Use of Parliamentary Debates for Statutory Interpretation in England and India: A Comparative Judicial Critique

• Author: Ajay Kr. Sharma
• Position: Faculty of Law, National Law University, Jodhpur, India
• Pages: 475-517

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2017 e Institute for Migrant Rights Press

is article is dedicated to the Late Francis Alan Roscoe Bennion, though the worth

of this nominal tribute can be judged by its learned readers alone. Any errors and

shortcomings are entirely attributable to the author.

USE OF PARLIAMENTARY DEBATES

FOR STATUTORY INTERPRETATION IN

ENGLAND AND INDIA

A COMPARATIVE JURISPRUDENTIAL CRITIQUE

Ajay Kr. Sharma

Faculty of Law, National Law University, Jodhpur—India

E-mail: aksharma@nlujodhpur.ac.in

is article demonstrates the utility of the Pepper v Hart rule in statutory con-

struction. It critiques dominant judicial and extra-judicial views in England,

which support the traditional “exclusionary rule” and are critical of the Pepper

rule, aer delineating the conceptual principles relating to the interpretation of

statutes. It deconstructs and simplies complex narratives in the dialectical de-

bate centering on this issue, and indulges in a comparative case law analysis,

with the scrutiny of judicial reasoning, regarding the judicially evolved rules

by the highest courts in the U.K. and in India on permissibility and usage of

Parliamentary Debates for statutory interpretation over the years. is article

not only visualizes the contribution and application of the Pepper v Hart rule in

the correct perspective for both the jurisdictions but also, by a critical analysis of

salient Indian Supreme Court judgments, aer the reception of the Pepper rule

in India, advocates for a consistent approach with its proper application.

Keywords: Legal Reasoning, Legal Interpretation, Comparative Law, Constitutional

Law, Common Law, Jurisprudential Reception.

IV Indonesian Journal of International & Comparative Law 475-517 (July 2017)

476

Sharma

I. INTRODUCTION, AND

PRELIMINARY CONCEPTS

is article explores and delineates the conceptual foundational prin-

ciples behind admitting the use of Hansard (or, the ocial reports of

parliamentary debates) in the construction of statutes, appreciating

the position prior to Pepper v Hart (hereinaer Pepper) and changes

brought through it, and the scenario which developed subsequent to it.1

It demonstrates that, since statutory interpretation essentially requires

the court to indulge in an “informed interpretation” of the enactment

under inquiry, and balancing various “interpretative criteria” to arrive

at its “legal meaning,” so the use of Parliamentary Material, especially,

the Hansard may assume importance in a given case as a material ap-

pertaining to the enacting history of a legislation. is article argues,

that the application of Pepper would be erroneous if the Hansard is

brazenly used to control the “legal meaning” of an enactment, particu-

larly when there are other “interpretative factors” pointing in the other

direction.

However, as will be shown, much of the criticism of Pepper’s

decision, at least so far as its application to future cases is concerned,

is also misplaced and unfair. It explores and analyzes the dominant

narratives in the dialectics, which have evolved around Pepper,

judicially and extra-judicially. is article also extensively discusses

the salient Indian Supreme Court cases, from pre-Pepper era to post-

Pepper era in this context. It critiques most of them for either ignoring

Pepper aer it has been judicially noticed in India or, for plainly citing

Pepper without appreciating and applying Pepper rule, and also failing

to unmoor the theoretical underpinnings discussed in this article.

In addition to failing to judicially evolve its own reasoned rule of

admissibility either to adopt the rule in Pepper or, make a modied rule

as per the indigenous requirements for using the parliamentary debates

for statutory construction in India.

Bennion’s admirable treatise on Statutory Interpretation imposes

upon a statutory interpreter (read the court or other judicial/

1. Pepper (Inspector of Taxes) v Hart, A.C. 593 (1993).

477

Use of Parliamentary Debate for Statutory Interpretation in the U.K. and India

Sharma

adjudicative authority, which alone can authoritatively interpret it)2 a

duty to arrive at the “legal meaning” of the enactment under inquiry.3

is “legal meaning” he submits, corresponds to the “legislative

intention”, which is the “paramount criterion”; and so, he declares, that

“the sole object in statutory interpretation is to arrive at the legislative

intention.”4 “Legislative Intention” should not be misconstrued here

in the subjective or originalist sense, but in the objective sense, as a

re ali ty, 5 in the sense as expounded by Lord Nicholls of Birkenhead in

the following words:6

Statutory interpretation is an exercise, which requires the court

to identify the meaning borne by the words in question in the

particular context. e task of the court is oen said to be to

ascertain the intention of Parliament expressed in the language

under consideration. is is correct and may be helpful, so

long as it is remembered that the “intention of Parliament” is

an objective concept, not subjective. e phrase is a shorthand

reference to the intention, which the court reasonably imputes to

Parliament in respect of the language used. It is not the subjective

intention of the minister or other persons who promoted the

legislation. Nor is it the subjective intention of the drasman,

or of individual members or even of a majority of individual

members of either House. ese individuals will oen have

widely varying intentions. eir understanding of the legislation

and the words used may be impressively complete or woefully

inadequate. us, when courts say that such-and-such a

meaning “cannot be what Parliament intended,” they are saying

only that the words under consideration cannot reasonably

be taken as used by Parliament with that meaning. As Lord

Reid said in Black-Clawson International Ltd v. Papierwerke

2. O J, B  S I: A C 69–70 (F

A R Bennion ed., 6 ed. 2013).

3. Id. at 4.

4. Id. at 441.

5. See id. at 444 (declaring, that “legislative intention” is not a myth or ction, but

a reality founded in the very nature of legislation).

6. R v Secretary of State for the Environment, Transport and the Regions, ex p

Spath Holme Ltd., 2 A.C. 349, 396–97 (2001).