Guest Blogs

Interpretation of Statutes: Critically Analyzing Leading Theories of Denning, Holmes and Cardozo

The blog is authored by, Vedansh Tandon, a fourth year law student, pursuing his B.A LL.B (Hons.) at Symbiosis Law School, Pune.


Introduction

The interpretation and application of statutes by judges have long been a subject of intense debate and deliberation. On one hand, thinkers and philosophers vehemently oppose the idea of providing arbitrary power of construing law, at their whims, to judges.[1] However, on the other hand, it is a well-recognised rule that interpretation of the law by judges is imperative to ensure the supplementation of a sound judgment.[2] Judicial craftsmanship and creativity undoubtedly form an imperative part of the judiciary. However, the question that arises is whether such creativity is even permissible under the law? If the answer is in the affirmative, what is the extent of such creativity that is permissible and who decides the same?

Lord Alfred Thompson Denning, remembered for his practical and pro-active attitude and liberal mind,[3] has tried to resolve this dispute through his writing.[4] His words throw light on an essential component of statutory interpretation, that is, literalism in interpreting statutes is primarily faulty.[5] Hence, while it might be enticing to presume that merely categorizing and applying literal denotation of words present in the statute is enough, the reality is far from it. Different words have different meanings. Due to this, often, judges find themselves in situations where the actual meaning of the wordings of legislations seem to be lost.[6] Therefore, judges must identify and interpret the meaning of statutes in the context of the reference they were framed in.

This blog is divided into three sections. The first section critically analyses and appraises the view of Lord Denning illustrated in the judgment of Seaford Court Estates Ltd. v. Asher[7]along with the philosophies of Holmes J.[8] and Benjamin Cardozo.[9] This is followed by the second section of the article which focuses on the practical application of judicial craftsmanship, and creativity as envisaged by Lord Denning. Finally, the article comes to a close with a brief conclusion.

Critical Appraisal

To illustrate the importance of interpretation of statutes by a judicial body, Lord Denning differentiates between the English language and Mathematics. He explains that subjects such as mathematics provide precision and absolute clarity. However, the same is simply not true for legislations that are drafted by the Parliament. The reason behind this is that human beings, do not have the power to predict the innumerable permutations and combinations that may arise out of the implementation of such law. With unforeseeable developments in society, it is unavoidable for the meaning of legislations to also develop in a manner that can result in the judges landing in unchartered territory. In such a scenario, while it might be easy for the judge to simply blame the draftsman of such legislation, it is not the right thing to do. Therefore, it is the responsibility of a judge to analyse the intentions of the draftsman while giving the decision. Lord Denning provides a way to ensure that the judges do not exceed their powers while implementing the law. To ensure the same, he suggests that a judge must ask himself whether the makers or draftsman of the legislation in question would have solved conflict arising out of it, similarly as him.[10]

This view was also supported by Holmes J. who stated that judges must legislate along with giving judgements. However, Holmes limits the scope of such legislation by judges by stating that it can only be done “interstitially”.[11] Here, the term interstitially means “in a limited manner”.[12] Therefore, Holmes is not as liberal in providing judges with legislative powers as Lord Denning. He further states that such actions of judges must be confined from “molar to molecular actions”. Hence, Holmes believes that the power of interpretation provided to judges must not fall outside the scope of the legislation itself as it would, inadvertently, result in abuse of excessive powers within the judiciary.

Another view that must be taken into account while discussing the interpretation of statutes by judges is that of Benjamin Cardozo. Cardozo, a renowned American Jurist, is reminisced for his noteworthy influence on the development of common law in the 20th century.[13] He recognized “judge-made law” as a reality and something necessary for legal development. He believed that generally, common law rules provided clear resolution for judges to apply uniform principles in judicial decisions.[14] However, there could be instances where there existed gaps in the law or something that the legislators had not foreseen. In such situations where law left gaps, it was essential, according to Cardozo, for judges to make laws. This does not mean that Cardozo suggested judges routinely ignore the existing law and pursue their vision of justice and wisdom. It just meant that in situations where the welfare of society was in question due to legal gaps in the legislation, it was a judge’s duty to provide a direction to the same.[15] This is because according to Cardozo, common law has not been developed from “pre-established truths of the universe”. Rather, the process of development of these man-made laws is owed to gradual change and fluidity depending upon the existing status quo.[16]

In light of the views put forward by these eminent jurists, it is the author’s view that a judge’s responsibility includes not just applying laws to judgments but also ensuring that the meaning and purpose of the legislation in question is not lost in translation. However, in certain scenarios, “judge-made law” as Cardozo puts it, can result in arbitrary decisions. Therefore, it is essential to draw a line between interpretation of legislation and arbitrarily ignoring the law and framing legislations themselves. The following section analyses this conundrum through its practical application in various judgments in the Indian context.

Judicial Interpretation in India: Substantiating Through Legal Precedents

It is well established that the judiciary is responsible for the judicial interpretation of statutes.[17] This judicial interpretation is evidenced through various landmark judgements[18] and was done to ascertain the intention of the Legislature, in a way the judge may deem fit. Therefore, under this section we show the relevance of judicial interpretation through judgements based on either of the two contrasting views- the restrictive, literal approach and the more permissive, purposive approach.

In the view of the literal approach, judges need to look primarily to the text of the legislation to interpret the meaning and the intent behind the legislation. This approach resonates with the thinking of Benjamin Cardozo where it speaks about the permissible creativity in the process of judicial interpretation.[19] “The Judge is not to innovate at pleasure”[20], shows the extent to which judges can go to answer any lacuna in the law, arising out of flawed language in the legislation. The reasoning was upheld in the Jugalkishore Saraf v. Raw Cotton Co. Ltd. Case,[21] where the Apex Court observed that the fundamental rule behind drafting of legislative statutes is to give the words an ordinary, grammatical meaning, due to which, if there is any mischief, such is to be dealt with through the same process.[22] Similarly, the apex court in the case of Madan Mohan v. K. Chandrashekara[23] has also recognized that when a statute contains stringent provisions, such proviso are to be construed literally and strictly to promote the object of the act.[24] The same can be seen to be true with Jogeshwar Manjhi v. Ramiya Kishan[25] and S. Samuel v. Union of India[26] where the court even said that judges must not go beyond the permissible limit for creativity and must interpret any undefined words or phrases with the help of a dictionary.[27]

Given the purposive approach, the limitation on a judge’s creativity gets lifted as the judge may go beyond the literal construction of a statute. This approach suggests that a judge should go beyond the literal meaning of the statute, to investigate the reason behind its enforcement and the purpose of the legislation to give effect to a viable interpretation is cases of abnormality.[28] This approach is in line with Lord Denning’s observation[29] where he says that “a judge must undertake the constructive task of finding the intention of the Parliament, not only from the language of the act but also from the consideration of social conditions which may have given rise to it.”[30] This reasoning has been extensively followed by the Apex Court in the National Insurance Co. Ltd. v. Laxmi Narain Dhut[31] to establish the actions of a court of law resorting to purposive interpretation, thereby, exceeding the textual interpretation of the statute is well recognized.[32] The same has also been upheld by the Apex court in the very recent judgements of Shailesh Dhairyawan v. Mohan Balkrishna Lulla[33], Badshah Godse v. Urmila Godse[34] and Richa Mishra v. State of Chattisgarh and Ors.[35], to give a legal backing to the judge’s conduct of going beyond the text of the statute, and into the purpose and reasoning behind the legislative act, to use their discretion in interpreting the meaning of the said act.[36]

It can be rightfully said that while there is still enough debate on which rule of interpretation rightfully defines the permissible limit of a judge’s involvement, the two primary rules are the literal and purposive ones. Various justices like Hon’ble Justice D.Y. Chandrachud, Hon’ble Justice Markandey Katju and eminent scholars like Chintan Chandrachud have time and again referred to India’s jurisprudential evolution in this aspect. They state that the Court’s recourse to the literal interpretation of a statute has now become obsolete and can be termed as phase one of the Supreme Court’s approach, in its earlier years.[37] Therefore, from A.K. Gopalan v. State of Madras[38] which gave birth to literal interpretation, by interpreting Part III of the Constitution to construe the meaning of preventive detention[39], the Courts have now transitioned into an era of purposive interpretation giving landmark judgements such as the Navtej Singh Johar v. Union of India[40], which decriminalized Section 377 and the criminal offence of adultery.

While the Courts have substantially evolved, the facets of previous eras are still lingering in these courts. Such cases involve substantial questions of law, about legislative statutes from the early days of the Constitution, making the new-age era of interpretation to be at risk, when applied. These situations bring us to the same standpoint that exists between the differences in opinion that Cardozo and Denning have.

Conclusion

Concluding this critical appraisal, we must be reminded of what Justice Holmes believed, in his saying “A great judge, must perhaps, be a great man.” This critical appraisal is merely a sketch in position, as the risks of judicial creativity are enormous. However, this is a field in which all propositions are untenable, making the requirement of neat answers for inexplicable problems a far-fetched expectation. Therefore, it is essential to understand the necessity of the correct interpretation for any given matter, based on the value of such interpretation. The job of the Judiciary is just to suppress the evil and injustice that might arise from particular legislation, as it is nearly impossible for the legislature to draft a law perfect to meet all possible social conditions. Hence, it is a judge’s duty to use techniques which can in ways, most desired by the courts of law and the citizens of the country, help in ensuring that justice prevails. 


[1] S.P. Sathe, “Judging the Judges”, Economic and Political Weekly, 37 (2002) 6, 544-549.

[2] Fitzgerald, P. J., Salmond on Jurisprudence, (Universal Law Publishing, 11 ed.), 152.

[3] Montrose, J. L., “The Treatment of Statutes by Lord Denning”, University of Malaya Review, 1 (1959) 1, 88-110, 89.

[4] Hon’ble Denning L.J., Freedom under the Law, Hamlin Lectures at Senate House (1949).

[5] Ibid, See also, Seaford Court Estates Ltd. v. Asher, (1949) 2 K.B. 481 (498).

[6] Munson, F. G., “Does the Court Make or Interpret Law”, University of Pennsylvania Law Review and American Law Register, 58 (1910) 6, 365-375.

[7] Seaford Court Estates Ltd. v. Asher, (1949) 2 K.B. 481 (498).

[8] Southern Pacific Company v. Jensen, 244 U.S. 205 (1917).

[9] Justice Benjamin Cardozo, Nature of Judicial Process, (Yale University Press) (1921).

[10] Seaford Court Estates Ltd. v. Asher, (1949) 2 K.B. 481 (498); See also, Goff, R., Denning, Alfred Thompson: A Biography, (Oxford University Press) (2009).

[11] Southern Pacific Company v. Jensen, 244 U.S. 205 (1917), 221.

[12] Novick, S. M., The Collected Works of Justice Holmes: Complete Public Writings and Selected Judicial Opinions, (Chicago Publishing House, Sheldon edn.) (2016), Chapter V, p. 349.

[13] Goldstein, J. K., “The Nature of the Judicial Process: The Enduring Significance of a Legal Classic”, Touro Law Review, 34 (2018) 1, Article 12.

[14] Aldisert, R. J., “The Nature of Judicial Process: Revisited”, University of Cincinnati Law Review, 49 (1980) 1.

[15] Justice Benjamin Cardozo, Nature of Judicial Process, (Yale University Press) (1921), 17.

[16] Supra note 14.

[17] Blackstone, Commentaries on the Laws of Commonwealth States, Vol. 1, p. 59

[18] Khanna, R., “Changing Dynamics in Constitutional Interpretation”, Journal of Law and Polity, 47 (2015) 4.

[19] Supra note 14.

[20] Ibid.

[21] Jugalkishore Saraf v. Raw Cotton Co. Ltd., 1955 SCR (1) 1369

[22] Opinion of Hon’ble Justice S. R. Das, Jugalkishore Saraf v. Raw Cotton Co. Ltd., p. 21.

[23] Madan Mohan v. K. Chandrashekara, 1984 SCR (2) 894

[24] Opinion of Hon’ble Justice S. M. Fazalali, Madan Mohan v. K. Chandrashekara, p. 3; See also, M. Karunanidhi v. H. V. Hande, 1983 AIR 558, p. 29.

[25] Jogeshwar Manjhi v. Ramiya Kishan, AIR 1997 OR 54.

[26] S. Samuel v. Union of India, AIR 2004 SC 218.

[27] Opinion of Hon’ble Justice R.C. Lahoti, S. Samuel v. Union of India, p. 14

[28] Hon’ble J. Frankfurter, “Some Reflections on the Reading of Statutes”, Columbia Law Review, 47 (1947) 527.

[29] Opinion of Hon’ble Denning L.J., Seaford Court Estates Ltd. v. Asher, p. 49.

[30] Seaford Court Estates Ltd. v. Asher, (1949) 2 K.B. 481 (498); See also, Pickstone v Freemans PLC, [1989] AC 66.

[31] National Insurance Co. Ltd. v. Laxmi Narain Dhut, 2007 (3) SCC 700, pp. 33-35; See also, Oriental Insurance Co. Ltd. v. Meena Variyal, 2007 (5) SCC 428.

[32] Ibid. See also, Opinion of Hon’ble Justice M. Katju, Oriental Insurance Co. Ltd. v. Brij Mohan and Ors., Civil Appeal No. 2532 of 2007

[33] Shailesh Dhairyawan v. Mohan Balkrishna Lulla, Civil Appeal No. 8731 of 2015, 19617/2015

[34] Badshah Godse v. Urmila Godse, Criminal Appeal No. 19530 of 2013, 8596/2013.

[35] Richa Mishra v. State of Chattisgarh and Ors., Civil Appeal no. 274 of 2016

[36] Supra note 33, pp. 31-33.

[37] Chintan Chandrachud, The Cases that India Forgot, (Juggernaut Publishers, 4th ed.) (December 2019), p. 48.

[38] A.K. Gopalan v. State of Madras, 1950 AIR 27.

[39] Constitution of India, 1950, Article 22.

[40] Navtej Singh Johar v. Union of India, W.P. (Crl.) No. 76 of 2016.

Views expressed are personal.

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