See on this a discussion of the problems and possibilities by

H.C.L.Merrillati The soundproof room: A matter of interpretation (1967) IX J.I.L.I. 321. ^he Indian approaches discussed at 530-542; the general problems involved at 542-5^ •

c. The hardship rule : the second escape route*

The Court will however deviate from the literal construction approach to ensure that the statute works* It has at several places

4 3

declared that it must:not follow a construction that is unworkable,

m . . 4 5

prevent "mischief” "read a law so as to make it valid", "not defeat the intention of the legislature", not allow one section to defeat the2*6 operation of the other and apply the rule of harmonious construction47 to several inter-related statutes.hS

But the application of these rules is by mo means consistent as different judges harmonise different sections differently. A few examples from Constitutional law will illustrate the point. The Supreme court was called upon to render a harmonious interpretation to Articles 13 and 194(3) of the Constitution on two separate occasions but it

reached different conclusions about their inter-relation on each occasion.2*9 Again in Nanavati v Bombay the Court tried to give a harmonious inter­50 pretation to Article 163 (the Governor’s power to pardon) with Article

43* Subha Rao J. in Shyam Kishori Devi v Patna Kun.Corpn. A.I.R. 1966 S.C. ' 1678 at pr.8 p 1682.

44. Sevantilal v I.T.Commr. A.I.R. 1968 S.C. 697 at pr.4 p.700.

45« Shah J. in Rajasthan v II.S.Mills Ltd. A.I.R. 1969 S.C. 880 at pr.8 882; T.S.Mankad v Gujerat A.I.R. 1970 S.C. 143 at pr.7 p.146; Advance

Insurance Co. v Gurdasmal A.I.fe. 1970 S.CT 1126 at pr.l p.ll32~

46. S.Asia Industries v Sarup Singh A.I.R. 1966 S.C. 346 at pr.7 p»349*

47* I.T.Officer v Damodar A.I.R. 1969 S.C. 408 pr.4, p.412.

48. Sanjeeva v Election Tribunal A.I.R. 19&7 S.C. 12ihl at pr.4 p.1213.

49* M.S.M.Sharma v Srikishan Sharma A.I.R. 1959 S.C. 395 overruled in In Re Article 143 A.I.R. 1965 S.C. 745*

30. A.I.R. 1961 S.C. 112 see infra section on Constitutional Law.

i o o

143 (the Supreme Courts power to make its own rules). The majority and the minority reached different conclusions hut both claimed that they had given a harmonious interpretation of the two Articles. The famous

case of Golak Nath v Punjab interpreted the relationship between51

fundamental rights (Article 13) and the power to amend the Constitution (Article 368), but the conclusion that they reached was fundamentally different from the one that a differently constituted Court had reached in 1951.^^here are two interesting cases where Shah J., writing the

judgement in both cases, reached a different conclusion on the inter-relation between Article 31(1) and 31(2) of the Constitution.53

The Court has always made it clear that in order to avail of this escape route there must be a hardship. In a recent case, however, the Court did not want to soften a rigorous literal interpretation of a statute for the protection of tenants while admitting that the statute was for their protection. 54 This takes us to the crux of the problem.

What is a hardship ? Does it depend on :

(i) hardship with respect to established legal principles;

(ii) Hardship resulting from the facts of the case;

(iii) Hardship in relation to the principles or canons of interpretation;

(iv) ^ardship of a public nature. 35

51. A.I.R. 1967 S.C.

1643-32. See Shankari Prashad v Union A.I.R. 1951 S.C. 45$.

53• See R.C.Cooper v Union A.I.R. 1970 B.C. 564 at 595-596 and pr.62 p.597; contrast Maharashtra v H.N.Rao A.I.R. 1970 S.C.1157 at pr.17 p.1165*

See also his comments in Gujerat v Shaniilal A.I.R. 1969 S.C. 634.

54. Jai Norain v Kishan Chand. A.I.R. 1969 S.C. 1165 at pr.6 p.ll67 (per Hidayatullah J. Tl

55* These are the four ways of ’'receiving” a statute outlined by R.Pound:

Common Law and Legislation (1908) 21 Har±.L.Rev. 385 at 385*

In the case of the statute involving the tenant, the Court may well have avoided the hardship rule because they thought the tenant undeserving because he tried to get out of paying compensation for damge caused by him fixed by the landlord at a mere Rs 500,36

A good example of hardship of the fourth kind may be found in Empress Mills v Municipal Committee where Kapur J. observed :57

"The effect of the construction of import and export in Section 66(1) of the C.P. and Berar Municipalities Act (21f) 1922 insisted upon by the respondent, would make railborne goods passing through a railway station, within the limits of a municipality, liable to the imposition of a tax, on arrival at the railway station, on departing therefrom, or both, which would not only lead to incon­

venience and confusion but would also result in inordinate delays and unbearable burdens on trade, both inter and intra state. It is hardly likely that that was the intention of the legislature. Such an interpretation would lead to kn absurdity which according to the rules of interpretation is to be avoided." 38

P 59- •

Co. is a-', f ' \ 1

M. P. v Azad Finance Co. •'is a r ' j of the first and third kinds. Here the Court was not prepared to interpret the word

"shall" in Section 11(d) of the Opium Act 1878 so as to make it obli­

gatory on the Government to confiscate goods which they had the power to confiscate under that statute. They brought into play the Common Law presumption that a penal statute must be interpreted literally.60

... let another kind of absurdity emerges in Union v Shreeram 6l

Durga Prashad. An exporter who had made a profit of Rs 3 crores by under-invoicing the export quota allocated to him was prosecuted under Section 121(a) and Section 23A of the Foreign Exchange Act 1947 read with Section 1 67(8) of the Sea Customs Act 187 8. The Court divided on

36. Supra f.n. 54 at pr.l p.ll66. 37. A«I.R. 1938 S.C. 3A-1.

3 8. Ibid at pr. 22.

39. A.I.R. 1967 S.C. 276.

60. Ibid at 278.

61. ,A.I.R., 1970 S.C., 1337.. . . .

- /'n

the question as to whether he was penally liable or not. Hegde J. (for Bachawat J. and himself) said :

"(l)t is hard to believe that the legislature intended that any

minor mistake in giving full export value should be penalised ...” 62 Sikri J. took the hard line that the fraudulent exporter should be

punished :

"I cannot give an interpretation that will make a mockery of the section.” 63

In this case a lot of factors were brought into play. The fact that the exporter had made a tidy sum; the foreign exchange argument (which even Hegde J. considered important^); the introduction of the rule that penal statutes must be literally construed; and the fear that the statute would not, if given that interpretation, operate as a rule of law (Sikri J.’s argument). An illustration may be found in a recent case where the Court felt that the legislature cannot be presumed to65 have intended something contrary to justice and reason.

Examples can be multiplied. The essential point lies in the 66

discovery that tfce Supreme Court, even though a Court of appeal, in fact uses the Hardship rule to meet the needs of the instant case, using the

Common Law presumptions of interpreting statutes and accommodating the public need to preserve its interests. A haphazard policy underlies the use of the hardship rule, but it is useful to help the Court to meet the needs of the instant case.

The most important influences on the Court are the Common Law presumrtion. To the Court’s use of these we now turn.

62. Ibid at pr. 36p.l6l2.

63« Ibid at pr. 23 p.1607 cot2.

i

64. Ibid at pr.37 p.1612-3.

63* Budhan Singh v Babi Bux A.I.R. 1970 B.C. 1880 at pr.9 p.1 8 8 3.

6 6. See G.B.Singhs Principles of Statutory Interpretation (1 96 6) pp.62-74.

d. The Common Law presumptions.

The Common Law has, as a result of historical process, pre­

cipitated certain presumptions, which are to be borne in mind while interpreting statutes, and which in turn have an effect on the drafting of statutes. In the main these presumptions are P Statutes do not bind the Crown unless it is expressly stated or can be clearly implied;67 the jurisdiction of a Court is not tot be ousted; penal and taxation68 statutes are to be strictly construed; remedial statutes are to be69

70 . 71

liberally construed, and delegated legislation is to be strictly controlled.

All this belongs to a period when the Courts were anxious to protect the individual, hoped to preserve their own jurisdiction, oppose excessive delegation of power, restrict the power to tqx and punish, and at the same time respect the prerogative of the Crown by ensuring that it is not bound by statutes.

Jurists aware that these are the product of history have criticised the Common Law system of presumptions. An American jurist thought they were wholly unsuited to modern conditions and suggested that a new scheme involving the protection of a much wider range of interests be evolved. An Australian jurist complained 72 that they leaned in favour

67* This can be traced to Plowdon in William & Barkly (1562) Plowd 223 at 240; now see Hancock (1940) I All ETK. 32 at 34. Madras Electric Cornn v Boarland (1955) 1 All E.R. 753 at 7 6 5* For the background to the presump­

tion see Craies: Statute Law (1971; 7&b 420-429.

68. See Garthwaite v Garthwaite (1964) 2 All E.R. at 241 * 242; Pyx Granite Cq» Ltd. v Minister of Housing & Local Govt. (1959) 5 All E.R. 1 (H.L.):

Anisminic Ltd. v Foreign Conrpens&tion Administration (1969) 2 A.C. 147.

6 9. See generally Craies (supra f.n.6 7) 525-554 (Penal Statutes),112-116 (taxation Statutes).