3.06.2010

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The most comprehensive coverage on the construction of Statutes. It includes parts of statutes,Extrinsic-Aids,Intrinsic aids, Reading down, Amendments,Repeals,codifications,Quasi-Judicial agencies,Non-obstante clause,Mandatory/Declatory provisions,Tax ,Beneficial, Criminal,Fiscal Statute's Interpretation and sub-ordinate legislations.Besides it contains the Rules of Interpretation and the Role of Judiciary.Citations are in abundance.



Thursday, June 10, 2010

Statute to be read with the Language as it is

The exercise of interpretation begins with the plain reading of the text of the statute without reading in/reading down, adding or subtracting a word. If the intent is clear that is the end of the exercise. There are situations where any alteration or any alternative is required. Courts are reluctant to add or subtract a word as it may tantamount  to judicial law making..[blogger].
In a statutory construction case, the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue judicial inquiry into the statute's meaning, in all but the most extraordinary circumstance, is finished. 
[Demarest v. Manspeaker, 498 U.S. ----, ----[1991] USSC 3; , 111 S.Ct. 599, 603[1991] USSC 3; , 112 L.Ed.2d 608 (1991)]
First, though courts must attempt to discern legislative intent based on the statute as a whole
 [ see Thinking Machs. Corp. v. Mellon Fin. Servs. Corp., [1995] USCA1 514; 67 F.3d 1021, 1024 (1st Cir.1995)]
The best hope for capturing congressional intent is by focusing on the language purposefully deployed by the legislature. Thus, a statute ordinarily will be construed according to its plain meaning.
[See Estate of Cowart v. Nicklos Drilling Co.,[1992] USSC 98; 505 U.S. 469, 112 S.Ct. 2589, 2594[1992] USSC 98; , 120 L.Ed.2d 379 (1992); In re Jarvis, 53 F.3d at 419; Pritzker v. Yari, 42 F.3d 53, 67-68 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1959, 131 L.Ed.2d 851 (1995). But, when Congress' words admit of more than one reasonable interpretation, "plain meaning" becomes an impossible dream, and an inquiring court must look to the policies, principles and purposes underlying the statute in order to construe it. See Pritzker, 42 F.3d at 67; see also Sullivan v. CIA, [1993] USCA1 270; 992 F.2d 1249, 1252 (1st Cir.1993) (explaining that courts may "look behind statutory language" when the legislature "blows an uncertain trumpet"). Congress, after all, does not legislate in a vacuum.]
 ’Rather, we must follow the canons of statutory interpretation which demand that a court give meaning to each word and phrase when explicating a statute, and read the component parts of a legislative enactment as a unified whole.
[ See United Technologies Corp. v. Browning-Ferris Indus., Inc., [1994] USCA1 432; 33 F.3d 96, 101 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1176, 130 L.Ed.2d 1128 (1995); United States v. Ven-Fuel, Inc., [1985] USCA11 14; 758 F.2d 741, 751-52 (1st Cir.1985); see also Greenwood Trust Co. v. Massachusetts, [1992] USCA1 399; 971 F.2d 818, 827 (1st Cir.1992)] t is apodictic that our first recourse must be to the statute's text and structure.

[See United States v. O'Neil, [1993] USCA1 617; 11 F.3d 292, 295 (1st Cir.1993); United States v. Charles George Trucking Co., [1987] USCA1 276; 823 F.2d 685, 688 (1st Cir.1987). Following this path, it is evident that CERCLA differentiates between "action[s] for recovery of ... costs" and "action[s] for contribution." Compare 42 U.S.C. Sec. 9613(g)(2) with id. Sec. 9613(g)(3). Although Congress did not explicitly plot the boundary that divides these two types of actions, we are not wholly without guidance. Under accepted canons of construction, legal terms used in framing a statute are ordinarily presumed to have been intended to convey their customary legal meaning. See Bradley v. United States, [1973] USSC 49; 410 U.S. 605, 609[1973] USSC 49; , 93 S.Ct. 1151, 1154-55[1973] USSC 49; , 35 L.Ed.2d 528 (1973) (holding that "the law uses familiar legal expressions in their familiar legal sense") (citation omitted); MCA, Inc. v. Wilson, 677 F.2d 180, 186 (2d Cir.1981) (similar); see also 2A Norman J. Singer, Sutherland Stat. Const. Sec. 47.30, at 262 (5th ed. 1992). This precept has special force when, as now, there is no persuasive evidence that Congress aspired to use a particular legal term in some unusual or unorthodox sense.]
Plain words and Structure of statute
In approaching statutory interpretation, "it is axiomatic that the plain words and structure of the statute must be paramount." United States v. Aversa, [1993] USCA1 15; 984 F.2d 493, 498 (1st Cir.1993) (en banc). 
Avoiding Illogical Results.
It is also an established canon of statutory construction that a legislature's words should never be given a meaning that produces a stunningly counterintuitive result--at least if those words, read without undue straining, will bear another, less jarring meaning.

[See Kelly v. United States, [1991] USCA1 32; 924 F.2d 355, 361 (1st Cir.1991); United States v. Meyer, [1987] USCA1 20; 808 F.2d 912, 919 (1st Cir.1987); Sutherland Stat. Const. Sec. 45.12 (5th ed.). This principle goes back to the early days of the Republic. See M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 355, 4 L.Ed. 579(1819)]
Intent to be derived from the wording of  Statute
As a rule, courts should resort to legislative history and other guides to congressional intent when the words of a statute give rise to ambiguity or when they lead to an unreasonable interpretation.
[See, e.g., United States v. Charles George Trucking Co.,[1987] USCA1 276; 823 F.2d 685, 688 (1st Cir.1987); Barry v. St. Paul Fire & Marine Ins. Co., [1977] USCA1 136; 555 F.2d 3, 7 (1st Cir.1977), aff'd[1978] USSC 149; , 438 U.S. 531, 98 S.Ct. 2923, 57 L.Ed.2d 932 (1978). Though we believe that a generous reading of section 3583(e)(3) best comports with plain language, statutory structure, logic, and sound policy, we are aware that ambiguity is commonly thought to exist when statutory language is susceptible to differing, but nonetheless plausible, constructions. See United States v. R.L.C., --- U.S. ----, ----[1992] USSC 34; , 112 S.Ct. 1329, 1334[1992] USSC 34; , 117 L.Ed.2d 559 (1992); cf. Allen v. Adage, Inc., [1992] USCA1 311; 967 F.2d 695, 700 (1st Cir.1992) (explaining when ambiguity exists in the text of a contract). Here, as the weight of authority unquestionably attests, there is room for disagreement over the meaning of the SRR provision. Therefore, we continue our inquiry.]
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When can courts add words in statute

In M. Pentiah and others v. Muddala 
Veeramallappa and others (AIR 1961 SC 1107)at para 27 of the said judgment, wherein, their Lordships of the Supreme Court of India, while referring to the judgment rendered by Denning L.J., sought to rectify a mistake committed by draftsman. The relevant portion of the judgment reads as under :-


Where the language of a stature, in its ordinary meaning and grammatical construction, 
leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.....Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskillfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. Nevertheless, the courts are very reluctant to substitute words in a Statute, nor to add words to it, and it has been said that they will only do so where there is repugnancy to good sense."
It is a very powerful statement and almost prohibits the courts to add words to the Statute and also permits them to make some alterations so that the statute is not reduced to nullity or void.[blogger]
 In 
Seaford Court Estates Ltd. v. Asher  
(1949-2 All ER 155 at p.164), wherein Denning L.J. Said -

" When a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament....... And then he must supplement the written word so as to give "force and life" to the intention of the legislature....A judge should ask himself the question, how if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out 
Act is woven, but he can and should iron out the creases."





No words in Statute is superfluous

[A] court construing a statutory provision must strive to give meaning to every word of the provision.[2]
 The Commonwealth v Baume[3] Griffith CJ cited R v Berchet[4] to support the proposition that it was

“a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent that: ’The  proposition/rule stated above is reinforced by a basic statement that ‘It is also a primary rule of statutory construction that all words used in a statute are presumed to have meaning and effect.[5]’ Statutory provisions must be given some effective work to do.


‘Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision’ has been applied to many cases.[6]


A known rule in the interpretation of Statutes that the acceptable interpretation would be one which does not ignore any clause, sentence, or that word shall prove superfluous, void, or insignificant in the process.’
‘It is necessary to give meaning to all the words in section viewed their statutory context[7].’ Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision[8] to support the proposition that it was
"a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent"


In Ajeet Singh Singhvi v. State of Rajasthan (S.C.)9, the Supreme Court speaking about the harmonious construction in interpretation of Statutes held that the Courts should always presume that the legislature inserted every part of the Statute for a purpose and the legislative intention is that every part of the statute should have effect. The Apex Court proceeded to say that these presumptions will have to be made in the case of rule making authority also. 


In AIR 1976 Madras 55 (Bright Bros.(P) Ltd., v. J.K.Sayani) rightly pointed out as under, "It is one of the cardinal principles of interpretation that no word used by the Legislature in a statute should be ignored or should be held to be meaningless, superfluous or otiose, unless the Court is driven to such a conclusion, having regard to the scheme, object, and other relevant circumstances of the statutory provision."Tamalarasi v. S.Kumarasamy Gounder - A.S.No.404 of 1989 [2003] INTNHC 432 (18 June 2003      
  It is now relevant to refer to a ruling of the Supreme Court reported in (2003) 3 SCC 309 (Mithilesh Singh v. Union of India) where the Supreme Court pointed out that the intention of the legislature has primarily to be gathered from the language used and rejection of words as meaningless has to be avoided. The Supreme Court observed as under, "The intention of the legislature is primarily to be gathered from the language used, and as a consequence a construction which results in rejection of words as meaningless has to be avoided. It is not a sound principle of construction to brush aside word(s) in a statute as being inapposite surplusage; if they can have appropriate application in circumstances conceivably within the contemplation of the statute. In the interpretation of statute, the Court always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect.The legislature is deemed not to waste its words or to say anything in vain. The authorities were, therefore, justified in holding that he was guilty of the offence of absence from duty without proper intimation."Tamalarasi v. S.Kumarasamy Gounder - A.S.No.404 of 1989 [2003] INTNHC 432 (18 June 2003




[1] Project Blue Sky v Australian Broadcasting Authority, Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [71] [71 reads as: Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision[52]. In The Commonwealth v Baume[53] Griffith CJ cited R v Berchet[54] to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".] per McHUGH, GUMMOW, KIRBY and HAYNE JJ

[2] The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414 (Griffith CJ) at 419 (O'Connor J); Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 12-13 per MASON CJ

[3] The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414 per GRIFFITH J

[4] R v Berchet [1794] EngR 1653; (1688) 1 Show KB 106 [89 ER 480]see generally: MAGUIRE v PANKIEWICZ [2009] SASC 169 (12 June 2009)

[5] Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414 per GRIFFITH CJ; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672  at 679 per MASON J; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 382.

[6] The Commonwealth v Baume (1905) 2 CLR 405 at 414, per GRIFFITH CJ; at 419, per O'CONNOR J; Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1 at 12 - 13, per MASON CJ

[7] Ackling v QBE Insurance (Australia) Limited and Anor [2009] NSWSC 881 (28 August 2009) per  JOHNSON J

[8]  (The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414, per Griffith CJ; at 419, per O'Connor J; Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 12 - 13, per MasonCJ). In The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414 Griffith CJ cited R v Berchet [1794] EngR 1653; (1688) 1 Show KB 106 [89 ER 480]