External Aids to Interpretation and

Construction

INTRODUCTION

While interpreting a statute true intent of the legislature shall have to be gathered
and deciphered in its proper spirit having due regard to the language used therein.
Where language is clear, external aid for construction is not required. External
aids are relevant only when the language is not clear and two meanings are possible.
Factual events contemporaneous to the time of interpretation cannot be taken into
consideration for interpretation of a statute.

The Supreme Court held in a case that the approach of High Court in interpreting
the Development Control Regulations having regard to certain other factors, namely,
the deluge in Bombay in 2005 as also the requirements of the entire population of
Bombay from environmental aspect was erroneous. It was held that such factors
cannot be taken into consideration for interpretation of a statute.

EXTERNAL AIDS TO CONSTRUCTION

1. Dictionaries

2. Foreign decisions

3. Parliamentary history

4. Historical facts and surrounding circumstances

5. Subsequent social, political and economic developments and scientific inventions

6. Text books

7. Reference to other statutes

8. Contemporanea exposito est fortissimo in lege
9. Websites

PARLIAMENTARY HISTORY

The leading authorities do not provide a precise meaning of the term “legislative
history.” Generally, the term is used to denote documents relating to events that
occurred during the conception, preparation, and passage of the enactment.

Peter Hogg considers legislative history to include the following materials:

1. The report of a royal commission or law reform commission or parliamentary

committee recommending that a statute be enacted;

2. A government policy paper (whether called a white paper, green paper, budget
paper or whatever) recommending that a statute be enacted;

3. A report or study produced outside government which existed at the time of the
enactment of the statute and was relied upon by the government that introduced the
legislation;

4. Earlier versions of the statute, either before or after its introduction into Parliament
or the Legislature;

5. Statements by ministers or members of Parliament and testimony of expert

witnesses before a parliamentary committee charged with studying the bill; and

6. Speeches in the Parliament or Legislature when the bill is being debated.

Absent from the foregoing list are explanatory memoranda which are documents
explaining the contents and objects of the bill to members of the house- frequently
used in some common law jurisdictions, such as Australia. These materials are also
considered to be part of legislative history.

The parliamentary procedure is similar across most common law jurisdictions,

except for the United States. After the draft legislation has been accepted by the
government, it is introduced in the Parliament. It then proceeds through the normal
stages of first and second readings, a reference to committee, report stage, and final
reading of the bill.

House members’ commentary on the bill during the three readings is recorded in
Hansard, the official reporter of parliamentary debates. The vast majority of drafts
are public bills introduced by the government; there are also private bills and private
members’ bills.

It is noteworthy that speeches in Parliament on a statute made subsequent to its

enactment — such as parliamentary statements during the debate on an unsuccessful
amendment to the statute — cannot be considered part of its legislative history. Such
speeches did not occur during the enactment and are not antecedent to the
crystallization of the words in the statute. Therefore, although they are recorded in
Hansard, they cannot be regarded as parliamentary debates on that particular
legislation.

Legislative history — must be distinguished from the so-called social-science data

and other factual materials that have played no role in the legislative process. Social
science data can be introduced as evidence in certain courts, particularly in the
United States, in the form of a “Brandeis brief.”

They are, however, distinct from (and cannot be considered part of) the legislative
history of a statute. Although they can have bearing on the construction of a statute,
social-science data are, in effect, facts submitted to the general rules of evidence. In
contrast, legislative history materials are not facts — neither adjudicative nor
legislative — but rather interpretive aids.

(a) ENGLISH PRACTICE

English practice can be discussed under three sub-headings.:

(I) TRADITIONAL VIEW

English traditional view is that ‘the intent of the Parliament which passed the act is
not to be gathered from the parliamentary history of the statute.’

The Bill in its original form or the amendments considered during its progress in the
legislature are not admissible as aids to construction.
Recommendations contained in the report of a Royal Commission which may have
led to the introduction of the measure in Parliament cannot be used as evidence for
the purpose of showing the intention, i.e., purpose or object of the Act.

The Courts are entitled to consider such external facts as may be necessary to
understand the subject-matter to which the statutes relate or they can also have regard
to the mischief which the statute is intended to remedy. The exclusionary rule has
been relaxed to admit the reports of the Commission preceding statutory measure as
evidence of surrounding circumstances with reference to which the words in the
statute are used.

In Black Clawson International Ltd v Papierwerke Waldhof Aschaffenburg, AG,

the House of Lords unanimously held that the report of a committee presented to the
Parliament proceedings, the legislation could be seen for finding out the then state
of law and the mischief required to be remedied. But the majority held that the report
could not be looked at for finding out the intention of the Parliament, ie, for a direct
statement of what the proposed enactment meant even though the report set out a
draft bill which was enacted without any alteration.
But the minority view was that when the draft bill was enacted without any
alteration, it was Parliament’s intention to do what the committee recommended and
to achieve the object the Committee had in mind and, therefore, the Committee’s
observations on the draft bill would form the most valuable guide to the intention of
the Parliament.

The majority view was followed and it was held that while considering an Act passed
to give effect to a scheme formulated at a Commonwealth Law Ministers conference,
the scheme could be looked at to see the mischief in need of a remedy and the steps
proposed to effectuate the remedy and a white paper preceding a legislation can be
used for the same purpose.

(II) CRITICISM OF TRADITIONAL VIEW

The English practice continued to make the distinction drawn between the refusal to
admit the report of a Committee for purpose of finding out the intention of
Parliament and its relevance as evidence of surrounding circumstances or as aid to
understand the subject-matter to which the statute relates or as indicative of the evil
or defect which the act was intended to remedy, is somewhat obscure. Allen in his
book has referred to it as ‘casuistical’.
If the key to opening of every law is the reason and the spirit of the law and if a
statute is best interpreted when we know why it was enacted then the steps taken for
understanding or defining the object of or the mischief intended to be dealt with by
the statute are themselves a part of the process for getting its meaning.

When the courts start upon the task of interpreting a statute, it is unrealistic and
impractical to divide the exercise into different compartments viz, one leading to
discerning the object or mischief and the other leading to discerning the true meaning
of the statute. The exercise in its entirety is one process for discerning the true
meaning of the Act, or, in other words, the intention of the legislature.

It was held in R v Shivpuri that reports of law commissions preceding legislation

constitute an important material for understanding the legislation and it has been
acknowledged that a careful reading of such a report would have avoided an
erroneous construction which was very soon overruled.

(III) MODERN TREND

In construing statutes, the school of thought that open use should be made of
parliamentary history has been gaining ground. The rule against references to
legislative history is no longer so much a ‘canon of construction’ as a ‘counsel of
caution’. In other words, it is for the Courts to consider what weight is to be given
to the materials that emerge from the scrutiny of legislative history rather than to
automatically to exclude such materials from all considerations as an aid to
interpretation.’ The legislative history of a statute can be looked into only in case of
ambiguity and not otherwise.

In Pepper v Hartx, this trend found an approval. It was held that reference to
Parliamentary material should be permitted as an aid to construction of legislation
which is ambiguous or obscure or the literal meaning of which leads to absurdity.
Even in such cases, references in court to parliamentary material should only be
permitted where such material clearly discloses the mischief aimed at or the
legislative intention lying behind the ambiguous or obscure words.
It was further held in this case that ‘the court cannot attach a meaning to words which
it cannot bear, but if the words are capable of bearing more than one meaning, why
should not Parliament’s true intention be enforced.’ It was also observed that ‘given
the purposive approach to construction now adopted by courts in order to give effect
to the true intention of the legislature, the fine distinctions looking for the mischief
and looking for the intention is using words to provide the remedy are technical and
inappropriate.
There were two objections to this:

1) Parliamentary materials are not readily available but it was said that experience
has shown that non-availability of materials has not raised any practical problems in
countries like Australia and New Zealand.

2) Another objection raised was that recourse to Parliamentary material will amount
to questioning the freedom of speech and debates in Parliament. But this objection
was rejected and it was held that far from questioning the independence of
Parliament and its debates, the courts would be giving effect to what is said and done
there.

Pepper v Hart is a landmark decision relating to resorting to parliamentary history

as an external aid to construction.
The facts of the case were:
There was an appeal by taxpayers who were teachers in a school. Under a scheme
of the school, the members of the staff were entitled to have their children educated
at the school on payment of only one-fifth of the normal fee chargeable from
members of the public. Cash equivalent to this benefit’ was chargeable to income-
tax under Section 61 (1) of the Finance Act, 1976.
The concessionary fees more than covered the additional cost to the school of
educating the tax-payers children. Section 63(1) said that cash equivalent to the
benefit meant ‘an amount equal to the cost of the benefit’ and Section 63 (2) gave
the meaning of cost of benefit as the amount of any expense incurred in or in
connection with its provision. Now the question, in this case, was ‘what is the true
meaning of s 63(2)’.
The House of Lords found that Section 63(2) was ambiguous. Therefore, the
reference was made to the Parliamentary history and statements made by the
Financial Secretary to the treasury during the Committee stage of the bill which
clearly showed that the Parliament had passed the legislation with the intention that
the concessionary benefits for teacher’s children would be worked on the additional
or marginal cost to the employers and on the average cost. On this basis the
construction contended for by the tax payers was upheld.

b) AMERICAN PRACTICE
In contrast to the traditional English practice, under American practice, the old rule
of exclusion of parliamentary history has been very much relaxed. Although it is
generally accepted that “debates in Congress are not appropriate or even reliable
guides to the meaning of the language of an enactment”, it has been held that the
said rule “is not violated by resorting to debates as a means of ascertaining the
environment at the time of enactment of a particular law, that is, the history of the
period when it was adopted.”

Further, it appears to be well accepted that “the reports of a committee, including the
bill as introduced, changes made in the frame of the Bill in the course of its passage
and the statement made the committee chairman in charge of it, stand upon a
different footing, and may be resorted to under proper qualifications.”

It is easy to find opponents and supporters of these views. Some critics even in
America feel that recourse to legislative history is a badly overdone practice of
dubious help to true interpretation. It has been characterized as ‘the custom of re-
making statutes to fit their histories.’ It has also been pointed out that the practice
poses serious practical problems for a large part of the legal profession.

The formal Act is no longer a safe basis on which a lawyer may advise his client and
he must consult all of the committee reports on the bill and all its antecedents, and
all that its supporters and opponents said in debate, and then predict what part of the
conflicting views will likely appeal to a majority of the Court.

Further, it has been stated that the most unfortunate consequence of resort to
legislative history is that it introduces the policy controversies that generated the Act
into the deliberations of the Court. Prof. Reed Dickerson after analyzing the uses and
abuse of legislative history concludes that “the more realistic approach to legislative
history would be to end or severely limit its judicial use.”

On the other hand, those who support the liberal use of legislative materials for the
purpose of construction says that the meaning of the words of a statute is resolved
in the light of their setting in the legislative process rather than in the light of the
intuition of the judge. According to this view, liberal use of legislative material is
one of the modern efforts so that judicial lawmaking under the guise of interpretation
may be reduced to its necessary minimum.

It will appear that a wholesale inclusion of parliamentary history as also a wholesale

inclusion thereof are both extremes equally open to objections, and the correct
solution lies in finding out a middle course as now adopted by the House of Lords.

c) INDIAN PRACTICE
The Supreme Court has used the aid of Parliamentary history in resolving questions
of construction but it can be said that the Supreme Court generally has enunciated
the said rule of exclusion of Parliamentary history in the way it was traditionally
enunciated by English Courts.

But in a few cases, it has been held that the legislative history within circumspect
limits may not be consulted by the Courts in resolving ambiguities. Legislative
history and precedent English statutes may be taken into consideration in
giving a beneficent interpretation to a provision in an act. In determining
legislative intent, even a minister’s budget speech was taken into consideration.

(i) BILL
As the speeches made by the members of the Constitution Assembly in the course
of debates on the draft Constitution cannot be admitted as an external aid to the
Constitution, in the same way, the debates on a Bill in Parliament are not admissible
for construction of the Act which is ultimately enacted.

In State of Travancore v Bombay Co Ltd, it was held that a speech made in the
course of the debate on a bill could at best be indicative of the subjective intent of
the speaker, but it could not reflect the inarticulate mental process lying behind the
majority vote which carried the bill. Nor is it reasonable to assume that the minds of
all those legislators were in accord.
In Chiranjit Lal Chowdhary v Union of India, Fazal Ali, J, admitted Parliamentary
history including the speech of the Minister introducing the Bill as evidence of the
circumstances which necessitated the passing of the Act, a course apparently
approved in later decisions.
In Union of India v Harbhajan Singh, extensive references were made to speeches
in the Constituent Assembly to support the construction that wealth-tax on net-
wealth including the capital value of agricultural lands fell within the residuary
power of the Parliament.
In Indira Sawhney v Union of India, the Supreme Court referred to Dr. Ambedkar’s
speech in the Constituent Assembly and observed interpreting Article 16 (4), ‘that
the debates in the Constituent Assembly could be relied upon as an aid to
interpretation of a constitutional provision is borne out by a series of decisions of the
Court.’
Since the expression backward classes of citizens are not defined in the Constitution,
the reference to such debates is permissible to ascertain at any rate the context,
background, and objective behind them. Particularly where the courts want to
ascertain the ‘original intent’ such reference may be unavoidable.
The amendments considered during the progress of a bill were ruled out as
inadmissible for purposes of construction of the Act. This principle was modified by
the Supreme Court in the case of Express Newspapers (Pvt) Ltd v Union of India.
The Court observed that there is a consensus of opinion that the circumstances under
which a particular word came to be deleted from the original Bill as introduced in
the Parliament and the fact of such deletion when the act to be passed in the final
shape are not aids to the construction of terms of a statute. It is applicable only when
the terms of a statute are vague or ambiguous.

In K.S.Paripoornan v State of Kerala, it was held that speeches of members of

Parliament are not admissible as extrinsic aids, although the speech of the mover of
the bill can be referred to find out the object intended to be achieved by the Bill.
Similarly, it was held that statements made by a Minister in the house who had
moved the Bill in Parliament could be referred to ascertain the mischief sought to be
remedied by legislation but it could not be relied on for interpreting provisions of
the enactment.
(ii) STATEMENT OF OBJECTS AND REASONS
The statement of objects and reasons accompanying a legislative bill cannot be used
to ascertain the true meaning and effects of the substantive provisions of the
legislation, but it can certainly be pressed into service for the limited purpose of
understanding the background, the antecedent state of affairs and the object that the
legislation seeks to achieve. If the meaning of the provision of a statute is clear and
explicit, it is not necessary to advert to the objects and reasons thereof.

The Statement of Objects and Reasons is undoubtedly an aid to construction but that
by itself cannot be termed to be and by itself as an aid to the construction of a statute.
It is a useful guide but the interpretations and the intent shall have to be gathered
from the entirety of the statute. In Ashwini Kumar’s case, the statement of Objects
and Reasons was ruled out as an aid to the construction of a statute.
When the validity of a particular statute is brought into question, a limited reference
may be made to the Statement of Objects and Reasons but it may not be relied on. It
may be employed for the purposes of comprehending the factual background, the
prior state of legal affairs, the surrounding circumstances in respect of the statute
and the evil which the statute has sought to remedy. It cannot be the exclusive footing
upon which a statute is made a nullity through the decision of a court of law.

The Statement of Objects and Reasons can be referred only for understanding the
background, the antecedent state of affairs, the surrounding circumstances in relation
to the state of affairs, and the evil which the statute has sought to remedy. It can be
referred to only to ascertain conditions prevailing at the time which prompted the
introduction of Bill but where the language of the statute is clear and plain it is not
required to be referred to.

It cannot be utilized for the purpose of restricting and controlling the plain meaning
of the language employed by the legislature in drafting a statute and excluding from
its operation such transactions which it plainly covers. In CIT, MP v Sodra
Devi, while dealing with Section 16(3) of the Income Tax Act 1922 as introduced
by the Amending Act IV of 1937, and in construing the words ‘any individual’ and
‘such individual’ occurring therein, Bhagwati J restricted their meaning to ‘males’
on a consideration that the statement of objects and reasons appended to the Bill of
Amending Act made it clear that the evil which was sought to be remedied was the
one resulting from the widespread practice of husbands entering into nominal
partnerships with their wives and fathers admitting their minor children to the
benefits of partnerships of which they were members and that the only intention of
the legislature was to include the income derived by the wife or a minor child, in the
computation of total income of the male assessee, the husband or the father, as the
case may be.
In Babu Ram v State of U.P, it was held that the statement of Objects and Reasons
can be referred to ascertain mischief sought to be remedied by the statute.
However, the Statement of Objects and Reasons have never been held admissible
for determining whether a certain provision of the Act, which was ultra vires was or
was not severable from the other provisions of the Act. A provision inserted by
subsequent amendment cannot be construed on the basis of the statement of objects
and reasons of the original statute.

(iii) COMMISSION/ INQUIRY COMMITTEE

Reports of Commissions or Inquiry Committees preceding the introduction of a Bill
have also been referred to as evidence of historical facts or of surrounding
circumstances or of mischief or evil intended to be remedied and at times for
interpreting the act. In the Transfer of Property Act, Section 53 A was inserted on
the basis of recommendations of the Special Committee set up by the Government
of India.
Examples can also be taken from Sodra Devi’s Case in which Income Tax Enquiry
Report was referred, in Express Newpaper’s Case where the Press Commissions
Report was referred and in Madanlal’s Case where the report by Committee
appointed to bring changes in Company law was referred.

In CIT, AP, v Jayalakshmi Rice, and Oil Mills Contractor Co, it was held that the
report of the special committee which had been appointed by the Government of
India to examine the provisions of the Bill which later became the Partnership Act
could not be admitted for interpreting the provisions of the Act.
But a different view was taken in RS Nayak v AR Antuley where the court held that
report of the Committee which preceded the enactment of legislation, reports of Joint
Parliamentary Committee and Report of a Commission set up for collecting
information leading to the legislation are permissible external aids to the
construction of the Act.
In M Ismail Faruqqui v Union of India, it was held by the Supreme Court that
white paper issued by the Government detailing the facts leading to enactment of a
statute is also admissible for understanding the background when the court is called
upon to interpret and decide the validity of the statute. In understanding the
background of the Babri Masjid dispute, in deciding the reference made
under Article 143 and the constitutionality of the Acquisition of Certain Areas of
Ayodhya Act 1993 extensive reference was made by the Supreme Court to the white
paper.
In Samantha v State of Andhra Pradesh, in interpreting para 5(2) of the 5th
Schedule of the Constitution, reports of drafting committee and sub-committees of
the Constituent Assembly, the Draft Constitution and changes made thereafter in
giving it the final shape were referred by the Supreme Court.
However, in Maharani Kusumkumari v Kusumkumari Jadeja, the Law
Commissions Report as an external aid to construction was not relied on.

(iv) PARLIAMENTARY DEBATES

Parliamentary debates at the time of introduction of bill may be used as an external
aid in interpretation. It is a settled position that there can only be limited use of
Parliamentary Debates. The court should not normally critically analyze the
proceedings of Parliament. In Milton v DPP, in interpreting the term ‘prosecution’
under the Income Tax Act, a minister’s speech at the time of introduction of Bill has
been taken into consideration.

(v) LETTERS
The letter written by Law Minister cannot override the statutory provision. When
the statute is very clear, whatever statement made by the Law Minister on the floor
of the House cannot change the words and intendment borne out from the words. It
was held that such a letter cannot be read to interpret the provisions of Section 100A
CPC. The intention of the Legislature is more than clear in the words and the same
has to be given its natural meaning and cannot be subject to any statement made by
the Law Minister in any communication. The words speak for themselves. It does
not require any further interpretation by any statement made in any manner.
CONCLUSION
Even if accepted, in the case of Parliamentary History as an aid to construction of a
statute, the general principle followed is that it can be used only in cases where the
statute is not clear or is ambiguous. Some Parliamentary opinions like ‘Bills’ and
‘statement of objects and reasons’ and Parliamentary debates are resorted to only to
a limited extent if at all accepted. However, reports of Commissions have more
authority in this regard.

On analysis, it is clear that courts under Common Law jurisdiction are wary of
accepting Parliamentary History as an external aid to interpretation of the statute.