The Nature of Judicial Power: The Theory of Creative Interpretation

My Lord, Should Section 2(1)(d) of The Protection of Children from Sexual Offences Act, 2012 that defines ‘child’ to mean any person below the age of 18 years, engulf and embrace, in its connotative expanse, the ‘mental age’ of a person or the age determined by the prevalent science pertaining to psychiatry so that a mentally retarded person or an extremely intellectually challenged person who even has crossed the biological age of 18 years can be included within the holistic conception of the term ‘child’?

No.

Recently, Learned Senior Advocate, Mr. Sanjay Hegde, while assisting the Court, submitted that that mental age with a proximate figure can never be constant and is likely to vary with time and surrounding circumstances and, therefore, interpreting the word ‘age’ falling under the definition of ‘child’ to include mental age would ‘breach the settled principles of criminal jurisprudence’ and ‘usher in uncertainty’. Such an interpretation would be beyond the ‘Lakshman Rekha’ – that is, it is no part of the Court’s function to add to or amend the law as it stands.

Since Mr. Hegde’s argument raised the ‘constitutional spectre of separation of powers’, let it first be admitted that under our constitutional scheme, Judges only declare the law; it is for the legislatures to make the law. This is clear on a conjoint reading of Articles 141 and 245 of the Constitution. While declaring the law, can Judges make law as well? This interesting question has haunted Anglo-Saxon jurisprudence for at least 500 years. The whole difficulty lies in defining the limits of the ‘Lakshman Rekha’.

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“I recognize without hesitation that Judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions.”

Justice Oliver Wendell Holmes Jr., Southern Pacific Co. v. Jensen, 244 US 205 at Page 221.

Holmes
Justice Holmes

The Supreme Court of India has echoed the aforesaid statement in at least two judgments – V.C. Rangadurai, 1979 (1) SCR 1054 and B.N. Bhattacharjee, 1979 (3) SCR 1133.

In Directorate of Enforcement, (1994) 3 SCC 440 the Court held:

“Though the function of the Courts is only to expound the law and not to legislate, nonetheless the legislature cannot be asked to sit to resolve the difficulties in the implementation of its intention and the spirit of the law. In such circumstances, it is the duty of the Court to mould or creatively interpret the legislation by liberally interpreting the statute.”

All this has led to the Theory of Creative Interpretation. This theory was reiterated in Elphinstone Spining and Weaving Co. Ltd., (2001) 4 SCC 139. Instances of creative interpretation are when the Court looks at both the literal language as well as the purpose or object of the statute in order to better determine what the words used by the draftsman of legislation mean. In D.R. Venkatachalam, (1977) 2 SCC 273 an early instance of this is found in the concurring judgment of Beg J.

Indeed, the modern trend in other Commonwealth countries, including the U.K. and Australia, is to examine text as well as context, and object or purpose as well as literal meaning [See, Oliver Ashworth Ltd. v. Ballard Ltd., [1999] 2 All ER 791; R. (Quintavalle) v. Secretary of State for Health, [2003] 2 All ER 113; CIC Insurance Limited v. Bankstown Football Club Limited, F.C. (1997) 187 CLR 384, High Court of Australia].

It is clear on a reading of English, U.S., Australian and our own Supreme Court judgments that the ‘Lakshman Rekha’ has in fact been extended to move away from the strictly literal rule of interpretation back to the rule of the old English case of Heydon(1584) 76 ER 637 where the Court must have recourse to the purpose, object, text, and context of a particular provision before arriving at a judicial result.

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My Lord, What is the golden rule in determining whether the Judiciary has crossed the ‘Lakshman Rekha’ in the guise of interpreting a statute?

A reading of the The Protection of Children from Sexual Offences Act, 2012 as a whole in the light of the Statement of Objects and Reasons makes it clear that the intention of the legislator was to focus on children, as commonly understood i.e. persons who are physically under the age of 18 years.

The golden rule in determining whether the Judiciary has crossed the Lakshman Rekha in the guise of interpreting a statute is really whether a Judge has only ironed out the creases that he found in a statute in the light of its object, or whether he has altered the material of which the Act is woven. In short, the difference is the well-known philosophical difference between ‘is’ and ‘ought’. Does the Judge put himself in the place of the legislator and ask himself whether the legislator intended a certain result, or does he state that this must have been the intent of the legislator and infuse what he thinks should have been done had he been the legislator. If the latter, it is clear that the Judge then would add something more than what there is in the statute by way of a supposed intention of the legislator and would go beyond Creative Interpretation of legislation to legislating itself. It is at this point that the Judge crosses the Lakshman Rekha and becomes a legislator, stating what the law ought to be instead of what the law is.

It is clear that viewed with the lens of the legislator, we would be doing violence both to the intent and the language of Parliament if we were to read the word ‘mental’ into Section 2(1)(d) of the 2012 Act. Given the fact that it is a beneficial/penal legislation, we as Judges can extend it only as far as Parliament intended and no further.”

– Hon’ble Justice R.F. NarimanMs. Eera through Manjula Krippendorf v. Govt. of NCT of Delhi, [Criminal Appeal No. 1217-1219 of 2016].

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