Statement analysis and Critical Appraisal of Denning L.J Observation in Seaford Court’s Case (1949)

Introduction

Law as a branch of social science is not definite in nature and tends to alter according to the needs and aspirations of the society[1]. Social conditions create law and law changes in response to social forces. Justice Holmes in 1917 observed that “Law is not a brooding omnipotence in the sky[2]” but rather a pragmatic social order instrument that relies on the political and other values of the societal needs that it is framed to govern[3]. Additionally, eminent Jurist B. Cardozo have elaborated on this stating that the final cause of law is the welfare of the society, and it should be adaptable to cater to the needs and requirements of the society. [4]To give effect to these observations, judges have used judicial creativity as an effective mechanism to interpret statutes and give force and life to the intention of the legislature. There were divergent opinion among many legal jurists and philosophers such as Dworkin, Montesquieu who believed that judges have been assigned the task of interpreting the law, and that while some judicial creativity can be exerted, it must be limited so that the judge does not have complete discretion[5], while Roscoe Pound’s theory of seeing jurisprudence as social engineering promotes judicial creativity by stating that greater societal interests must be considered, and law must work on reconciling members' interests while harmonising inter-relationships.[6]The above quoted observation of Denning L.J in the case of Seaford Court Estates Ltd. v. Asher[7]highlights the value he holds towards upholding judicial creativity that suggests that law does not operate in isolation, and that it fulfils a social mission and the judges must be capable of adjusting or create law to meet the needs of a changing society in addition to interpreting statutes which still holds relevant in today’s time and is our matter of deliberation for this piece.

Statement Analysis cum Critical Appraisal Of The Different Dimensions Involved in Denning’s Observation

“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 above statement by Denning L.J exemplifies the formative literal rule of interpretation of statutes which asserted “plain meaning” of the statutes that existed before judicial inventiveness or judicial creativity supplanted the position. The statement stands testimony to the fact that although a statute is codified with precise thoughtful consideration however, it is an inevitable fact that a human cannot foresee the manifold changes that may occur after 100 years and even though it may establish a basic premise for the issue to be solved, it is impossible for lawmakers to consider every potential circumstance that may arise and enact separate legislation for each one to be addressed and thus, however meticulous a piece of legislation is, there will always be provisions where judges must be creative in interpreting them in order to cater to the requirements of the society.

To elaborate more on this, if we take the example of the Indian Evidence Act, 1872, a two-hundred years old law, the drafters may not have anticipated the greatest and most revolutionary inventions of mankind i.e., computers and digitalization to incorporate provisions for admissibility of electronic evidence in the act initially.[8]The need to incorporate electronic record was felt necessity with the growing evolution of technology in the late 1990s and subsequently the Evidence Act was amended to incorporate relevant provisions for admissibility of the electronic evidence. [9]

Further if we talk about the Maternity Act, 1961[10], which provides maternity benefit pre and post childbirth to women employees. Multiple circumstances may arise in this case, for instance if a woman becomes a mother via surrogacy, a judge might have to provide maternity benefit to both the surrogate and the biological mother considering the surrogate mother would require proper rest because of 9-months of complicated process of pregnancy and to the biological mother as she will be taking care of the baby post birth. Here it is important to quote the observation of Himachal Pradesh HC[11]that suggested that maternity leave to women via surrogacy cannot be denied as distinguishing between a mother begetting a child via surrogacy and natural mother would result in insult. Here it is important to note that, in 1961, the drafters may not have anticipated ways like surrogacy to bore a child, nor would they have anticipated of transgenders becoming mothers in the future course and hence here the judicial creativity comes into the picture to help these circumstances.

Further, if we take into account the Consumer Protection Act of 1986, this legislation was enacted in light of the growing consumer concerns in the market but now as we have separate Consumer Protection Act, 2019 at place, it tries to address the concern surrounding e-commerce which was not foreseen by the drafters of the 1986 Act to cater which highlights that as new dynamic occurrences appear in the society, the law caters to change by the act of judicial creativity of the judges.

“The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized”

The above observation stands testimony to the observation of Chaim Perelman, a noted Belgian rhetorician, who devised that only formal systems are complete and have no internal contradictions which allow formal arguments and mathematics is an example of such a system.[12]The principle of identity, which states that one statement or symbol must relate to only one interpretation, is a key aspect of formal systems. Language is plainly not a formal system since it breaches the idea of identity by having words that have several meanings rather than just one.[13]The following statement “A penny is a penny” according to Perelman, would make absolutely no sense in a formal system. These propositions, on the other hand, make sense because words can have multiple meanings[14]. To quote Supreme Court’s observation in K.P. Varghese Case [15]emphasizing the above quoted observation, the task of interpreting a law is not one that can be completed mechanically since few languages have the precision of mathematical symbols, it is more than a simple reading of mathematical formulae. It is an attempt to deduce the legislature's intension from the language it uses, but it should always be remembered that language is at best an imperfect instrument for expressing human thought, and it would be unreasonable to expect every statutory provision to be "drafted with divine prescience and perfect clarity”.[16]

“A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. In the absence of it, 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.”

Denning L.J continues with his observation by establishing that if acts of parliament were divine and devoid of any imperfections and in a position to cater to any of the developments in the near future, the role of judges would have been mechanical where they would have been just required to simply give a textual read and apply to the circumstance. Since it certainly doesn’t hold good to be true, lacunae tend to exist in the legislations and as observed at the very first place that the drafters cannot foresee the future needs, the drafters cannot be blamed for the same and that’s when the role of judges in the form of judicial creativity comes into picture. The judge in order to comprehend the parliament’s intention in drafting and adopting of a particular law should look into three basic factors: language of the statute, creating an ideal social situation in which the law was formed, and the flaws that the law was intended to address. After identifying these factors, the actual intention of the parliament can be recognized by the judges and accordingly the judges can use its creativity to settle the matter at their hands which may not have its textual impression in the statute used. It is the role of the judge to establish that what is not in the statute, is in the sprit of the statute and the judges have to fill that gap via judicial creativity.

For instance, the judicial creativity in India is a beautiful illustration on how the judges from 1950s to-date have shifted from literal form of interpretation to golden rule of interpretation by the means of judicial creativity to bring new dimensions out of the existing laws.[17]It is here worth mentioning of Article 21 of the Constitution which simply reads as “No person shall be deprived of his life or personal liberty except according to procedure established by law”, covers within its canopy a wide range of rights that finds no mention in the said article however, the judges have attributed several rights under these umbrella terms[18]. In ADM Jabalpur v. Shivkant Shukla[19], the Supreme Court determined that Article 21 is the single repository of all rights to life and personal liberty, and that when it is violated, those rights are taken away entirely. Following the Maneka Gandhi case[20], the Supreme Court adopted a more liberal interpretation of Article 21 and carved forth many rights under its purview to make life more meaningful and worthwhile. The term 'life,' as used by Art.21, encompasses not just the concept of simple material existence, but also all of life's finer aspects such as right to clean environment[21], clean drinking water[22], healthy life[23], means of livelihood etc. [24]which is now covered under the ambit of Article 21, thanks to judicial activism and creativity.

The decriminalization of Sec.377 of IPC is another such example wherein, we observe that this archaic law of 1860 when it was enacted saw homosexuality as a menace to the society violating the moral code of the society. But as time progresses, and the need was felt by the judges that this law now holds no good to the society we live in today, the courts went ahead and used its judicial creativity to decriminalize homosexuality and observed that the right to life and liberty envisioned in Article 21 is worthless unless it includes individual dignity within its scope, and right to dignity includes the freedom to carry out duties and activities that are meaningful expressions of the human self.[25]

Further if we take into consideration of how the judges have linked the Directive Principles under Part IV of the Constitution to the Fundamental Rights under Part III is worth discussing here. The Directive Principles of State Policy serve as a direction for the government; however, they do not have the same force as the Fundamental Rights however, the judges from time to time have tried enforcing DPSP by establishing the fact that both PART-III & IV are complimentary and supplementary to each other[26]. Right to Legal Aid [27]which is covered under Art.39A of the Constitution now has been recognized as a right under the ambit of Article 21 [28]which was only possible as judges felt that even though it finds no mention under Art.21, this still holds prominence under the said article’s guarantee of right to life.

To put into other words: A judge should ask himself the question: If the makers of the Act had themselves come across this luck in the texture of it, how would they have straight ended it out? He must then do as they would have done. A judge must not alter the material of which it is woven, but he can and should iron out the creases”.

Towards this concluding observation, Denning has precisely stated that a judge should evaluate how a drafter would have respond if he discovered an irregularity in the Act's wording. A judge must be careful not to change the law's foundation source, although if it isn't ideal on the surface the judge is obligated and bound by law to correct the flaws. Legislative drafting is a skill that takes years to master as not only does it necessitate sound legal knowledge and social awareness, but it also necessitates precision, lucidity, and brevity. When these elements are lacking, the enactment becomes a messy, inconsistent mess, resulting in doubt, confusion, turmoil, and difficulty in implementation, resulting in a slew of lawsuits. These flaws, on the other hand, can be addressed through appropriate legislative changes or judicial creative interpretation. When a clear and literal interpretation of a statutory provision results in a blatantly nonsensical and unfair consequence, the court will amend the legislature's language or even add its own creativity to it in order to accomplish the legislature's obvious aim and produce logical construction and just results. For instance, the definition of rape under Sec 375 IPC [29]was extended to include several other heinous acts as rape in addition to vaginal insertion which highlights that the core objective of the provision is to punish the rapist however, what constitutes rape today has been altered to incorporate other forms of acts as well which has been ironed via necessary suggested amendments. [30]

Maxwell on Interpretation of Statutes observed that when the language of a statute, in its ordinary meaning and grammatical construction, leads to a total contradiction of the enactment's purpose, or to some inconvenience, absurdity and injustice that could hardly have been intended, a construction can be applied to it that changes the meaning of the words and even the structure of the sentence[31]. Except in the case of necessity or the utter intractability of the language used, a statute's main goal and meaning shall not be rendered null by the drafter's ineptness or ignorance of the law.

My Concluding Critical Appraisal On Denning’s Observation and Judicial Creativity In general

Aristotle has rightly pointed out that every law maybe written in general terms however, it is impossible to write every matter which may arise in due course of time.[32] Lord Denning was one of the strongest advocates of judicial creativity who have remonstrated through the above analyzed observation and his practice that Judges can't stand to be pessimistic. In the face of injustice, they cannot stay powerless, unable, or barren.[33] Undoubtedly, a judge must interpret the law in accordance with the wording chosen by the legislator. However, as Justice Holmes pointed out, a word is not a crystal that is translucent and unchangeable. It is the skin of a living idea, and the colour and content of the skin varies dramatically depending on the conditions and period in which it is used. The judge's job is to give meaning to what the legislature has spoken, and it is this process of interpretation that makes a judge's job the most creative and exciting.[34]The judge breathes life into the dry skeleton provided by the legislative, resulting in a living organism that is appropriate and suitable to meet the society's demands.[35]

In addition to my critical appraisal that I have made while analyzing Denning’s observation above with illustrations, here it is also worth referring to the beginning of Public Interest Litigation in India. The judges in the Supreme Court felt that even if we had legal offices for legal aid, the poor population were unable to pay to go to the courts for justice. As a result, the judges looked for measures to ensure that the impoverished and marginalized segments of society have access to justice. The idea of standing was a major hindrance to poor people's access to justice. It stipulates that only the victim of a lawful harm may seek judicial remedies. So, in one of its groundbreaking decision[36], the Supreme Court held that, where a legal wrong is committed against a person or class of people who, due to poverty, disability, or a socially or economically disadvantaged position, are unable to seek justice in a court of law, any member of the public or any social action group can bring an action in the high court or supreme court to vindicate the rights of the underprivileged. The concept of PIL was nowhere mentioned in the Constitution, neither do we have a separate statute governing this facet of law, however, the success of PIL shows how judicial creativity has not only paved way for catering the needs of the society but also helping the vulnerable groups have access to justice.

Therefore, in my concluding remarks, I would like to state that the value and the principles upheld in Lord Denning's observation has been put in practice by the judges of Supreme Court of India through its activism approach of establishing new dimensions to already codified statutes thereby meeting the societal needs and requirements.

[1] Lawrence Meir Friedman, “Law and Society: An Introduction”, 5, Prentice Hall Publications, 1977.

[2] G Edward White, “Justice Oliver Wendell Holmes: Law and the Inner Self”, 386, Oxford University Press, 1995.

[3] Christopher Hutton, “Language, Meaning and the Law”, 179, Edinburgh University Press, 2009.

[4] Aharon Barak, “Purposive Interpretation in Law”, Princeton University Press, 2011.

[5] William N. Eskridge, William N. Eskridge, Jr., John a Garver, “Dynamic Statutory Interpretation”, Harvard University Press, 1994.

[6] Linus J. MacManaman, “Social Engineering, the Legal Philosophy of Roscoe Pound”,13, Abbey Student Press, 1956.

[7] Seaford Court Estates Ltd. v. Asher, 2 KB 481.

[8] Tejas Karia, Akhil Anand & Bahaar Dhawan, The Supreme Court of India Re-Defines Admissibility of Electronic Evidence in India, 12 DIGITAL EVIDENCE & ELEC. Signature L. REV. 33 (2015).

[9] The Indian Evidence (Amendment) Act, 2000

[10] The Maternity Benefit Act, 1961.

[11] Sushma Devi v. State of Himachal Pradesh, CWP No.4509 of 2020.

[12] Mieczyslaw MANELI, “The New Rhetoric and Dialectics”, Revue Internationale de Philosophie , 1979, Vol. 33, No. 127/128, LA NOUVELLE RHÉTORIQUE THE NEW RHETORIC: Essais en hommage à Chaïm Perelman (1979), pp.216-238.

[13] Id.

[14] Vitalius Tumonis, “Judicial Creativity and Constraint of Legal Rules: Dueling Cannons of International Law”, University of Miami Int. & Comp. Law Review, Vol 20, Issue 1, 2012.

[15] K.P Varghese v. The Income Tax Commissioner, 1981 AIR 1922.

[16] N. Kannadasan v. Ajoy Khose & Ors. Civil Appeal No. 7360 of 2008.

[17] Upendra Baxi, “The Indian Supreme Court and Politics”, 260, Eastern Book Company, 2008.

[18] Ozhair Hussain v UOI, AIR 2003 Del 103.

[19] ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207.

[20]  LIC of India v. Consumer Education & Research Centre, (1995) 5 SCC 482.

[21] Centre of Environment and Food Security v. Union of India, (2011) 5 SCC 676.

[22] In Re: The Proper Treatment of Covid 19 v. For, 2020 SCC OnLine SC 1036; Budhadev Karmaskar v. State of West Bengal, 2012.

[23] State of Punjab v. M.S Chawla, (1997) 2 SCC 83.

[24]  Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.

[25] Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.

[26] Chandra Bhawan Boarding & Lodging v. State of Mysore, AIR 1970 SC 2042.

[27] Constitution of India, Article 39A.

[28] M.H Hoskot v. State of Maharashtra, 1978 AIR 1548.

[29] Indian Penal Code, 1860, Sec.375.

[30] The Criminal Amendment Act, 2013.

[31] Justice R.V. Raveendran, “Some Anomalies in Law and Justice”, SCC OnLine, (https://www.scconline.com/blog/post/2020/04/25/some-anomalies-in-law-and-justice ), (last visited 12.03.2022).

[32] W. Von Leyden, “Aristotle and the Concept of Law”, Philosophy , Jan., 1967, Vol. 42, No. 159 (Jan., 1967), pp. 1-19.

[33] Dennis R. Klinck, “This Other Eden: Lord Denning’s Pastrol Vision”, Oxford Journal of Legal Studies , Spring, 1994, Vol. 14, No. 1 (Spring, 1994), pp. 25-55.

[34] Anthony D’Amato, “Can Legislature Constrain Judicial Interpretation of Statutes?”, Virginia Law Review , Apr. 1989, Vol. 75, No. 3 (Apr., 1989), pp. 561-603.

[35] W.A Wilson, “The Complexity of Statutes”, The Modern Law Review , Sep., 1974, Vol. 37, No. 5 (Sep., 1974), pp. 497-509.

[36] Hussainara Khatoon & Ors. v. State of Bihar, AIR 1979 SC 1369.