Gopal Mishra v. Pt Ravishankar Shukla University & Others S

in Corocraft Ltd. Vs. Pan American Airways Inc, 1968 3 WLR 714 : (1968) 2 All ER 1059). It is in such a process that purposive interpretation is evolved. 30. It is accepted that general judicial adoption of the term purposive construction is recent, but the concept is not new; and it may now be fashionable to talk of the purposive construction of a statute but the need for such a construction has been recognised since the seventeenth century.' (Viscount Dilhorne in Stock Vs. Fank Jones, 1978 (1) All ER 948) 31. Historically, 'If one looks back to the actual decisions of [the House of Lords] on questions of statutory construction over the past thirty years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive construction of statutory provisions. Changes in the Judicial approach to questions of statutory construction are not the result of some- specific decision of your Lordships House identifiable as a landmark in this field of law. They have been fostered by the influence, persuasive and pervasive, of the similarity of reasoning to be found in the judgements of individual judges even though they may differ as to the result of applying that reasoning to the particular words of the particular statute which is under consideration in the case.' (Lord Diplock in Carter Vs. Bradbeer, 1975 (3) All ER 158). 32. In middle of 20th Century, Lord Denning stated it in a new form by explaining, ' When a defect appears [in a statute] a judge cannot simply fold his hands and blame the drafts-man. 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....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? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.' (See Seaford Court Estates Ltd. Vs. Asher, 1949 (2) 342 All ER 155 (at page 164)) 33. Lord Simonds in a later decision cautioned against the approach of Lord Denning by observing that 'this proposition in a new form cannot be supported. It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation [see below for our comment on naked usurpation]* and it is the less justifiable when it is guesswork with what material the legislature would, if it had discovered the gap, have filled it in. If a gap is disclosed, the remedy lies in an amending Act. Since then English courts __________ * We would like to say few words regarding comments of Lord Simonds, 'naked usurpation of the legislative function under the thin disguise of interpretation'. The courts have always maintained that they interpret the law, and not make the law. This has been subject matter of debates amongst jurists. House of Lords in Shaw vs. DPP: 1961 (2) All ER 446 convicted a publisher of the Ladies Directory a 'Who's Who' of London prostitutes, for corrupting the public morals. Dennis Lloyd in The Idea of Law page 63' says '[I]n doing so House of Lords did not shrink from the fact that this was in effect to confer on judge and juries a discretion to create new offences in accordance with the exigencies of public morals as these might vary from time to time.' David Pannick in his book 'Judges' says 'With increasing regularity as he advances up the legal hierarchy, the judge will need to decide hard cases in which alternative solutions to the dispute may be (and often are in majority and dissenting judgements) respectably justified by reference to existing law. In such cases, the judge makes law. For centuries, English judges deceived each other into thinking that they merely applied the law made by parliament, that their job was only 'to interpret law and not to make law or give law'. {Francis Bacon 'Of Judicature in Essays (1625) (Everyman ed. 1973), p. 162}. This has changed. In considering how judges decide hard cases, 'we do not believe in fairy tales any more'. {Lord Reid, 'The judge as Law Maker' 12 Journal of the Society of Public Teachers of Law 22 (1972)}.' Lord Diplock while advocating for adoption of purposive construction laid down three conditions in Jones Vs. Wrotham Park Settled Estates: 1979 (1) All ER 286 (at page 289): have adopted a middle road.' {See Magor and St. Mellons Rural District Council Vs. Newport Corporation, 1951 (2) All ER 839 (at page 841)} 34. However, at present in England, the law is, 'It is thus impossible to arrive at the terms of the relevant exception by the literal approach. This can be done only by the purposive approach, viz imputing to Parliament an intention not to impose a prohibition inconsistent with the objects which the statute was designed to achieve, though the draughtsman has omitted to incorporate in express words any reference to that intention? {See Lord Diplock in Kammins Ballrooms Vs. Zenith Investments, 1970 (2) All ER 871 (at page 893)}. 35. In Anderton Vs. Ryan, (1985) 2 All ER 355 (at page 359), House of Lords observed, 'Statutes should be given what has become known as a purpose construction, that is to say that the courts should where possible identify 'the mischief which existed before the passing of the statute and then if more than one construction is possible, favour that which will eliminate 'the mischief so identified.' This is how the law stands at present on this point. ________ 'First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law.' The third condition is relevant to ponder. Our Supreme Court too in Vishaka Vs. State of Rajasthan: (1997) 7 SCC 241 laid down guide lines and norms and said : 'We lay down the guidelines and norms specified hereinafter for due observance at all workplaces or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Article 141 of the Constitution.' This is not a point involved in this writ petition and we leave it here to be debated among the jurists. Purposive Interpretation in India 36. Purposive interpretation or construction has found its root in our jurisprudence too. The Apex Court adopted the purposive interpretation in place of literal interpretation to prevent corruption as a penal offence in Municipal Corporation of Greater Bombay and others Vs. Indian Oil Corporation Ltd., 1991 Supp (2) SCC 18 and advocated purposive interpretation in various cases while interpreting the law. Some examples are as follows: • 'Judge must be a jurist endowed with the legislator's wisdom, historian's search for truth, prophet's vision, capacity to respond to the needs of the present, resilience to cope with the demands of the future and to decide objectively disengaging himself/herself from every personal influence or predilections. Therefore, the judges should adopt purposive interpretation of the dynamic concepts of the Constitution and the Act with its interpretative armoury to articulate the felt necessities of the time.' {State of Karnataka vs. Appa Balu Ingale: 1995 Supp (4) SCC 469 (para 34}; • 'It is well settled that the purpose of law provides a good guide to the interpretation of the meaning of the Act.' {SP Jain vs. Krishna Mohan Gupta: (1987) 1 SCC 191 (para 18 at page 201)}; • 'The word wood oil used in the Act will require purposive interpretation drawing upon the context in which the words are used and its meaning will have to be discovered having regard to the intention and object which legislature seeks to subserve. The restricted meaning sought to put up by the accused would frustrate the object and the literal interpretation would defeat the meaning. The legislature does not intent to restrict the word wood oil nor do we find any compelling circumstances in the Act to give restricted meaning that only oil derived from Dipterocarpus trees to be wood oil as contended for the accused and which found acceptance by the learned Single Judge. The purposive interpretation would aid conservation of sandalwood, a valuable forest wealth, prevent illicit felling and transportation of them and make the manufacturers of sandalwood oil accountable for the possession of sandalwood trees or chips or roots etc' {Forest Range Officer Vs. P. Mohammed All: 1993 Supp (3) SCC 627 (para 8)}. 37. Thus strained meaning, applying purposive interpretation or construction, may be adopted where literal meaning is not in tune with the legislative purpose. This legislative purpose may be seen in the light of mischief sought to be remedied. Otherwise violative of Article 14 38. Apart from purposive interpretation, confining the word 'division' would leave this clause to the vice of discrimination—violating constitutional mandate under article 14 of the Constitution. 39. Article 14 of the Constitution guarantees equal protection of law. It means equal treatment in similar circumstances (for rulings, see below)*. Equals cannot treated as unequal (for rulings see below)** 40. The purpose of the subsequent-examination is to improve and to provide better opportunities to the candidates; the groups, where division is changed or marks are improved granting substantial benefit (as in the present case) fall in one class. It seems strange, as to why there should be a discrimination. 41. In case division changes from third to second or from second to the first, the candidate gets advantage in life. So is the case if a candidate secures 55% or more marks in the subsequent- exams. Both fall in the same class however, in the first case, the mark-sheet is issued but in the other case it is not issued. This is discriminatory; it is impermissible. This will invalidate clause 9. No such construction should be adopted. Let's apply the aforesaid principle to interpret the word 'division' in clause 9 of the Ordinance. 42. Considering the purpose and object of the Ordinance, the effort to save it from charge of discrimination—we give broader meaning to the word 'division' as including marks also. 43. In our opinion, the words 'for improving division' a candidate can appear in the subsequent-examination in clause 9 includes 'for improving marks' as well to improve his marks. Of course, the candidate has to satisfy other conditions, namely he should have passed in third or second division. SOME OBSERVATIONS 44. We are not happy the way the University acted in this case. We wish to say something in this regard as well. However, we must confess, 'We, Shrikishan Singh v. State of Rajasthan, 1955 (2) SCR 531 AIR 1955 SC 795; TMA Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, 655 (para345); Govt of AP v. Maharshi Publishers Pvt Ltd (2003) 1 SCC 95, 98-99 (para7); Amit v UOI (2005)13 SCC 721 -State of UP v. Maqbool Ahmad (2006) 7 SCC 521, 525 (para 13); Soma Chakravarty v. State (2007) 5 SCC 403, 411 (para 23) AIR 2007 SC 2149. State of Punjab v. Balkaran Singh (2006) 12 SCC 709, 722 (para 19) AIR 2007 SC 641 [the judges] do not stand aloof on these chill and distant heights; and we shall not help the cause of truth by acting and speaking as if they do. The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges by."1 (Justice Cardozo in 'Nature of Judicial Process') 45. The Appellant is visually challenged to the extent of 75%. He was neither given a writer in the exam nor an hour extra to write the answer as the University was supposed to do. 46. The Appellant is physically challenged as well. He had polio and can walk with great difficulty with help of crutches. On the earlier occasion we had permitted him to sit and argue the case, as he was having difficulty in arguing the case in the upright position. It was for this reason that we appointed a lawyer on his behalf to conduct his case as a friend of the court. 47. A person with such challenges in his life ought to have been encouraged by the University rather than to take the rigid stand taken by it. Law—without compassion and empathy—is meaningless, an empty formality. So is true about administration: it is not worth the paper it's written on. 48. In our opinion, the University should have looked into the hardship and dealt the case with understanding that it deserved rather than to deal it strictly as it did, despite time being granted to consider it. The case should not have come to the court. We leave it here: it is for the University to give it a deeper thought. CONCLUSIONS 49. Our conclusions are as follows: (a) Only candidates securing second or third division are entitled to appear in the subsequent-examination of MCom to improve their division; (b) The word division includes marks also; (c) In case marks are improved granting benefit to the candidates, then proper mark-sheet is to be issued; (d) The Appellant should be issued a fresh mark-sheet and the University will do so; (e) The Appellant shall be treated to have passed the exams as if he had secured the marks secured by him in the subsequent-examination under clause 9 of the Ordinance and will be entitled to the same benefits as given to the other candidates securing such marks. With these[ observations, the appeal is allowed. Appeal Allowed. APPENDIX-1 Clauses number 7 to 9 of the Ordinance are as follows 7. For both the previous and final examination a candidate will be declared successful if he/she obtains at least 36% of the aggregate marks in the subject. No division will be assigned on the result of the previous examination. The division in which a candidate is placed shall be determined on the basis of aggregate of marks obtained in both the M Com previous and M Com final examination. 8. Successful candidates who obtain 60% or more of the aggregate marks shall be placed in the first division, those obtaining less than 60% but not less than 48% in the second division and all other successful candidates obtaining less than 48% in the third division. 9. Candidates who have passed the M Com examination of the University in Third or Second Division and desire to appear at the M Com Examination for improving division may, without attending a regular course of study in a college affiliated to the University or in a Teaching Department of the University be allowed to appear at the aforesaid examination as non collegiate student on the following conditions: (i) There shall be only two division for such candidates i.e First Division and Second Division. The marks required for obtaining these divisions shall be the same as prescribed in the Ordinance i.e. examinees who are successful in final of the examination and have obtained 60% or more of the aggregate of the marks in Previous and Final of the examinations taken together shall be placed in the First Division and examinees who are successful in Final of the examination and have obtained less than 60% but not less than 48% of the aggregate marks in Previous and Final of the Examination taken together shall be placed in the Second Division. (ii) The results of the candidates obtaining less than 48% of the aggregate marks in Previous and Final of the examination taken together shall not be declared. (Hi) Candidates shall have the option to appear at both the Previous and Final examination in one and the same year and for being successful at the examination, the candidates shall obtain 48% of the aggregate marks. Provided that such candidates who opt to appear in Previous and Final examinations separately shall have to obtain minimum aggregate required for the Previous examination but he will have to obtain at least 48% in the aggregate of the Previous and Final examinations taken together or else his result will be cancelled. (iv) The syllabus for the examinations shall be the same as prescribed for the year in which the examination is held. (v) Not more than two attempts shall be allowed to such candidates. Failure or non-appearance at the examination after permission has been accorded by the University, shall be counted as an attempt. Provided however such candidates who opt to appear at the Previous and Final examinations separately will be allowed one attempt at the Previous examination and two attempts at the Final examination. (vi) Candidates who wish to avail the opportunity given in foregoing paras will have to apply for permission as required in the Ordinance relating to Admission of non-collegiate students to the University examination along with requisite Registration Fees. (vii) In case a student improves his division under provision of this para, the fresh degree will be issued after cancelling his first degree. _____________