While interpreting a statute true intent of the legislature shall have to be gathered and deciphered in its proper spirit having due regard to the language used therein. Where language is clear, external aid for construction is not required. External aids are relevant only when the language is not clear and two meanings are possible. Factual events contemporaneous to the time of interpretation cannot be taken into consideration for interpretation of a statute.
The Supreme Court held in a case that the approach of High Court in interpreting the Development Control Regulations having regard to certain other factors, namely, the deluge in Bombay in 2005 as also the requirements of the entire population of Bombay from environmental aspect was erroneous. It was held that such factors cannot be taken into consideration for interpretation of a statute.
EXTERNAL AIDS TO CONSTRUCTION
2. Foreign decisions
3. Parliamentary history
4. Historical facts and surrounding circumstances
5. Subsequent social, political and economic developments and scientific inventions
6. Text books
7. Reference to other statutes
8. Contemporanea exposito est fortissimo in lege
The leading authorities do not provide a precise meaning of the term “legislative history.” Generally, the term is used to denote documents relating to events that occurred during the conception, preparation, and passage of the enactment.
Peter Hogg considers legislative history to include the following materials:
1. The report of a royal commission or law reform commission or parliamentary committee recommending that a statute be enacted;
2. A government policy paper (whether called a white paper, green paper, budget paper or whatever) recommending that a statute be enacted;
3. A report or study produced outside government which existed at the time of the enactment of the statute and was relied upon by the government that introduced the legislation;
4. Earlier versions of the statute, either before or after its introduction into Parliament or the Legislature;
5. Statements by ministers or members of Parliament and testimony of expert witnesses before a parliamentary committee charged with studying the bill; and
6. Speeches in the Parliament or Legislature when the bill is being debated.
Absent from the foregoing list are explanatory memoranda which are documents explaining the contents and objects of the bill to members of the house- frequently used in some common law jurisdictions, such as Australia. These materials are also considered to be part of legislative history.
The parliamentary procedure is similar across most common law jurisdictions, except for the United States. After the draft legislation has been accepted by the government, it is introduced in the Parliament. It then proceeds through the normal stages of first and second readings, a reference to committee, report stage, and final reading of the bill.
House members’ commentary on the bill during the three readings is recorded in Hansard, the official reporter of parliamentary debates. The vast majority of drafts are public bills introduced by the government; there are also private bills and private members’ bills.
It is noteworthy that speeches in Parliament on a statute made subsequent to its enactment — such as parliamentary statements during the debate on an unsuccessful amendment to the statute — cannot be considered part of its legislative history. Such speeches did not occur during the enactment and are not antecedent to the crystallization of the words in the statute. Therefore, although they are recorded in Hansard, they cannot be regarded as parliamentary debates on that particular legislation.
Legislative history — must be distinguished from the so-called social-science data and other factual materials that have played no role in the legislative process. Social science data can be introduced as evidence in certain courts, particularly in the United States, in the form of a “Brandeis brief.”
They are, however, distinct from (and cannot be considered part of) the legislative history of a statute. Although they can have bearing on the construction of a statute, social-science data are, in effect, facts submitted to the general rules of evidence. In contrast, legislative history materials are not facts — neither adjudicative nor legislative — but rather interpretive aids.
(a) ENGLISH PRACTICE
English practice can be discussed under three sub-headings.:
(I) TRADITIONAL VIEW
English traditional view is that ‘the intent of the Parliament which passed the act is not to be gathered from the parliamentary history of the statute.’
The Bill in its original form or the amendments considered during its progress in the legislature are not admissible as aids to construction.
Recommendations contained in the report of a Royal Commission which may have led to the introduction of the measure in Parliament cannot be used as evidence for the purpose of showing the intention, i.e., purpose or object of the Act.
The Courts are entitled to consider such external facts as may be necessary to understand the subject-matter to which the statutes relate or they can also have regard to the mischief which the statute is intended to remedy. The exclusionary rule has been relaxed to admit the reports of the Commission preceding statutory measure as evidence of surrounding circumstances with reference to which the words in the statute are used.
In Black Clawson International Ltd v Papierwerke Waldhof Aschaffenburg, AG, the House of Lords unanimously held that the report of a committee presented to the Parliament proceedings, the legislation could be seen for finding out the then state of law and the mischief required to be remedied. But the majority held that the report could not be looked at for finding out the intention of the Parliament, ie, for a direct statement of what the proposed enactment meant even though the report set out a draft bill which was enacted without any alteration.
But the minority view was that when the draft bill was enacted without any alteration, it was Parliament’s intention to do what the committee recommended and to achieve the object the Committee had in mind and, therefore, the Committee’s observations on the draft bill would form the most valuable guide to the intention of the Parliament.
The majority view was followed and it was held that while considering an Act passed to give effect to a scheme formulated at a Commonwealth Law Ministers conference, the scheme could be looked at to see the mischief in need of a remedy and the steps proposed to effectuate the remedy and a white paper preceding a legislation can be used for the same purpose.
(II) CRITICISM OF TRADITIONAL VIEW
The English practice continued to make the distinction drawn between the refusal to admit the report of a Committee for purpose of finding out the intention of Parliament and its relevance as evidence of surrounding circumstances or as aid to understand the subject-matter to which the statute relates or as indicative of the evil or defect which the act was intended to remedy, is somewhat obscure. Allen in his book has referred to it as ‘casuistical’.
If the key to opening of every law is the reason and the spirit of the law and if a statute is best interpreted when we know why it was enacted then the steps taken for understanding or defining the object of or the mischief intended to be dealt with by the statute are themselves a part of the process for getting its meaning.
When the courts start upon the task of interpreting a statute, it is unrealistic and impractical to divide the exercise into different compartments viz, one leading to discerning the object or mischief and the other leading to discerning the true meaning of the statute. The exercise in its entirety is one process for discerning the true meaning of the Act, or, in other words, the intention of the legislature.
It was held in R v Shivpuri that reports of law commissions preceding legislation constitute an important material for understanding the legislation and it has been acknowledged that a careful reading of such a report would have avoided an erroneous construction which was very soon overruled.
(III) MODERN TREND
In construing statutes, the school of thought that open use should be made of parliamentary history has been gaining ground. The rule against references to legislative history is no longer so much a ‘canon of construction’ as a ‘counsel of caution’. In other words, it is for the Courts to consider what weight is to be given to the materials that emerge from the scrutiny of legislative history rather than to automatically to exclude such materials from all considerations as an aid to interpretation.’ The legislative history of a statute can be looked into only in case of ambiguity and not otherwise.
In Pepper v Hartx, this trend found an approval. It was held that reference to Parliamentary material should be permitted as an aid to construction of legislation which is ambiguous or obscure or the literal meaning of which leads to absurdity. Even in such cases, references in court to parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words.
It was further held in this case that ‘the court cannot attach a meaning to words which it cannot bear, but if the words are capable of bearing more than one meaning, why should not Parliament’s true intention be enforced.’ It was also observed that ‘given the purposive approach to construction now adopted by courts in order to give effect to the true intention of the legislature, the fine distinctions looking for the mischief and looking for the intention is using words to provide the remedy are technical and inappropriate.
There were two objections to this:
1) Parliamentary materials are not readily available but it was said that experience has shown that non-availability of materials has not raised any practical problems in countries like Australia and New Zealand.
2) Another objection raised was that recourse to Parliamentary material will amount to questioning the freedom of speech and debates in Parliament. But this objection was rejected and it was held that far from questioning the independence of Parliament and its debates, the courts would be giving effect to what is said and done there.
Pepper v Hart is a landmark decision relating to resorting to parliamentary history as an external aid to construction.
The facts of the case were:
There was an appeal by taxpayers who were teachers in a school. Under a scheme of the school, the members of the staff were entitled to have their children educated at the school on payment of only one-fifth of the normal fee chargeable from members of the public. Cash equivalent to this benefit’ was chargeable to income-tax under Section 61 (1) of the Finance Act, 1976.
The concessionary fees more than covered the additional cost to the school of educating the tax-payers children. Section 63(1) said that cash equivalent to the benefit meant ‘an amount equal to the cost of the benefit’ and Section 63 (2) gave the meaning of cost of benefit as the amount of any expense incurred in or in connection with its provision. Now the question, in this case, was ‘what is the true meaning of s 63(2)’.
The House of Lords found that Section 63(2) was ambiguous. Therefore, the reference was made to the Parliamentary history and statements made by the Financial Secretary to the treasury during the Committee stage of the bill which clearly showed that the Parliament had passed the legislation with the intention that the concessionary benefits for teacher’s children would be worked on the additional or marginal cost to the employers and on the average cost. On this basis the construction contended for by the tax payers was upheld.
b) AMERICAN PRACTICE
In contrast to the traditional English practice, under American practice, the old rule of exclusion of parliamentary history has been very much relaxed. Although it is generally accepted that “debates in Congress are not appropriate or even reliable guides to the meaning of the language of an enactment”, it has been held that the said rule “is not violated by resorting to debates as a means of ascertaining the environment at the time of enactment of a particular law, that is, the history of the period when it was adopted.”
Further, it appears to be well accepted that “the reports of a committee, including the bill as introduced, changes made in the frame of the Bill in the course of its passage and the statement made the committee chairman in charge of it, stand upon a different footing, and may be resorted to under proper qualifications.”
It is easy to find opponents and supporters of these views. Some critics even in America feel that recourse to legislative history is a badly overdone practice of dubious help to true interpretation. It has been characterized as ‘the custom of re-making statutes to fit their histories.’ It has also been pointed out that the practice poses serious practical problems for a large part of the legal profession.
The formal Act is no longer a safe basis on which a lawyer may advise his client and he must consult all of the committee reports on the bill and all its antecedents, and all that its supporters and opponents said in debate, and then predict what part of the conflicting views will likely appeal to a majority of the Court.
Further, it has been stated that the most unfortunate consequence of resort to legislative history is that it introduces the policy controversies that generated the Act into the deliberations of the Court. Prof. Reed Dickerson after analyzing the uses and abuse of legislative history concludes that “the more realistic approach to legislative history would be to end or severely limit its judicial use.”
On the other hand, those who support the liberal use of legislative materials for the purpose of construction says that the meaning of the words of a statute is resolved in the light of their setting in the legislative process rather than in the light of the intuition of the judge. According to this view, liberal use of legislative material is one of the modern efforts so that judicial lawmaking under the guise of interpretation may be reduced to its necessary minimum.
It will appear that a wholesale inclusion of parliamentary history as also a wholesale inclusion thereof are both extremes equally open to objections, and the correct solution lies in finding out a middle course as now adopted by the House of Lords.
c) INDIAN PRACTICE
The Supreme Court has used the aid of Parliamentary history in resolving questions of construction but it can be said that the Supreme Court generally has enunciated the said rule of exclusion of Parliamentary history in the way it was traditionally enunciated by English Courts.
But in a few cases, it has been held that the legislative history within circumspect limits may not be consulted by the Courts in resolving ambiguities. Legislative history and precedent English statutes may be taken into consideration in giving a beneficent interpretation to a provision in an act. In determining legislative intent, even a minister’s budget speech was taken into consideration.
As the speeches made by the members of the Constitution Assembly in the course of debates on the draft Constitution cannot be admitted as an external aid to the Constitution, in the same way, the debates on a Bill in Parliament are not admissible for construction of the Act which is ultimately enacted.
In State of Travancore v Bombay Co Ltd, it was held that a speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in accord.
In Chiranjit Lal Chowdhary v Union of India, Fazal Ali, J, admitted Parliamentary history including the speech of the Minister introducing the Bill as evidence of the circumstances which necessitated the passing of the Act, a course apparently approved in later decisions.
In Union of India v Harbhajan Singh, extensive references were made to speeches in the Constituent Assembly to support the construction that wealth-tax on net-wealth including the capital value of agricultural lands fell within the residuary power of the Parliament.
In Indira Sawhney v Union of India, the Supreme Court referred to Dr. Ambedkar’s speech in the Constituent Assembly and observed interpreting Article 16 (4), ‘that the debates in the Constituent Assembly could be relied upon as an aid to interpretation of a constitutional provision is borne out by a series of decisions of the Court.’
Since the expression backward classes of citizens are not defined in the Constitution, the reference to such debates is permissible to ascertain at any rate the context, background, and objective behind them. Particularly where the courts want to ascertain the ‘original intent’ such reference may be unavoidable.
The amendments considered during the progress of a bill were ruled out as inadmissible for purposes of construction of the Act. This principle was modified by the Supreme Court in the case of Express Newspapers (Pvt) Ltd v Union of India.
The Court observed that there is a consensus of opinion that the circumstances under which a particular word came to be deleted from the original Bill as introduced in the Parliament and the fact of such deletion when the act to be passed in the final shape are not aids to the construction of terms of a statute. It is applicable only when the terms of a statute are vague or ambiguous.
In K.S.Paripoornan v State of Kerala, it was held that speeches of members of Parliament are not admissible as extrinsic aids, although the speech of the mover of the bill can be referred to find out the object intended to be achieved by the Bill. Similarly, it was held that statements made by a Minister in the house who had moved the Bill in Parliament could be referred to ascertain the mischief sought to be remedied by legislation but it could not be relied on for interpreting provisions of the enactment.
(ii) STATEMENT OF OBJECTS AND REASONS
The statement of objects and reasons accompanying a legislative bill cannot be used to ascertain the true meaning and effects of the substantive provisions of the legislation, but it can certainly be pressed into service for the limited purpose of understanding the background, the antecedent state of affairs and the object that the legislation seeks to achieve. If the meaning of the provision of a statute is clear and explicit, it is not necessary to advert to the objects and reasons thereof.
The Statement of Objects and Reasons is undoubtedly an aid to construction but that by itself cannot be termed to be and by itself as an aid to the construction of a statute. It is a useful guide but the interpretations and the intent shall have to be gathered from the entirety of the statute. In Ashwini Kumar’s case, the statement of Objects and Reasons was ruled out as an aid to the construction of a statute.
When the validity of a particular statute is brought into question, a limited reference may be made to the Statement of Objects and Reasons but it may not be relied on. It may be employed for the purposes of comprehending the factual background, the prior state of legal affairs, the surrounding circumstances in respect of the statute and the evil which the statute has sought to remedy. It cannot be the exclusive footing upon which a statute is made a nullity through the decision of a court of law.
The Statement of Objects and Reasons can be referred only for understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the state of affairs, and the evil which the statute has sought to remedy. It can be referred to only to ascertain conditions prevailing at the time which prompted the introduction of Bill but where the language of the statute is clear and plain it is not required to be referred to.
It cannot be utilized for the purpose of restricting and controlling the plain meaning of the language employed by the legislature in drafting a statute and excluding from its operation such transactions which it plainly covers. In CIT, MP v Sodra Devi, while dealing with Section 16(3) of the Income Tax Act 1922 as introduced by the Amending Act IV of 1937, and in construing the words ‘any individual’ and ‘such individual’ occurring therein, Bhagwati J restricted their meaning to ‘males’ on a consideration that the statement of objects and reasons appended to the Bill of Amending Act made it clear that the evil which was sought to be remedied was the one resulting from the widespread practice of husbands entering into nominal partnerships with their wives and fathers admitting their minor children to the benefits of partnerships of which they were members and that the only intention of the legislature was to include the income derived by the wife or a minor child, in the computation of total income of the male assessee, the husband or the father, as the case may be.
In Babu Ram v State of U.P, it was held that the statement of Objects and Reasons can be referred to ascertain mischief sought to be remedied by the statute.
However, the Statement of Objects and Reasons have never been held admissible for determining whether a certain provision of the Act, which was ultra vires was or was not severable from the other provisions of the Act. A provision inserted by subsequent amendment cannot be construed on the basis of the statement of objects and reasons of the original statute.
(iii) COMMISSION/ INQUIRY COMMITTEE
Reports of Commissions or Inquiry Committees preceding the introduction of a Bill have also been referred to as evidence of historical facts or of surrounding circumstances or of mischief or evil intended to be remedied and at times for interpreting the act. In the Transfer of Property Act, Section 53 A was inserted on the basis of recommendations of the Special Committee set up by the Government of India.
Examples can also be taken from Sodra Devi’s Case in which Income Tax Enquiry Report was referred, in Express Newpaper’s Case where the Press Commissions Report was referred and in Madanlal’s Case where the report by Committee appointed to bring changes in Company law was referred.
In CIT, AP, v Jayalakshmi Rice, and Oil Mills Contractor Co, it was held that the report of the special committee which had been appointed by the Government of India to examine the provisions of the Bill which later became the Partnership Act could not be admitted for interpreting the provisions of the Act.
But a different view was taken in RS Nayak v AR Antuley where the court held that report of the Committee which preceded the enactment of legislation, reports of Joint Parliamentary Committee and Report of a Commission set up for collecting information leading to the legislation are permissible external aids to the construction of the Act.
In M Ismail Faruqqui v Union of India, it was held by the Supreme Court that white paper issued by the Government detailing the facts leading to enactment of a statute is also admissible for understanding the background when the court is called upon to interpret and decide the validity of the statute. In understanding the background of the Babri Masjid dispute, in deciding the reference made under Article 143 and the constitutionality of the Acquisition of Certain Areas of Ayodhya Act 1993 extensive reference was made by the Supreme Court to the white paper.
In Samantha v State of Andhra Pradesh, in interpreting para 5(2) of the 5th Schedule of the Constitution, reports of drafting committee and sub-committees of the Constituent Assembly, the Draft Constitution and changes made thereafter in giving it the final shape were referred by the Supreme Court.
However, in Maharani Kusumkumari v Kusumkumari Jadeja, the Law Commissions Report as an external aid to construction was not relied on.
(iv) PARLIAMENTARY DEBATES
Parliamentary debates at the time of introduction of bill may be used as an external aid in interpretation. It is a settled position that there can only be limited use of Parliamentary Debates. The court should not normally critically analyze the proceedings of Parliament. In Milton v DPP, in interpreting the term ‘prosecution’ under the Income Tax Act, a minister’s speech at the time of introduction of Bill has been taken into consideration.
The letter written by Law Minister cannot override the statutory provision. When the statute is very clear, whatever statement made by the Law Minister on the floor of the House cannot change the words and intendment borne out from the words. It was held that such a letter cannot be read to interpret the provisions of Section 100A CPC. The intention of the Legislature is more than clear in the words and the same has to be given its natural meaning and cannot be subject to any statement made by the Law Minister in any communication. The words speak for themselves. It does not require any further interpretation by any statement made in any manner.
Even if accepted, in the case of Parliamentary History as an aid to construction of a statute, the general principle followed is that it can be used only in cases where the statute is not clear or is ambiguous. Some Parliamentary opinions like ‘Bills’ and ‘statement of objects and reasons’ and Parliamentary debates are resorted to only to a limited extent if at all accepted. However, reports of Commissions have more authority in this regard.
On analysis, it is clear that courts under Common Law jurisdiction are wary of accepting Parliamentary History as an external aid to interpretation of the statute.
Formatted on February 16th, 2019.
1. Introduction to the Interpretation of Statutes by Dr. Avtar Singh and Dr. Harpreet Kaur, 3rd Edition (2009), Lexis Nexis Butterworths Wadhwa Nagpur.
2. Principles of Statutory Interpretation by Justice G.P.Singh, 13th Edition (2012), Lexis Nexis Butterworths Wadhwa Nagpur.
3. Maxwell on The Interpretation of Statutes,J. Langan, 12th Edition (2010), Lexis Nexis Butterworths Wadhwa Nagpur.
4. Parliamentary Debates in Statutory Interpretation: A Question of Admissibility or Weight? : Stephan Beaulac.