RULE OF PURPOSIVE CONSTRUCTION WITH CASE LAWS

INTRODUCTION

The purposive approach sometimes referred to as purposive construction, purposive interpretation, or the “modern principle in construction” is an approach to statutory and constitutional interpretation under which common law courts interpret an enactment (that is, a statute, a part of a statute, or a clause of a constitution) in light of the purpose for which it was enacted.

The historical source of purposive interpretation is the mischief rule established in Heydon’s Case. Purposive interpretation was introduced as a form of replacement for the mischief rule, the plain meaning rule and the golden rule to determine cases. Purposive interpretation is exercised when the courts utilize extraneous materials from the pre-enactment phase of legislation, including early drafts, committee reports, etc. The purposive interpretation involves a rejection of the exclusionary rule.

Critics of purposivism argue it fails to recognize the separation of powers between the legislator and the judiciary. The legislator is responsible for the creating the law, while the judiciary is responsible for interpreting law. As purposive interpretation goes beyond the words within the statute, considerable power is bestowed upon the judges as they look to extraneous materials for aid in interpreting the law.

RULE OF PURPOSIVE CONSTRUCTION

Purposive construction of a statute is a functional approach adopted by the court to give full effect to the ‘purpose and object’ or the ‘reason and spirit of the Act so as to arrive at a just result. The true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose and object which comprehends the mischief and its remedy to which the enactment is directed.

This rule is an extension of the Mischief Rule and has been applied by the Courts when an anomaly arises in the interpretation of an Act to give effect to the object and purpose of the legislation. There is a definite purpose and spirit behind every Act in pursuance of which it was enacted by the Parliament. The Courts in the guise of interpretation, have to do the job to promote that intended purpose and spirit of the Act.

Purposive construction must be applied to provisions to ensure that true intent of the makers must be carried on. While the plain reading causes an anomaly or hardship, the purposive or contextual construction may be preferred to arrive at a more just, reasonable and sensible result.

LEADING CASE LAWS

REV. STAINISLAUS v STATE OF MP  1977

(Purposive construction must be applied to provisions so as to ensure that true intent of the statute is carried on; Madhya Pradesh Dharma Swatantrta Adhiniyam, 1968 and Orissa Freedom of Religion Act, 1967 were held to be valid and within the vires of the Constitution).

Facts: The appellant Rev. Stanislaus raised a preliminary objection that the State Legislature did not have necessary Legislative Competence in enacting the Madhya Pradesh Dharma Swatantrta Adhiniyam, 1968 and the same was ultra vires the Constitution as it did not fall within the purview of Entry-I of the List Il of Seventh Schedule.

The Magistrate, the Additional Sessions Judge and the High Court took the view that provisions were valid and did not violate Article 25(1). The High Court held that:

What is penalized is conversion by force, fraud or by allurement, and every person has a right to profess his own religion. Any interference with that right of the other person by conversion, force, fraud or allurement cannot be allowed. The Act guarantees equality of religious freedom to all.

On the other hand, the Orissa High Court had set aside as unconstitutional the Orissa Freedom of Religion Act. 1967.

Observations

The word ‘propagate’ has been used in Article 25(1) of the Constitution in the sense that, for what the Article grants is not the right to convert another person to one’s own religion, but to transmit or spread one’s religion by an exposition of its tenets. The M.P. and Orissa Acts providing for the prohibition of conversion from one religion to another by use of force or allurement, or by fraudulent means, relate to ‘Public Order’ (a State subject) and not ‘Regulation of Religion’ (a Union subject).] In this case, the controversies were related to the M.P. Dharma Swatantraya Adhiniyam, 1968 and the Orissa Freedom of Religion Act, 1967. The provisions of the two Acts which were in dispute were related to prohibition of forcible conversion and punishment there for. The appellant Rev. Stainislaus was prosecuted for the commission of offence under Sec. 3, 4 and 5(2) of the Madhya Pradesh Act.

The common questions which. were raised for the consideration of the Apex Court were as follows:

(1) Whether the two Acts were in violation of the fundamental right guaranteed under Article 25(1) of the Constitution, and

(2) Whether the State Legislatures were competent to enact them?

The provision in contention viz. Article 25(1) of the Constitution reads as follows: “Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.”

Counsel for the appellant argued that the right to ‘propagate’ one’s religion means the right to convert a person to one’s own religion. On that basis, the counsel argued further that the right to convert a person to one’s own religion is a fundamental right guaranteed by Article 25(1) of the Constitution.

The learned court held: “We have no doubt that it is In this sense that the word ‘propagate’ has been used in Article 25(1). for what the Article grants is not the right to convert another person to one’s own religion, but to transmit or spread one’s religion by an exposition of its tenets. It has to be remembered that Article 25(1) guarantees “freedom of conscience” to every citizen, and not merely to the followers of one particular religion, and that, in turn postulates that there is no fundamental right to convert another person to one’s own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the “freedom of conscience” guaranteed to all the citizens of the country alike.”

S.R. Chaudhuri v. State of Punjab (2001)

(A construction which furthers the purpose of the enactment has to be favoured: the re-appointment as minister without being elected is invalid).

Facts: Respondent No. 2, Shri Tej Prakash was appointed as a Minister of Punjab on the advice of CM, H.S. Brar, and at the time of his appointment as such minister, he was not a member of the Legislative Assembly of Punjab. He failed to get himself elected as a member of the Legislature within a period of six months and submitted his resignation. Upon change in leadership of the ruling party, the respondent was again elected as Minister by CM Mrs. R.K. Bhattal.

The appellant filed a petition seeking writ of quo warranto against Respondent No. 2 as his appointment for a second time without being elected was violative of constitutional provisions.The High Court dismissed the petition in limine.

Issue: Whether the re-appointment of a person as Minister for a second time without being elected to the assembly, during the term of the same Legislative Assembly, was invalid and hence void?

Observations: The Court observed that-

1. (Article 164(4) of the Constitution reads as “A Minister who for any period of 6 consecutive months is not a member of the legislature of the state shall at the expiration of the period cease to be a minister”
2. Article 164(4) provides that if a non-member is appointed a minister, he would cease to be a minister unless in a short period of six consecutive months from the date of his appointment he gets elected to the legislature.
3. The ambit and scope of Article 164(4) came up for consideration in Har Sharan Verma v. T.N. Singh [(1971) where the Supreme Court held that the Governor has the discretion to appoint, as a Chief Minister, a person, who is not a member of the Legislature at the time of his appointment, but the CM is required, to get himself elected to the Legislature within a period of six consecutive months.
4. In S.P. Anand v. H.D. Deve Gowda, the appointment of Shri H.D. Deve Gowda as Prime Minister was upheld by the Supreme Court while he was not a member of the Parliament.
5. Parliamentary democracy envisages: (i) representation of the people, (ii) responsible government and (iii) accountability of the Council of Ministers to the Legislature.
6. In Samsher Singh v. State of Punjab [1975 1 SCR 814], Justice Krishna Iyer observed, “Not the Potomac, but the Thames, fertilizes the flow of Yamuna, if we may adopt a riverine imagery” meaning thereby that India has to a large measure adopted the Westminster form of Government.
7. The framers of the Constitution did not visualize that a non-legislator can be repeatedly appointed as Minister for a term of six months each time, without getting elected, because such a course strikes at the every root of Parliamentary Democracy.
8. Constitutional provisions are required to be understood and interpreted with an object-oriented approach (i.e. purposive construction). A Constitution must not be construed in a narrow and pedantic sense.
9. The non-election could not permit him to be appointed as a Minister once again during the term of the Legislative Assembly. The “privilege” is only a one-time slot, and it not being the privilege of the Chief Minister, therefore, it is not permissible for different Chief Ministers to appoint the same individual as Minister during the course of same assembly.
10. Also, the non-member is not entitled to vote during the period of 6 months or until he is elected to the assembly.
11. Article 164(1) and 164(4) have to be so construed that they further the principle of a representative and responsible government. The interpretation, therefore, must be such that the expectation of the founding fathers and constitutionalists are fulfilled rather than frustrated.

Decision: The Court held that the re-appointment of the Respondent No. 2 as Minister, during the term of the same Legislative Assembly. without getting elected in the meanwhile, was improper, undemocratic, invalid and unconstitutional. The court set aside his reappointment and allowed the appeal.

Staté of Mysore v. R.V. Bidap (1974)

The tenure of 6 years of a chairman of Public Service Commission does not start from his becoming an ordinary member of the Commission but runs from the date he becomes the chairman.

Facts: The respondent Shri R.V. Bidap was appointed member of the Orissa State Public Service Commission. During his tenure as a member, he was appointed chairman of the Commission. The State took the view that the six years assured to him by Article 316(2) commenced to run from the date he became member simpliciter and did not receive a fresh start, from the later date when he assumed office of chairman.

Issue: Whether an ordinary member of Public Service Commission is eligible for a fresh period of six years when he is appointed as chairman of the commission?

Observations: The Court referred to the Constitutional provisions of Article 316 to 319:

• Article 316(2) sets a limit of 6 years for the office of a member of a Public Service Commission and an outer limit of 60 years of age (65 years in case of UPSC.
• “The Rule of Exclusion’, insists that in interpreting statutes, the proceedings in the Legislatures, including speeches delivered when the statute was discussed and adopted, cannot be cited in Courts. But the ‘Rule of Exclusion’ has also been criticised as artificial.
• Many jurists are of the view that such extrinsic materials should not be decisive but they must be admissible.
• Where it is plain, the language prevails, but where there is obscurity and lack of harmony with other provisions, it may be legitimate to take external assistance, such as the object of the provisions, the mischief sought to be remedied, the social context, the words of the authors and other such allied matters.
• A chairman is also a member, as the very first words of Article 316 indicate. Nevertheless, the office of a member is different from that of the Chairman.
• Thus while both are members, they hold different offices. The tenure to the office of chairman begins when he starts functioning as chairman.
• The cardinal point is the identity of the office and the injunction is against the re-appointment to that particular office. A member can fill one of the two offices as an ordinary member or as a member-chairman and the disability for reappointment attaches to the specific office. The distinction is fine but real. (viii) The offices being different, it is wrong to describe the appointment of a member to the office of chairman as re-appointment.
• It follows from this that an ordinary member when elevated to the higher office of chairman is not re-appointed and does not contravene Article 316(2) or 316(3) even if it be on the full course of six years of the office of ordinary member having run out.

Decision: V.R. Krishna Iyer J. held that when an ordinary member of a Public Service Commission is appointed as the chairman of the Commission, he is eligible for a period of six years as chairman in that office and his tenure of six years. does not start on his becoming an ordinary member of the Commission.

KOPPISETTI SUBHARAO v STATE OF ANDHRA PRADESH 2009

In this case, the Apex Court held that the definition of ‘dowry’ under the Dowry Prohibition Act, 1961 emphasizes that any money, property or valuable security given as a consideration for marriage ‘before, at or after’ the marriage would be covered by the expression ‘dowry.’ Under Sec. 4, mere demand of dowry is sufficient to bring home the offence to an accused. Marriage in this context would include a proposed marriage also more particularly when the non-fulfillment of the ‘demand of dowry’ leads to the ugly consequence of “the marriage not taking place at all.

The Court further ruled that the word ‘husband’ in Sec498-A, IPC is not limited to cover only those persons who have entered into legally valid marriage. The thrust of the offence under this section is subjecting of the woman to cruelty. Likewise, the thrust of the offence under Sec. 304-B, IPC is also the ‘dowry death.’ Consequently, the evil sought to be curbed are distinct and separate from the persons committing the offending acts and mere could be no impediment in law to liberally construe the word/expressions relating to the persons committing the offence so as to rope in not only the validly married but also anyone who has undergone some or other form of marriage and thereby assumed for himself the position of ‘husband’ to live, cohabitate and exercise authority as such husband over another woman.

The Court observed: The purpose for which Sec. 498-A and 304-B, IPC were introduced cannot be lost sight of. Legislations enacted with some policy to curb and alleviate some public evil rampant in society and effectuate a definite public purpose or benefit positively requires to be interpreted with certain element of realism too and not merely pedantically or hyper-technically. The obvious objective was to prevent harassment to a woman who enters into a marital relationship with a person and later on becomes a victim of the greed for money.

Can a person who enters into a marital arrangement be allowed to take a shelter behind a smoke screen to contend that since there was no valid marriage the question of dowry does not arise? Such legalistic niceties would destroy the purpose of the provisions. Legislature has taken care of children born from invalid marriages. Sec. 16 of the Hindu Marriage Act, 1955 deals with legitimacy of children of void and voidable manages. Can it be said that the legislature which was conscious of the social stigma attached to such children closed eyes to the plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship? If such restricted meaning is given, it would not further the legislative intent.

The Court, thus, held: It would be appropriate to construe the expression ‘husband’ to cover a person who enters into a marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty of coerces her in any manner for any purposes enumerated in Sec. 304-B and 498-A, IPC. Such an interpretation known and recognized as purposive construction has to come into play in a case of this nature.

K.P. Varghese v. Income Tax Officer

This is another important judgment of the Supreme Court, where a great use of the rule of Purposive interpretation was made to save an innocent assessee from the rigours of the Income Tax law. In this case, an assessee sold a house, purchased by him in 1958 at the price of Rs 16,500, in 1965 at the same price of Rs16,500. In this regard, the tax authorities had fixed the market price of the property at Rs 65,000 and had alleged that the assessee had understated or concealed the consideration actually received by him. The question that was involved in the present case was with respect to the interpretation of Section 52(2) of the Income Tax Act. On a plain reading of the clause, the only condition for attracting the applicability of that provision was that the fair market value of the capital asset transferred, on the date of transfer, exceeds the full value of the consideration declared by the assessee in respect of the transfer, by an amount not less than 15 per cent of the value so declared. Once the Income Tax Officer became satisfied that this condition existed, he could proceed to invoke the section.

The Court, however, stated that such literal construction of the section was not acceptable. The section had to be interpreted with respect to the object and purpose, the legislature had in view, in enacting the provision and the context of the setting in which it occurred. In order to ascertain the intention of the legislature the Court, took into consideration the speech of the Finance Minister, wherein it was stated by him that Section 52(2) was brought to deal with such cases where the actual consideration received for the transfer was “considerably more” than that declared or showed by the assessee, it was not to strike at honest and bona fide transactions. Thus, it was concluded by the Court, that sub-section (2) would have no application in the present case and the assessee cannot be made liable for an honest and bona fide transaction undertaken by him, where he has fully declared the consideration that was received by him.

Advantages

• It makes sense to look at the whole purpose of the act
• It gives effect to parliaments intentions
• It allows judges to use their common sense
• It is also sensivble to use external aids like Hansard
• It allows judges t9o consider social and technological changes

Disadvantages

• Finding the intention of parliament can be quite difficult
• It is undemocratic.
• It might cause uncertainty if a judge changes the meaning of a statute

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