a reference to the associated words provided such
reading of it is not inconsistent with the general intent and ambit of the rule. In such cases,
this maxim becomes a guide and at times even a key to the ascertainment of the legislative
intentment.

Pradeep Agarbatti v State of Punjab – 1997 SC – the act in question was the Punjab General
Sales Tax Act, 1948 – when articles are grouped together, each word in the entry draws
colour from the other words. The word which was in question here was ‘perfumery’. This
word was there in entry 60. Whether the term perfumery included dhoop and agarbatti.

The concerned schedule of the Punjab general sales tax act 1948 drew its colour from
toiletries and dhoop and agarbatti are not included.

Ahmedabad private teachers’ association v administrative officer – 2004 SC – payment of

gratuity act 1972, section 2(e) – the word was ‘employee’ – it stated that skilled, smei-skilled,
unskilled, manual, supervisory or clerifcal work, terms used in Section 2(e) – whether the
teachers are included – the court said that teachers are not included and applied noscitor –
said that word should be understood by the company it keeps and the actual order of three
words in juxtaposition also indicated that one takes colour from the other. The rule here is
immediate context rule.

Maxwell – he said that where two or more words of sucetabinle or analogous meaing are
coupled together, noscitur a sociis are understood to be used in their cognate sense. They
take as it were their colour from each other, i.e., the more general is restricted to a sense
analogous to the less general.

NOTE – Ejusdem generis is easier as far as the application of words is concerned.

27th September 2022

Ejusdem Generis

Consider the word ‘industry’. You will find the definition in the industrial disputes act. To
interpret it, you will look at the complete set of words. No clear cut distinction is possible.

Reddendo singula singulis

Uttar Pradesh State Electricity Board v Harish Chandra – 1979 SC – enumeration of specific
word

2. subjects of enumeration constitute

3. the class or category is not exhausted by the enumeration

4. the general terms follow the enumeration

5. there is no indication of a different legislative intent

Legislative intent will be the test. If there is no indication that something else could be there,
then look at the word provided, if the legislative purpose of a statute is such that a statutory
series should be read ejusdem generis, then rule will help you. But if not, the rule is more
likely to defeat than to fulfil the purpose of the statute.

Once you let it dominate, the true application of the doctrine you are invoking might not be
there.

Dharmendra Singh Bhadoria v State of Madhya Pradesh – 2004 MP HC – the HC tried to

distinguish between these two principles to arrive at the interpretation of the word in
question. The term they are trying to identify is in section 25(o)(7) of the industrial disputes
act. The words are “exceptional circumstances.” The other phrase is “or the like.” The court
said that when you are talking about “or the like”, you apply ejusdem generis. For
“exceptional circumstances,” use noscitur. However, the court failed to give reasons for doing
so.

State of Bombay v Hospital Mazdoor Sabha – 1960 SC – hospitals are to be included within
the meaning of the term ‘industry’. Whether there is a dispute between the management and
the employees, and whether it would fall within the meaning of industrial disputes. They
interpreted the phrase “undertaking.”

Justice Gajendragadkar applied the noscitur rule to interpret the term undertaking. The
word undertaking appears after trade and business. He felt that noscitur is the only rule of
construction here. Undertaking cannot have a narrow meaning. The wider word of a wider
connotation has intentionally been used.

Where the intention of the legislature is to give wider meaning, noscitur is going to apply.

It can also be applied where the meaning of the words of wider import is doubtful; but,
where the object of the Legislature in using wider words i clear and free of ambiguity, the
rule of construction in question cannot be pressed into service.

Noscitur is wider than ejusdem generis.

Suit, prosecution, other legal proceedings – which one will apply, noscitur or ejusdem
generis – what would other legal proceedings refer to? – the rule of noscitur will apply here.

Legal proceedings for violation of law in the court might be arbitration. The arbitration is
emanating out of some legal proceeding only. The authority in arbitration is not an executive
authority but an adjudicator.

Assistant Collector of Central Exercise v Ramdev Tobacco Company – Section 40(2) of the
Central Excise and Salt Act 1944 – since the assistance collector of central excise is there,
they might be an executive authority, but it may not be a legal proceedings necessarily.

Ritu Gupta’s opinion – The SC has mentioned that the term other legal proceedings must be
interpreted ejusdem generis. They haven’t even mentioned noscitur. When we are talking
about the genus, the rule of noscitur will be applicable, where you will see the company of the
courts. RG doesn’t agree with the court’s application of the ejusdem generis, she feels that
noscitur should be applied.

In the UP State Electricty case, it was said that the words might have a narrow effect and
should be interpreted in a broader way.

NOTE – tribunals amount to legal proceedings. They are established under law. Look at the
powers of the person and the capacity under which they are conducting themselves.
The genus envisaged by the preceding words not having been exhaustive, the legislature has
deliberately wished to bring other items within the ambit of the word.

To apply ejusdem generis, there must be a distinct genus or category – the court said in a
case

The specific words must apply not to different objects of the widely different character, but to
something which can be called a class or kind of object, where this is lacking, the rule will not
apply and mention of single species will not constitute a genus.

The distinction between the doctrines of construction is ejusdem generis is applied where
general terms follow the expression of narrower connotation preceding it, on the other hand
where two or more words which are susceptible of analogous meaning are complied together,
they are understood to be used in their cognate sense.

NOTE – These two are not rules of law but simply rules of construction.

Wherever there is any incompatibly between the general and specific words, you curtail the
meaning of general words to utilise the specific words. This is not an ideal situation though.
This is called dangerous yardstick. Measuring the legislative intent is difficult. The
application should be made cautiously. The intention is clear but artificially you import
ejusdem generis, then it will be a dangerous yardstick.

In reference to ejusdem generis:

1. intention of the legislature is very clear in the state, then do we need to apply ejusdem
generis? – it need not be applied because the intention is clear. The rule will apply only
where there is some confusion or ambiguity.

2. if the application of the rule would damage the clear meaning of a term, then would it be
applied? – it will not be applied

Grasim Industries v Collector of Customs, Bombay – 2002 SC – the court mentioned 5-6
tests for ejusdem generis.

If general words are there and no specific words, need not apply ejusdem generis

Sutherland – has talked about ejusdem generis in detail in his commentary.

29th September 2022

Lecture 1 – Cardozo

After world war I, there was an economic crises and courts tend to become conservative.
When Cardozo wrote this, it was considered to be ground-breaking. It revolutionised what
we knew of judicial process at the time. Cardozo said that formalism beyond a point is not a
reality of the judicial process.

Why is applying precedent in a logically consistent manner the default mode?

Heir presumptive – when king is alive, oldest child is the heir presumptive

Method of logical progression – unless it doesn’t answer, it remains default for judges

We cannot view adherence to precedent in a vacuum. Need to see the reasons for adherence
to precedence. In India, words ‘judicial propriety’ are often used. Is judicial propriety the real
reason for adherence to precedence? – Cardozo dives into this. Two things in the first
lecture- introducing the issue and explaining what the method of philosophy entails.

He says that judges avoid answering questions about how they decide. If they are to answer
this question,

if the statute is giving an answer, the judge is making an interpretative choice. If the statute
does not answer, the judge will look at precedents.

“If no precedent is applicable, how do I reach the rule that will make a precedent for the
future?” - explicitly looking at judge made law

If I am seeking logical consistency the symmetry of the legal structure, how far shall I seek it?
– don’t have multiple inconsistent decisions.

At what point shall the quest be halted by some discrepant custom, by some consideration of
the social welfare, by my own or the common standards of justice and morals? – a very clear
realist strand can be seen here in this thinking. The judge’s own idea of justice also
influences the decision.

“Into that strange compound which is brewed daily in the caldron of the courts, all these
ingredients enter in proportions.” – he says that he is not looking at the normativity of
judgment law. The common law method has been entrenched in England for long now. Even
America is not a new place. He is not exploring what judges ought to do, but what they are
doing and how are they doing it.

Look at the right to religious freedom in India. There are inconsistencies in court’s
jurisprudence. Sabarimala, shah bano. Look at benches inter se as well. In the Sabarimala
case, justice Indu Malhotra dissented. Justice Chandrachud and justice Nariman arrived at
the same decision but followed very different reasoning – there are inconsistencies inter se
benches.
“In such attempt at analysis as I shall make, there will be need to distinguish between the
conscious and the subconscious.” – the conscious factors are guiding principles of conduct.
These are the more conscious factors that determine how a judge reaches a decision.

Trump v Hawaii – trump placed an embargo on immigration. The court gave its decision in
favour of trump. Two of the judges in this case were children of immigrants themselves.
Identity is not a straight jacketed things, there is intersection of identities.

Identity is a subconscious factor. The judge may not be fully cognizant that it might have a
role to play in judicial making. If it was explicit, it would be bias.

Whether judges admit it or not, and no matter how much we say that they are judicial
theories, there is something subconscious that does have a role to play. Inherent instincts,
traditional beliefs, acquired convictions, all have a role to play.

“Judges cannot escape that current any more than other mortals. All their lives, forces which
they do not recognize and cannot name, have been tugging at them-inherited instincts,
traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception
of social needs, a sense in James's phrase of "the total push and pressure of the cosmos,"
which, when reasons are nicely balanced, must determine where choice shall fall.”

No matter how objectively you try to see something, we never see from an outlook other than
yours. No matter how objective the outlook is, it is your own. So, there is a subjective
element to every exercise of judicial objectivity.

He says that a quantitative analysis of judicial behaviour is lacking. Even today in India, such
analysis is missing.

Judicial works – gone from Hagiography to biography – hagiography does not look at the
jurisprudence of the judge or their works critically.

Cardozo is saying that in the absence of good empirical judge what sees how judges are
deciding, he says that we tend to neglect the work that the judge has done that may not be
correct.

But until that scholarship is found and enlists itself in the task, there may be a passing
interest in an attempt to uncover the nature of the process by one who is himself an active
agent, day by day, in keeping the process alive.

Before we can determine the proportions of a blend, we must know the ingredients to be
blended. – in most cases, bare literal interpretation is involved. For example, the bright line
rule. It says that the age of majority is 18 years. What happens if the person is 17 years and
364 days old. After the Justice Verma Committee report, 16 year olds can also be held liable.
Look at speed limit of 65, for 66 you will be fined but 64 is okay.

Judge made law appears at the bottom of the hierarchy as per the traditional common law,
as per Cardozo.

He says that judge made law is subordinate and secondary to the law made by the legislature.
The enactment of statutes does not make the work of judges perfunctory or mechanical.

Purposive construction – now matter how obscure the intent of the legislature was, it is
judiciary’s exercise to find out what the legislature meant. He says that that is not always the
case. At times, the ascertainment of intention may be the least of the judge’s trouble for
ascribing meaning to the statute. How do you interpret the contract act today when you have
disruptive technology? –

At times, the difficulty of interpretation arises when the legislature has not foreseen
something like this happening. The court is operating in a complete vacuum of legislative
intent. This happens more in a developed legal system where the statutes are very old. For
example, in India the procedural laws and contract law have operated without disruption for
a long period of time.

For example, in Navtej Johar, if you look at the constituent assembly debates, homosexuality
does not feature once. They did not even contemplate sexual orientation. Then how did the
court give article 15 this interpretation? The judges said that a transformative vision should
be given. The constituent assembly should have a transformative goal. That was not the
original intent, but the intent will have to be moulded to meet the current needs. That is why
there is a need to look at constitutional morality and not societal morality.

Cardozo says that there are two tasks that a judge as - to make more profound the discovery
of the latent meaning of positive law. Second task, the filling of the gaps which are found in
every positive law in greater or less measure."

He is referring now to the continental school of thought. This is the civil law background.

The statute, they say is often fragmentary and ill-considered and unjust. The judge as the
interpreter for the community of its sense of law and order must supply omissions, correct
uncertainties, and harmonize results with justice through a method of free decision--"libre
recherchescientifique."

Courts are to "search for light among the social elements of every kind that are the living
force behind the facts they deal with."'

There is an approach here which is also very sociological.

In the long run "there is no guaranty of justice – Shardul says that this is a far fetched
argument because it would mean that stare decisis means nothing.

Interpretation, thus enlarged, becomes more than the ascertainment of the meaning and
intent of lawmakers whose collective will has been declared. It supplements the declaration,
and fills the vacant spaces, by the same processes and methods that have built up the
customary law.

No matter how much you codify the law, the function of judicial law making exists for the
human need of clarifications. The IBC, commercial courts act etc came into being within a
matter of years, yet there are so many cases looking to clarify the legislation and limit the
scope of legislation. The legislation cannot meet the societal need of clarifications.

Cardozo says that the judge becomes the living oracle of the law. He says that the first thing
that a judge does is compare the case before him with precedents. Even below these
precedents, there is another lawyer of fundamental juridical conceptions – like what is
property, etc. Cardozo explicitly referrers to Hofield. Hofield tried to break down legal
conceptions into certain fundamental terms and make interpretation easier.

“I say that because in the work of a brilliant teacher of this school, the late Wesley Newcomb
Hohfeld, I find impressive recognition of the importance of this method, when kept within
due limits, and some of the happiest illustrations of its legitimate employment. His treatise
on "Fundamental Conceptions Applied in Judicial Reasoning" is in reality a plea that
fundamental conceptions be analysed more dearly, and their philosophical Implications,
their logical conclusions, developed more consistently I do not mean to represent him as
holding to the view that logical conclusions must always follow the conceptions developed by
analysis. "No one saw more clearly than he that while the analytical matter is an
indispensable tool, it is not an all-sufficient one for the lawyer. "He emphasized over and
over again" that "analytical work merely paves the way for other branches of jurisprudence,
and that without the aid of the latter, satisfactory solutions of cannot be reached.”

When you are comparing and contrasting precedents, the judge is looking at a pile of
authorities. The first task is to identify what is the ratio. This in itself is a task because judges
love obiter. Example – Puttaswamy – the operative portion is only the last part, the rest is
obiter.

What happens is that the Supreme court acts in a manner that it doesn’t follow its rule – an
informal rule developed that a decision can be overruled only be a larger bench. There are
instances when even coordinate sized bench decisions are also overruled.
Shrutanjaya Bhardwaj and Ayush Baheti – the large judge bench rule is not working in the
way it should

Aparna Chandra research – 115 cases of two judge benches, 56 of them overruled the
decision of other 2 judge benches.

Cardozo says that every judgment has a generative power. Every precedent has a directive
force for future cases of same or similar nature. There are reasons for it, psychologically it
may be a reason of habit. Not all principles that are laid down are there, some of them are
refined.

The common law method is distinguished from legislative simplicitor. There is an

incremental change in approach towards adjudication. In the Puttaswamy and Navtej case,
the judge said to not look at fundamental rights in isolated silos.

It is not a method of deduction, but a method of induction. There is a case. Next case comes,
the judge tries to generalise from particulars. –

Common law method when operates in a vacuum does induction – the court says that
something should be done in all future cases. For example, DK Basu case. See how labour
law has taken shape in India, it is very incremental. In different cases, the court is determine
if it is an industry or workmen. It is an incremental approach fuelled by induction.

Cardozo says that the reason for this is not that judges are in pursuit of elegantia juris. When
there is inuniformtiy in decision making, even if decisions correct – there is an underlying
notion of justice which requires courts to adhere to precedent and adopt to logical method of
precedence – justice must not only be done, but seen to be done.

Riggs v Palmer – legatee murdered the testator. Facts in the reading.

In choosing a rule, the court makes an election, which is based on justice – social and moral
considerations come into picture.

When the rules of principle diverge, which one is to be applied depends on the choice – page
36

3rd October 2022

Recap – Cardozo is providing an insider’s view to the judicial process in the sense that he is
seeing the sources of info that a judge looks at, the weightage that is given to them, the
factors that affect them, etc. When should a judge follow precedent and when should they
not follow it, to what extent should the judge follow logical symmetry, to what extent should
symmetry be followed, etc. There are factors – conscious and subconscious – that affect
judicial decision making.

As long as there is a straightjacket answer, the issue is just application of the law. The judicial
process in such cases is of limited interest. However, when there is a gap in the law, it
assumes significance. When the legislature does not contemplate something, the judge has to
provide meaning; they have to put themselves in the shoes of the legislature. Whenever a
judge passes a judgment in such cases, this judgment has a generative power. Every
precedent has a directive force for future cases of the same or similar nature.

Regardless of whatever is the psychological basis for the quest of uniformity or tendence of
following precedent, it has formed a foundational aspect of common law method of
adjudication. Point on inductive and deductive, see above (When you deduce something – all
mammals have fur. Rat is a mammal therefore it has fur. This is deduction. Rat is a mammal
and has fur. Bear is a mammal and has fur. Therefore, all mammals have fur. This is
induction.) induction is followed in common law systems. When there is a vacuum (recall the
industry example)

If a principle is proving to be inapplicable, it is replaced.

Four methods of judicial process:

1. Philosophy – law developed in a logically progressive manner

2. History – look at how is the law evolving in terms of historical evolutions.

3. Customs –

4. Method of Sociology – the judge is making a decision based on social response, needs for
society, idea of justice and morality. This is the method that Cardozo espouses (Chapter 3).

Why are judges following precedents? –

the method of logical progression is the heir presumptive. The law is so complex and so
developed, whatever generalisations are drawn from deduction, it requires a degree of
primacy.

He says that there is a moral sentiment underlying adherence to precedent.

Life of the law is not logical but experience – some guy said this

Points written in the reading.

Of the four methods, the philosophical method is the least subject because at least
precedents are being applied.
Cardozo’s work is written in the American context, and does not take into account the way
that Indian courts work. The manner of working of constitutional courts in India and
America is significantly different.

Justice by philosophy – there can be cases where justice refuse to follow precedents because
of overarching considerations of justice.

Normative arguments as to why courts should adhere to precedent

Article 141 does not use the word ‘other.’ It says all courts. So, is the decision of the SC
binding on itself? –

How does the SC of India conceptualise stare decisis with respect to itself – larger judge
bench – only a larger bench can overrule the decision of smaller bench. In practice, however,
what happens is that two judge benches routinely overrule the decisions of coordinate
benches.

Article by Shrutanjaya Bhardwaj

Aparna Chandra empirical study – see the point given in the article.

The courts started to be less grounded in precedents. Adherence to precedents became

exceedingly optional for SC of India.

Bengal Immunity Company Limited v State of Bihar – the court clearly stated that courts
within the category of article 141 does not include the SC. The larger bench rule then
emerged as a practice. This rule should be followed for considerations of propriety and
certainty. Essentially, the court said that smaller benches will be bound by coordinate and
larger benches. This will make sure that the law is uniform.

It is difficult to have a larger bench overrule the precedents already been sent. It is not an
issue of more decision makers, but also an issue of uniformity and non-arbitrariness.

There are four arguments that underpin stare decisis being an operative principle for our
legal system:

1. quest for certainty – when you are operating within a legal system, you will base your
decisions on what the law is. If the law is uncertain, you will make miscalculations. This is
often something that is not desirable. From a law and economics point of view, the choice
will be inefficient because the law is vague. Although stare decisis does not put a complete
bar on re-adjudication of settled law, judges should consider the disruption that overruling
will cause. For example, the multitude of decisions given by courts after the 2015
amendment has created a lot of uncertainty.
2. there should be uniformity – uniformity can be described as lack of arbitrariness.
Therefore it espouses the principle of equality. Two aspects of justice – justice not only to be
done, but justice should also seen to be done.

3. judiciary’s own legitimacy – closely linked to litigant’s perspective of justice being done.
Lack of uniformity will lead to the conception that justice is not being done, which will make
citizens think that the court itself is not legitimate. To contextualise it in terms of what
Cardozo says, it limits the subconscious elements. For example, the new abortion decision of
the SCOTUS – criticism that majority of the judges are Catholics. The decision is being
assailed because people think that the identities of the judges are influencing the outcome.
You would not assail the decision if the court had applied precedent. Therefore, judiciary’s
own legitimacy is protected to a certain degree by stare decisis.

4. ensuring judicial efficiency – if the courts open up the question of law in every case, you
will have long proceedings. You cannot afford to have a system where the judges re-examine
question of law in every cases. So, some degree of adherence to stare decisis is required. The
courts should run like clockwork.

There is an empirical trend that the court is not relying on precedent as much as it used to.

9-judge bench decision – 8:1 – technically, it can be overruled a 11-judge bench decision with
7:4 majority.

Per incuriam – previous decision has not followed the line of authority correctly. The SC’s
application of per incuriam is also not consistent. Courts have said that the decision is per
incuriam and we are not bound by it because it is not law as per article 141. On the other
hands, the courts have also said that judicial propriety demands reference.

PIL jurisprudence – in RC cooper, the court said that unless it is a petition under a specific
category of violation of fundamental rights, the aggrieved person has to come to court.
Therefore, SK Gupta, Hussainara Khatun …

4th October 2022

It is in the interest of justice to follow stare decisis.

SP Gupta v Union of India – 1981 Supp. SCC 87 – it was laid down that it is not just the
person who themselves is aggrieved who may approach the SC. Basically, locus standi was
widened in this case. In RC Cooper (Banks Nationalisation case, the petitioner was a
shareholder and the issue was whether a seizure of the company’s property affected the
petitioner. The court held that him being a shareholder was affected. However, the court also
said that you cannot approach the court unless you are the aggrieved party, unless article 17,
23 or 24 or it is a habeas corpus case). It was an 11 judge bench, with 10:1 ratio. In SP Gupta,
it was 6 judges saying that locus should be widened, whereas in RC Cooper 10 judges said
that locus should not be widened. SP Gupta is a judgment that refuses with the law laid down
in RC Cooper; buckles stare decisis. Justice Bhagwati says that the traditional rule of locus is
rooted in colonial law and is ancient; we are a constitutional and need to engage. The
judgment derogates from the law laid down in RC Cooper, and it might be argued that it’s
per incuriam. Ideally, he should have referred it to a larger bench.

Bandua Mukhti Morcha – some people were bonded labourers. Petition filed,
maintainability questioned. Justice Bhagwati without referring to RC cooper said that the
traditional rule of anglo-saxon jurisprudence does not allow to article 32. Normatively, it was
a good decision. But if you think of it in terms of precedence, the court simply turns a blind
eye towards binding decision.

Two of the cases that laid down the law with respect to PIL do not refer to binding
precedents.

Romesh Thapar case – the person went to supreme court under article 32. Approached the
SC directly and not the hC under article 226. Objection raised that the person should have
approached the HC first as a matter of orderly procedure. The court rejected this submission.
Article 32 provides a guarantee of enforcement of fundamental rights and article 32 itself is a
fundamental right being mentioned in part 3. It cannot refuse to enforce article 32. It can be
invoked without invoking article 226.

This law was laid down by a tw0-judge bench.

Kannu Bhai Brahmbhat v State of Gujarat – 1989 2 Supp SCC 310 – 2 judge bench of the SC
which said to consider the SC as a super speciality heart surgery hospitals. So go to general
hospital for other injuries. it must sent litigants to HC for three reason:

i) no reason that the HCs cannot dispense justice

ii) inspire faith in the minds of litigants that the HCs will do justice

iii) a lot of SLPs pending

kannu bhai, just like decisions in SP Gupta and Bandua Mukhti, does not engage with the
established line of precedents. It is just a 2-judge bench, whereas Romesh Thapar is a 7-
judge bench. the court followed a doctrinal approach.

In Re Sant Ram – there was a person who used to be in the premises of the court. The
allegation was that he used to take money from people to get work done. He was evicted from
the court premises. Argued that he has a right to livelihood. The court went into a textual
analysis and rejected the argument. Said that right to livelihood is not under article 21, but
under article 19(1)(g). even article 16 to some extent talks about public employment.
However, article 21 cannot be said to include right to livelihood.

Olga Telis – right to life includes the right to livelihood. 5-judge bench decision. In Olga
Telis, the court said that the decision in santram deals with nefarious activities. In that
respect, it is binding decision. But santram is not binding decision with respect to “humble
and honourable” occupations. Para 34. This line of reasoning is problematic because the
ratio in santram is in a general sense. Originally, provisions of article 19 and 21 were
separated. Over the period of time, the approach has been to read them together. The
decision of the court in this case does not really follow binding decision because it is a bench
of coordinate strength. In olga telis, the CJI was a part of the bench and still precedent was
not followed.

Hamdard Dawakhana case – it was said that commercial speech is not speech when it comes
to article 19(1)(a). a 5-judge bench gave the decision. The court here relied on a US case. The
court’s engagement with the US case is something that comes into play when Hamdard
Dawakhana is dealt with later. The us Case was Valentine v Christal. The American idea is
that the world is a marketplace of idea and free speech is to be promoted. The court said that
commercial advertisement would not constitute speech in the American framework. It said
that it does not fall under the ambit of article 19(1)(a).

Indian Express News Papers Bombay Pvt Ltd v Union of India – 1985 1 SCC 641 – 3-judge
bench – in the custom duty levied on print papers was increased because of which they said
that they cannot advertise enough. They argued that advertisement should be free speech.
The government said that the Hamdard is binding precedent. Hamdard was also about an
act that was made and content of advertisement. This is more about publishing ads. Para 93
– the court says that the observations in Hamdard was too broad and the court went beyond
what was needed. The court laid down groundwork for not following precedent. Secondly,
the court looked at the US constitutional law and said that the Valentine case has been
overruled by the Virginia State Pharmacy Board v Virginia Citizen consumer counsel. The
case that Hamdard relied on is not good law so why should we consider it. The court is
overstepping its bounds by saying that the observations in Hamdard is too broad. It went
beyond that the American case has been overruled so lets now look at Hamdard. Both are
very problematic reasons for not following precedent.

Tata Press Limited v MTNL – 1995 5 SCC 139 – this case does a combined reading of
Hamdard and Indian Express. It said that commercial speech is protected under article 19(1)
(a). the most problematic thing about this case was that it said that commercial speech is also
about ideas. This is the opposite line of reasoning to what was done in Hamdard; it did so in
the name of doing a combined reading. The court is doing away with a precedent that should
have been binding on both benches.

Aveek Sarkar case – free speech case – intern-racial couple on the cover of a magazine. They
were standing naked. The magazine was displayed in a store and the owner of the store was
prosecuted for obscenity. There was a binding decision in this regard (Ranjit Kudeshi case,
1965, 5-judge bench which said that you have to apply the Hicklin Test, which is an English
test. It says that how will the obscenity affect those who are vulnerable – it specifically looked
at the Wroth Test laid down in the US, the frame of reference should not be a child or a
person of a weak mind, but an average person. The court said that Hicklin test is better
suited for India). Aveek Sarkar is a 2-judge bench decision. It said that the Hicklin Test used
in Ranjit Kudeshi is outdated. The standard for obscenity should change. In para 23, the
court said that we will develop a community standard test to see how an average person
would be perceived and affected by the obscenity (this test is basically the Wroth Test, which
was rejected by Ranjit Kudeshi).

The ground on which courts have not applied precedent is that times have changed. It is not
particularly a legal argument that they have used. The court simply discarded the test by
saying that times have changed, which is problematic. Ideally, the court should have referred
it to a larger bench. It could have said that on the basis of changed circumstances, it is
referring to a larger bench (this is what it could have done at best). There is nothing that the
court would have done.

Shayara Bano – justice Nariman gave the manifest arbitrary test. Shayara Bano does not
properly engage with a coordinate bench decision in an earlier case – KT Plantation v State
of Karnataka – 2011 9 SCC 1 – the issue in this case was about right to property. The issue
was whether you could be deprived of your property in a manifestly arbitrary manner. The
court said that we cannot substitute the legislature’s wisdom with our own. We cannot strike
down a legislation because it is manifestly arbitrary. In Shayara Bano, justice Nariman does
not say that plantation was bad law or per incuriam or anything. He just reproduced certain
paragraphs of Kt Plantation and says that a plea of manifest arbitrariness cannot be based to
strike down legislation particularly when the right is right to property, which is not a
fundamental right anymore.

In KT Plantation, there is a submission made by the counsel where he says that whenever
there is arbitrariness in the state action, article 14 springs into action and strikes down the
action. This argument was rejected by the court. The author (Sharutnajay and Ayush Baheti)
says that the argument was categorically rejected.
India Sawheny Case – no reservation in matter of promotion. Thereafter, amendment made
to constitution. It was challenged in M Nagraj – reservations can be in matter of promotion
but substantial data needed to qualify. In the recent decision, Jarnail Singh, the court said
that qualification by state is wrong. The court said that the coordinate bench decision is not
in line with the previous decision of a bigger bench. Indira Sawnay is 9 judges, Nagraj is 5
judges and Jarnail Singh is also 5 judges.

6th October 2022

1. difference between construction and interpretation

2. three sub-rules – ejusdem, noscitur, singular redendo (something)

3.

Rule of Rank – part of ejusdem generis

If certain things belong to a certain category, there is a sequence and the sequence says a
certain thing –

If there are certain words mentioned that only

Example – song sung by few artists who are contemporary

Redendo singula singulus – whatever portions of text are applicable, how do we distribitte.
This distburtition ahs to have some paratmeters.

Devise

Bequeath – real property and personal property – I can bequeath only personal property.
Rest of the property you can devise – the will can read “I devise all my property”, it would
refers to real property. “I devise and bequeath all my property” – reference to both real and
personal property

Rule of Rank – where some category has been metioned, this category can be category of
metals based on their melting points, material used for ammunition, category of artisans or
craftspersons -you have to interpret and relate the words from that category only and not
from anywhere else. For example, if you written the gold, silver,etc as metals only, then tha
means tou did not intend to include more expensive metals.

Singula singulas – one word should relate to one portion,

One noun or adjective may relate to one provision, but won’t cover the previous one
When phrase saus conginxavble and non-congnziavble offences like, three eamples of
cogniable and rest of non-cognizslbe, then congnizalve ofrfences will relate to only the three
examples and non-cognizalbe will relate to the others

General words are not interpreted diostributively. Whatever general woeds have been used
in the sentence, those words ashall not be interpreted disrbutivelt rather specifically, one to
one.

Article 304 of the Constitution – proviso which has been mentioned – “Provided that no Bill
or amendment for the purposes of clause shall be introduced or moved in the Legislature of a
State without the previous sanction of the President” – we have to see what the words
‘introduce’ and ‘moved’ refer to – no bill or amendment shall be introduced or no bill or
amendment shall be moved? – it makes it clear that it is our choice when we have to
interpret

Koteshwar Vitthal Kamat v KR Balika – 1969 SC – when you read the proviso, no bill or
amendment – ‘introduced’ shall relate to no bill only and ‘moved’ shall refer to amendment
only. Introduced is when you are doing it afresh. The complete text is new. When you apply
the rule, this arises.

Casher v Holmes - 1831 – duty omposed on cooper, brass, and tin and all other metals not
enumerated. The question was whtehr all other metls not enumerated will refer to silver and
gold. It was decided that it would not refer because they are expensive and have been
deliberately removed. (rule of rank) they called it rule of words of rank. Applicable to
ejusdem generis principle.

Casus Omissus – rule of statutory construction –

Rajendra Kumar Bhutta v Maharashtra Housing – 2020 – the word they are takking about is
‘occupied by’. This is about recovery of the peoprety by an owner where sucjh property is
occupied by the corporate debtor. The section used here is Section 14(1)(d).

“in the possession of lessor and not owner”

Two expressions which mean differnetl have been used in the same sub-section. Owned by
and occupied by – whether they will refer to the same thing or to be applied separately – it
was held that they have been used to mean two different things.

Occupied by means physical possession.

In this case, another judgnenr was mentined – member board of revenue v Arthur paul [1955
SC]. This case was about sections 5 and 6 of Indian stamp act.
The different portions of a sentence or different sentences are to be referred respectively to
the other portion or sentences to which we can see they respectively relate even if strict
grammatical construction should demand otherwise.

We have to applu only those words where they wish to apply. This is how we remove
applicability from some other.

Hypothetical example – contract act does not define contract, ibc does not define insolvency.
However, there are actually certain stattutes that do not define the actvitiy for which they
have been designed.

If words or design have … advertence or overlooked at that time by those who drafted the
statute or it could not have been foreseen at that time, then that cannot be supplied by the
courts. This is the rule of casus omissus. Whatever has been missed out by the legislation
cannot be supplied by the judiciary. No courts can create what has not been done. Doing so
would amount to legislation and not construction.

Kanta Devi v Union of India – 2003 SC –

Sometimes there can be a necessity to include something – the thing may not have been
there at the time of drafting. The court can construe looking at the context again.

Bangalore Water Supply v AR Rajappa – 1978 SC – ‘industry’ was the word – while
interpreting the definition of industry, the rule of casus omissus was interpreted

Guajrat Urja Vikas Nigam v SR Power – 2008 SC – the word in issue is whole number of
members – the statute did not provide whether these members will be elected or nominated
– if we do not qualify it with something, the meaning wilm become absurd. Out of necessity
the court mentioned it. The court said that this is a case of casus omissus and the court
should not do it, but there was necessity. Not mentioning elected members is not a defect.

Article 142 – power of the SC in fulfilling this gap –

PK Unni v Nirmala Industries – 1990 SC –

Padma Sundara Rao v State of Tamil Nadu – 2002 SC

Rajbir Singh Dalal v Chaudhary Devi Lal University – 2008 SC