"Intention of the Legislature"

 

"Intention of the Legislature” as a concept of “Interpretation of Law” is not a sound “Jurisprudential idea” for the FACT that:

a.     Legislature is an Artificial & Representative Entity,

b.    Concept of Intention is a human-behavior centric idea &

c.     Meaning of Legislative Text is seen through the Individual wisdom to whom the said Law is applied.

For the aforesaid Facts, Tracing Legislature’s intention post its enactment is meaningless as it will always remain Plausible, Perceptive & Subjective & thus can’t be an instrument of Interpretation of Law.

On the contrary, Plausibility Test serves the Individual-Centric governance idea & brings Legal Tranquility for the Law, a feature of society, in order to secure its Legal objective is tested from the point of view of an Individual only.

“Intention of the Legislature” as a concept of “Interpretation of Law” was found wanting in a recent (Dec’ 2019) hearing before a 5 Judge Constitutional Bench of the Hon’ble supreme Court India on interpretation of Section 24 of The Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013, when the Hon’ble Bench in response to the submission by either parties, cautioning it to not to interpret otherwise than what they submitted as the “Intention of the Legislature” as per their respective estimation,

a.     advised that “you may go outside the court, settle your dispute/disagreement about the real Intention of the Legislature & come with one agreed interpretation as the real Intention of the Legislature so that we don’t have to labor beyond that & give your agreed intention a finality in our judgement”

b.    while querying “if anyone has seen the Intention of the Legislature except it is borrowed from their respective reading of various Texts of Law etc.”

One more interesting factual & live context in this regard is worth noting. One Ex-Union Minister, who is accused of & prosecuted under one Union Law on which he then spoke before parliament while presenting the same to it for its enactment/amendment, ironically stood as a mute spectator in a proceeding before the Hon’ble Supreme Court of India in which his own lawyers challenging the said Law’s constitutionality are in loggerhead with the Union of India’s lawyers on its “Intention of the Legislature”. If he could not assert his submission made to the Hon’ble Court as the “Intention of the Legislature” despite he was at the helm of that enactment/amendment, then what is the meaning of “Intention of the Legislature”.

One more compelling fact in this regard needs special mention. It is a common perception in India that critical governance of India involving critical legislation have always emanated from its Political Party in power & those who dominate the said Party & thus, as one may safely say, the “Intention of the Legislature” can be traced to the intention of the President or those who dominate the voice in that Party. If so, no Law made during their tenure will impinge them for they will claim their version as the real “Intention of the Legislature”.  But, only now, the 2 most powerful person of one grand old party is under one such National Law belying the concept of “Intention of the Legislature” in its application on ground.

If no one has seen the Intention except attempts made to trace it from the available Text, why do we use phrase “Intention of the Legislature” as it serves no purpose except, at any given point in time, one has to read it in the background of a set of facts & Laws in a particular context of one Individual/entity in whose context we trace its meaning?

By:

Shri Biswajit Das, Advocate, Supreme Court of India,

Managing Partner, JURIS & JURIS