Understanding the ‘Lakshman Rekha’ of interpretation

“Laws are a dead letter without courts to expound and define their true meaning and operation.”

~ Alexander Hamilton

“When I use a word it means just what I choose it to mean - neither more nor less” said Humpty Dumpty in a rather scornful tone. “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is”, said Humpty Dumpty, “which is to be master - that’s all.”

This is a passage from Lewis Caroll’s Alice in Wonderland, wherein it is described what words and phrases may mean and whether they could have an intrinsic meaning at all.

Since society is always evolving, so is the law. Because of the dynamic and ever evolving nature of law, it is impossible for even the legislature to predict the ambiguities that may arise in a seemingly well-drafted law. This is where the need for interpretation arises. This need could alternatively be implied from the old British ditty:

“I am the Parliament’s draftsman,

I compose the country’s laws,

And of half the litigation

I’m undoubtedly the cause!”

Undeniably, it is very important for a judge, lawyer, law student as well as a layman to understand the science, art and commerce (pun intended) of interpreting laws, because whenever the legislature comes up with a new law or an amendment which affects the society at large, no one can afford to stand under the umbrella of ignorance. With the pronouncement of every disputable judgment by the Constitutional courts, arise a hue and cry in the society. From Bar rooms to random tea stalls, there is a buzz around, judging the judgments pronounced by the courts - whether the court was right in declaring the Triple Talaq as unconstitutional, why did Justice Indu Malhotra gave a dissenting opinion in the Sabarimala judgment being a woman herself, is hijab an essential religious practice and so on.

As a responsible citizen of the country and not just as a lawyer or law student, it becomes necessary to understand the process of interpretation applied. The judiciary as an organ of the government has been assigned the role of interpretation of the laws. However, the judiciary is empowered to interpret only as much law as has been drafted by the legislator, given the relevance of Montesquiean separation of powers doctrine. The task of organizing the pieces of the jigsaw puzzle to bring out a clear picture of an ambiguous law can be an insoluble dilemma. Interpretation of Statutes as a subject of law which we as lawyers and law students tend to ignore, comes to the rescue here. These rules of interpretation do not help only the judges to interpret the law, but also the lawyers to understand the law and prepare their pleadings better.

The power of the judiciary to interpret laws, however, is not arbitrary and cannot be used as per the whims and fancies of a judge. Even though a judge may adopt a constructionist approach, but there is a always a limitation to her sense of creativity. Whenever an ambiguous provision or legislation is challenged in a court of law, the court becomes duty bound to dig deep for the whys and wherefores of it. To interpret a law in hand, the entire journey of the law since its birth and even before that has to be scrutinized. Tools of interpretation, here, act as Google maps and help the courts in finding the best route to reach the destined interpretation. These tools, however, do not have rigid boundaries and can sometimes overlap.

The way a judge chooses to interpret a statute majorly depends on the tools she decides to use for such interpretation. When to apply which rule of interpretation is an art which can only be learned by practice and experience, and there is no straitjacket formula to it. The cumbersome process of interpretation can be executed through various tools or principles of statutory interpretation which involve taking help from internal or external aids to interpretation.

In today’s progressive societal climate, purposive interpretation has become the elan vital of statutory interpretation. A narrow interpretation of a subject leads to hazard, whereas a broad interpretation achieves the statutory purpose.

For instance, in the recent judgment of Satish Ragde v. State of Maharashtra, infamously known as the ‘skin to skin’ judgment by the Bombay High Court, sparked a furore because of the restricted interpretation given to Section 7 of the Prevention of Children from Sexual Offences Act, 2012 (POCSO Act, 2012). The judgment was later set aside by the Supreme Court.

While doing so, the three-judge Bench emphasized on the purpose and object of enacting the POCSO Act, 2012. A narrow interpretation of the term “sexual assault” would lead to a detrimental situation frustrating the very object of the Act, which is to protect the children from sexual abuse, it was observed. The Court explained that if given a literal and restricted interpretation, the offender touching the sexual or non-sexual parts of the child with gloves, sheets, condom or a cloth, though done with sexual intent, could never come under the confines of the offence of sexual assault. Therefore, the most important ingredient for constituting the offence under Section 7 is sexual intent and not skin-to-skin contact with the child, the Court held.

Applying the mischief rule, first introduced in Heydon’s case, is a well accepted mode of interpreting statutes by Indian courts. It provides a four- point formula, especially useful for construing a new law. They are:

(1) What was the common law before the making of the Act, (2) What was the mischief and defect for which the common law did not provide, (3) What remedy Parliament resolved and appointed to cure the disease plaguing the society (4) The true reason of the remedy.

As per Blackstone, “the most fair and rational method for interpreting a statute is by exploring the intention of the legislature through texts, the subject matter, the effect and consequences or the spirit and reason of law.”

However, where there is no ambiguity and the meaning of the law is clear, there is no room for a judge to use such tools to fly in the realm of the fanciful and confer a different meaning. In the words of former Chief Justice of India Dipak Misra, in Eera v. State (NCT of Delhi), “a judge cannot afford to romance all the time with the science of interpretation”.

It is important for a judge to only iron out the creases that are found in a statute, and not alter the material of which the act is woven. The difference can be understood by the facets of ‘ought’ and ‘is’ in Kelsen’s theory of law. The judge must step into the shoes of the legislator and ask himself whether a certain result was intended by the legislator. She must not infuse what she thinks should have been done had she been the legislator. That supposed intention would go beyond the creative interpretation of the judiciary and would end up being legislating itself. The judge need not state what the law ought to be instead of what the law is. That would be crossing the Lakshman Rekha to become the legislator itself.

As Benjamin Cardozo said, “the great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.” Hence, no judge must feel the duty to mould the plain and clear words of a statute to the extent of its destruction. “When legislative purpose or intention is lost, then the process of interpretation is like to adorn the skin and to miss the soul,” said Justice VR Krishna Iyer.

The conclusion is that in every interpretation, we must pass between Scylla and Charybdis. “There is no possibility of mistaking midnight for noon; but at what precise moment twilight becomes darkness is hard to determine.” [Boyse v. Rossborough]. It is nowhere contended that the courts must always follow the letter of a statute irrespective of the result, nor is the entire indifference to the words suggested anywhere. The key is about striking the balance, always, in law and in life!

Mahima Garg is an advocate.