Deprecated (16384): The ArrayAccess methods will be removed in 4.0.0.Use getParam(), getData() and getQuery() instead. - /home/brlfuser/public_html/src/Controller/ArtileDetailController.php, line: 150
 You can disable deprecation warnings by setting `Error.errorLevel` to `E_ALL & ~E_USER_DEPRECATED` in your config/app.php. [CORE/src/Core/functions.php, line 311]
Deprecated (16384): The ArrayAccess methods will be removed in 4.0.0.Use getParam(), getData() and getQuery() instead. - /home/brlfuser/public_html/src/Controller/ArtileDetailController.php, line: 151
 You can disable deprecation warnings by setting `Error.errorLevel` to `E_ALL & ~E_USER_DEPRECATED` in your config/app.php. [CORE/src/Core/functions.php, line 311]
Warning (512): Unable to emit headers. Headers sent in file=/home/brlfuser/public_html/vendor/cakephp/cakephp/src/Error/Debugger.php line=853 [CORE/src/Http/ResponseEmitter.php, line 48]
Warning (2): Cannot modify header information - headers already sent by (output started at /home/brlfuser/public_html/vendor/cakephp/cakephp/src/Error/Debugger.php:853) [CORE/src/Http/ResponseEmitter.php, line 148]
Warning (2): Cannot modify header information - headers already sent by (output started at /home/brlfuser/public_html/vendor/cakephp/cakephp/src/Error/Debugger.php:853) [CORE/src/Http/ResponseEmitter.php, line 181]
LATEST NEWS UPDATES | Hot water & ‘grafting’ keep Singur law afloat

Hot water & ‘grafting’ keep Singur law afloat

Share this article Share this article
published Published on Sep 30, 2011   modified Modified on Sep 30, 2011

-The Telegraph

 

Had it not been for a tub of hot water and a celebrated judge in England in 1949, Bengal’s Singur law may have found itself in legal hot water.

Justice I.P. Mukerji, who delivered the Singur judgment, was guided by a 62-year-old English case that dealt with hot water supply by a landlord, according to the order issued on Wednesday.

The Calcutta judge used the principle of “purposive interpretation”, which figured in the English judgment, to rectify a “defect” in the Singur law and upheld it on the basis of “presumption of constitutionality”.

The use of the two doctrines — purposive interpretation and presumption of constitutionality (see chart) — is not uncommon.

But some senior lawyers said rectification by “grafting” the principles of one law into another, as Justice Mukerji had done, was rare in writ courts. Arunava Ghosh, a senior Calcutta High Court advocate, described such “grafting” as “unprecedented in a writ court”. A writ court is a high court bench.

Justice Mukerji has said in his order that he had “great guidance” from the English case heard by Lord Justice Denning, who “made very remarkable statements for purposive interpretations of statutes”.

Lord Justice Denning, who later became Lord Denning, was known as the “people’s judge” in England because of his readiness to override precedent. When he died in 1999 at the age of 100, he was described as “one of the great and controversial judges of the 20th century”.

Like Lord Justice Denning, Justice Mukerji interpreted the presumed intention of the Bengal legislature that passed the Singur law which had a “defect” of “some vagueness and uncertainty” on compensation provisions.

Justice Mukerji then proposed to “rectify” the defect “by purposive interpretation of the provisions of the act”, according to the Singur judgment.

Had such a rectification not been made, the act could have opened itself to charges that it goes against the central land acquisition law. Such a finding would have made the state law invalid as any law that is in conflict with a central one needs to get presidential assent, something the Bengal government did not do.

However, through purposive interpretation, Justice Mukerji concluded that the principles of the two sections from the central act were deemed to have been incorporated in the state act, thus removing a possible point of friction between the two pieces of legislation.

Justice Mukerji considered “the age-old principle that the constitutionality of an act is to be presumed, as it represents the will of the people or at least the majority of the people expressed through the legislature. Furthermore, the act has to be interpreted by the court so as to uphold it. When all attempts to uphold the act fail should the court strike it down.”

The court was suggesting that when the intention of a law is apparent, purposive interpretation should be applied instead of splitting hairs over language.

The crucial question in the Tata case was whether the state law was being illusory about compensation since it did not mention the word “amount”.

The court felt that the absence of such a word was not reason enough to strike down the law.

The judge referred to the 62-year-old case in England where the landlord wanted to raise the rent because hot water was being supplied to the tenant. If the landlord could prove that supplying hot water was a “legal burden”, not just a contractual obligation, he could raise the rent. The English court went to the extent of interpreting “legal burden” to include contractual obligations so as to give relief to the landlord.

In his order, Justice Mukerji quoted Lord Justice Denning in detail to drive home the point that judges are within their right to interpret and iron out creases in a legislation without altering the basic fabric.

“Whenever a statute comes up for consideration, it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were,” Lord Justice Denning had said in his judgment that was upheld by the higher court.

Lord Justice Denning had also felt that a judge must find out the intention of the legislature and take into account social conditions.

“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 he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give ‘force and life’ to the intention of the legislature,” Lord Justice Denning had said.

Justice Mukerji appears to have taken this stand when he ruled that the principles of the two clauses of the central law were deemed to have been included in the Singur law so that the two were not in conflict with each other.

“Being deemed to be fully conscious of the legislative and constitutional history, the legislature used the word ‘compensation’. Therefore, it is deemed to have been aware of the meaning and content of the word as judicially decided,” Justice Mukerji said in his order.

He elaborated in another part of the judgment: “I would declare that the legislature by using the word ‘compensation’ meant compensation based on the principles mentioned in Sections 23 and 24 of the Land Acquisition Act, 1894, as applicable.”

This meant that the principles of the two central clauses, without which the Singur law may have been declared invalid, were deemed to have been incorporated in the law initiated by the state government that, ironically, is opposed tooth and nail to the 1894 law.

Some senior Calcutta High Court advocates said they could not recall another instance in their careers when a judge had used the principles of “purposive interpretation” and “presumed constitutionality” to rectify a constitutional lapse in a legislation and then called it “valid”.

Senior advocate Arunava Ghosh said: “The use of these two principles in giving a judgment is not uncommon. But it is rare to use them to graft something which was not there into a statute, for this is in the exclusive domain of the legislature.”

Arunava Ghosh added: “For instance, to direct the government to use Sections 23 and 24 of the central Land Acquisition Act to compensate the Tatas, which is not there in the Singur Land Rehabilitation and Development Act — this would be unprecedented in a writ court.”

“Such a court should only dwell on whether the legislation is legally valid or invalid. I think that the judge himself has doubts about whether his court had the jurisdiction to do so. For, while concluding his judgment, he has stated that the aggrieved party should be given a chance to ‘test this judgment’ and appeal in a higher court,” the senior advocate said.

Alok Ghosh, one of the senior-most advocates in the high court, told The Telegraph: “Justice Mukerji’s judgment in the Singur land case is unprecedented. No writ court has the jurisdiction to tell the legislature how to rectify itself. In my long career, I have not come across such a judgment. In fact, there is a debate whether even the Supreme Court can ask the legislature to rectify itself. I would call this judgment an experiment which may or may not be accepted by a higher court.”

However, senior counsel and constitutional expert T.R. Andhyarujina said in New Delhi that “the courts can read in or read down provisions while upholding the constitutionality of an act”.

He cited a case of 1957 when the Maharashtra government brought in a law to tax prize-carrying competitions published in newspapers, treating them akin to gambling. But the high court “read down” words in the law to exclude innocuous prize competitions, where no gambling was involved, from the scope of such taxation.

Senior counsel C.S. Vaidyanathan said: “In all the high courts (in what were earlier presidencies), a single judge used to decide the validity of even constitutional acts. The case would then go before a division bench. Only in recent times, certain high courts such as Punjab and Haryana High Court and Delhi have on the administrative side changed their rules to ensure that all constitutional cases are posted before a division bench. This is to eliminate one more layer of appeal in the high court.”

A single judge has as much power and jurisdiction as a division bench to decide such constitutional matters, he said.

The Telegraph, 30 September, 2011, http://www.telegraphindia.com/1110930/jsp/frontpage/story_14572149.jsp


Related Articles

 

Write Comments

Your email address will not be published. Required fields are marked *

*

Video Archives

Archives

Im4Change.org हिंदी वेबसाइट का परिचय. Short Video on im4change.org...

Im4Change.org हिंदी वेबसाइट का परिचय. Short Video on im4change.org...

"Session 1: Scope of IDEA and AgriStack" in Exploring...

"Session 2: Farmer Centric Digitalisation in Agriculture" in Exploring...

"Session 3: Future of Digitalisation in Agriculture" in Exploring...

Objectives | About Us | Workshops | Disclaimer
share on Facebook
Twitter
RSS
Feedback
Read Later

Contact Form

Please enter security code
      Close