CHAPTER 4 Suggestions Recommendations and Conclusions

Transcription

1 CHAPTER 4 Suggestions Recommendations and Conclusions

2 CHAPTER 4 SUGGESTIONS RECOMMENDATIONS AND CONCLUSIONS SUGGESTIONS RECOMMENDATIONS Statutes are designed to operate over indefinite periods of time, so they should be viewed in a continuum. An intention to produce an unreasonable result is not to be imputed to a statute if some other construction available. 877 If the statutory provision is unambiguous and if from that provision, the legislative intent is clear, we need not to call into aid the other rules of interpretation of statutes. The rules are called into aid when the legislative intent is not clear. The Judge must not sacrifice the general to the particular. We must not throw to the winds the advantages of consistency and uniformity to do justice. Every judge consulting his own experience must be conscious of times when a free exercise of will, directed of set purpose to the furtherance of the common good, determined the form and tendency of a rule which at that moment took its origin in one creative act. 878 Whether novel situations are to be brought within one class of relations or within the other must be determined, as they arise, by considerations of analogy, of convenience, of fitness and of justice. 879 Judge must get his knowledge just as the legislator gets it, from experience and study and reflection; in 877 Artemiou v. Procopiou, (1965) 3 All ER pp.539, Benjamin N. Cardozo, Ibid, pp Benjamin N. Cardozo, Ibid, p

3 brief, from life itself. 880 Judges should decide by considerations of convenience, of utility and of the deeper sentiments of justice. A Judge must balance all his ingredients, his philosophy, his logic, his analogies, his history, his customs, his sense of right, and all the rest, and adding a little here and taking out a little here, must determine, as wisely as he can, which weight shall tip the scales. 881 The Judge should alone apply various principles of interpretation of law to a given facts like a wise pharmacist who from a recipe so general can compound a fitting remedy. 882 There remains a percentage, not large indeed, and yet not so small as to be negligible, where a decision one way or the other, will count for the future, will advance or retard, sometimes much, sometimes little, the development of the law. These are the cases where the certain element in the judicial process finds its opportunity and power. In these cases, they might be decided either way. The reasons plausible and fairly persuasive might be found for one conclusion as for another. Here come into play that balancing of judgment, that testing and sorting of considerations of analogy and logic and utility and fairness. Here it is that judge assumes the function of a law giver. 883 There will be a court of justice which is not also a court of law. There is always some notion of justice independently of legal rules. The total exclusion of judicial discretion by legal principle is impossible in any system. 880 Benjamin N. Cardozo, Ibid, p Benjamin N. Cardozo, Ibid, p Benjamin N. Cardozo, Ibid, p Benjamin N. Cardozo, Ibid, pp

4 Judicial interpretation can be creative, but, of course, within the limits of the most rigorous discipline and in entire harmony with the boundaries of statute law, and previous growth. 884 Everyone of us has in truth an underlying philosophy of life. All our lives, forces based on our instincts are in operation; and the resultant is an outlook on life. There are many situations, however, where the course of judicial action is left to be determined wholly by the judge s individual sense of what is right and just. 885 It must be remembered, however, that the courts have laid down, indeed not rigid rules, but principles which have been found to afford some guidance when it is sought to ascertain the intention of Parliament. 886 These rules do not override the language of a statute where the language is clear; they are only guides to enable the Judges to understand what is inferential here. In each case the Act of the Legislature is all powerful, and when its meaning is unequivocally expressed, the necessity for rules of interpretation disappears and which is its vanishing point. These compendious rules of interpretation can only be regarded as mere guides to the interpretations of statutes and ought not be applied as if they were statutory clauses, enacted with all precision and provisos of the legislation. The court should invoke whichever of the rules produce a result that satisfies its sense of justice in a case before it. 884 Mrs. Nellie Wapshare v. Pierce leslie & Co. Ltd., AIR 1960 Mal pp.410, Roscoe Pound, Ibid, p Cutler v. Wandsworth Stadium Ltd. (1949) 1 ALL ER pp.544, 550 as referred to by Dias, Ibid, p

5 A court invokes whichever of the rules produces a result that satisfies its sense of justice in the case before it. 887 Statutes should be thought of in a continuum, which would make functional considerations an integral part of the whole problem of their application. Such application requires that information should be provided about the context of the provisions. Statutes are now inaugurate new policies and social experiments. It is not possible to give these sympathetic considerations without some appreciation of their background. Some statutes may have no single or readily discoverable policy; yet the rigid exclusion of all extrinsic material does seem to be undesirable, however hard it might be to set limits to the kind of material that should be admitted. On the other hand, one should not overlook the problem confronting judges, not the sobering experience of countries which have admitted such material. A rule of inclusion might well be as hampering as a rule of exclusion, and the matter may be better left, after all, to judicial discretion. It was said that different methods of interpretation should be applied to different types of statutes. However, this does not appear to be workable, for difficulties are bound to arise as to how a particular statute is to be classified and how one should treat a statute of a hybrid character. Classification will help very little, for the heart of the matter rests in the attitude of the judges Willis Statute Interpretation in a Nutshell, (1938) 16 Canadian BR p. 16 as referred to by Dias, Ibid, p Dias, Ibid, pp

6 It assumes that number of possible interpretations the one that appears most to our sense of right and justice for the time being is most likely to give the meaning of the framer of the rule. In truth this is a phenomenon we meet on every hand in the judicial process. The decisive element is received ideals of the end of the law and of what legal precepts should be in consequence; and it is this measuring by authoritative received ideals which gives a reasonable stability and certainty to interpretation. 889 In order to determine the literary meaning of a statute the courts make use of various rules of interpretation. These, however, are rough principles or guides rather than strict rules and are not so much the invention of the law as the application within the context of law of ordinary common sense rules of language. 890 For example to ascertain the ordinary meaning of a word in a statute the court may look at dictionaries or scientific or other technical works in which the words are used. It must also interpret statutory words in the light of definitions provided by the statute itself, by the General Clauses Act, and by any judicial decisions on the statute in question. 891 But the meaning of a word is also affected by its context. Hence the legal maxim noscitur a socis which means that the meaning of a word is to be judged by the company it keeps, and is therefore merely another rule of language. The context may consist of the surrounding section or sections, the whole Act, or indeed the whole are of legislation. Context may even give 889 Roscoe Pound: Jurisprudence, Vol.III, p Salmond, Ibid, p Salmond, Ibid, p

7 the word a meaning which is not to be found in the dictionary. For example several instances are to be found in the reports in which the technical term shall as used in a statute has been considered as if it were may. Since this was the meaning required to give effect to the evident requirement of the legislature. 892 This is a whole science of interpretation better known to judges and Parliamentary draftsmen than to most members of the legislature itself. Some of its rules cannot well be accounted for except on the theory that Parliament generally changes the law for the worse, and that the business of the judges is to keep the mischief of its interference within the narrowest possible bounds. 893 The major function of the judiciary lies in the interpretation of statutes and the application of precedent. In this exercise, a judge is faced with the perennial problems: how to balance the need for stability and certainty, embodied in the principle of stare decisis, with the need for the constructive adaptation of the law to changing social needs; how to balance the certainty aimed at, if not always achieved, by a strict adherence to the letter of the law, with individual justice. The conflict can never be finally resolved. Changing climates of public opinion, fluctuations in the strength of political and social pressures, differences of personality, and sheer limitless variety of individual situations calling for a solution, constantly pose the problem anew. Nor are they vitally different whether the problem at hand is the interpretation of clause in a statute or an application of precedent. 892 Salmond, Ibid, p Sir Frederick Pollock: Essays in Jurisprudence and Ethics, (1882) 85 as referred to by Salmond, Ibid, p

8 A realistic consideration of the legislative process reveals the immense complexities of statutory reform. In such a situation it behaves the court to interpret a mental but comprehensive technical term in accordance with the broader objective of the legislation. 894 It is, however, possible to get nearer to the clarification if not the solution of statutory problems of construction by differentiating between statutes and statutes, by recognizing that a constitution poses problems different from a statute reforming the law on a given subjects. Yet no general theory could or should be a substitute for the discriminating wisdom applied to the solution of a particular problem. The acceptance of theoretical rules, literal or sociological, golden or plain, other than as technical aids can only lead to judicial selfdeception or to mental slavery. It is the privilege and duty of judges and others exercising judicial functions in modern democratic societies to decide a situation unhampered either by the political dictation of a totalitarian government or the construction of technical rules. Yet these rules cannot be entirely discarded for without them we return to the chaos of free or kingly justice. The search for proper rules of statutory interpretation is part of the search for justice which is unending. 895 The rules of construction are not rules in the ordinary sense of having some binding force. They are our servants and not masters. They are aids to construction, presumptions or pointers. Not infrequently one rule points in one direction, another in a different direction. In each case we must look at all relevant circumstances and decide as a matter of 894 W. Friedmann, Ibid, p W. Friedmann, Ibid, p

9 judgment what weight to attach to any particular rule. A word should be given its ordinary meaning unless there is sufficient reason to give it in the particular case a secondary or limited meaning. The task of the judges is to interpret the sections according to the intent of them that made it. 896 Statute ought not to be treated like theorems of Euclid but rather ought to be interpreted on the basis of a clear conception of their purpose. Words and phrases should be construed in the context and within the scheme underlying the text of the statute. 897 Narrow pedantic approach running counter to the constitutional mandate ought to be always avoided. 898 A principle of statutory interpretation is the presumption that an updating construction is to be given to a statutory provision. In interpreting an on going statute it is to be presumed that the legislature intended the act to be applied at any future time in such a way as to give effect to the original intention. In doing so allowance is made for the relevant changes that have occurred in the society since the enactment of the law. It is also a rule of interpretation that a word with more than one meaning must be interpreted to promote the object of the enactment. In short, the interpretation process enables the court to give a meaning to the existing law which approximates law to justice. In probate law the rule is also favored because the testator is typically not around to indicate what interpretation of a will is appropriate. Therefore, it is argued, extrinsic evidence should not be 896 Maunsell v. Olins & another, (1975) 1 All ER pp.16, Tata Engg. & Locomotive Co. Ltd v. State of Bihar, (2000) 5 SCC Githa Hariharan v. Reserve Bank of India, AIR 1999 SC

10 allowed to vary the words used by the testator or their meaning. It can help to provide for consistency in interpretation. It must, however, be recognized that the process of construction of a statute by the various external aids to interpretation, such as the application of any of the principles referred to above, are subject to obvious limitations, in that while it is possible to discover the true and intendment of a provision by the application of these principles, name of these provisions could legitimately entitle a court to do violence to the language of the statute or to give it a meaning that it does not have or to read into the statute that which is not there, for, to do that, would be to transgress the limits of interpretation and digress into the realm of legislation which it is not open to a Court to do. What is outside the statute does not become within it by the application of any of the aforesaid principles merely because it is within the policy of it though outside the mischief of its provisions, for, it is well established that the policies incorporated in the statute or the object which prompted the enactment of it are nevertheless distinct from the provision that ultimately emerged from the legislative anvil and it is the end result with which the Court is basically concerned. The policy of the statute may be an external aid in the process of interpretation but where the provision falls short of the policy, it is not open to the Court to extend the scope of it. The historical evolution method- is a type of interpretation also known as softening of texts. A judge using this method looks only at the text., recognizing that researching the will of the legislature may be futile in the light of societal changes that have occurred since the law was enacted. This method considers social needs to be constantly evolving, and permits a judge freely to adapt the text to the social needs of the time, 389

11 based on research as to what the thought of the legislature would be today. French scholarly writers, whose tradition is to engage in the systematization of legal concepts, have used different classifications to describe various methods of statutory interpretation. Jean Carbonnier, for instance, describes three main methods of statutory interpretation as the exegetic method, the method of social purpose, and the free scientific research method. 899 As legislation covers an increasingly widening sphere of social relationships, its character becomes more and more complex. Together with a flood of statutes of all types there has been a wealth of judicial and academic studies of the problem of their interpretation. The results, however, become increasingly inconclusive. 900 It is not, therefore, surprising that in the pronouncements of judges and writers support can be found for almost any proposition ranging from orthodox adherence to the literal rule, to complete judicial freedom in the interpretation of statutes. The Judge should take into consideration the following points while dealing with the interpretation of a statute: 1. When a text is clear, it should be applied and not interpreted, unless an absurd result would follow. 2. When a text is ambiguous or obscure, courts look for the will of the legislature. For that, a judge first examines the text itself with care, and considers commentaries written about the text. This is not limited to the provisions to be applied but includes the chapter or 899 Jean Carbonier, Droit Civil, 177, 12 th Ed W.Friedmann, Ibid, p

12 the entire law. Often a provision is obscure only if separated from its context. 3. If this study is insufficient, courts often go to discover the legislature s thinking. 4. When a text does not directly provide the solution for a dispute, judges need at least to start from a text to situate the rule that they will design. 5. If the legislative history is confusing, or the law is too old, the judge may look at other considerations. 6. The statute should be interpreted in a manner to carry out the intention of the legislature. 7. The intention is best declared by the words themselves. 8. Even modification or contradiction of the language of the legislature is permissible in order to square with the intention. 9. Even words can be regarded as surplusage. 10. The intention of the legislature must be discovered from the words of the statute. 11. If the words are ambiguous, the policy of the legislature, the scope and object of the statute, and various rules and presumptions of interpretation will show the intention. 12. For a judge to decide the meaning of a statute, they would use the rules of language, these were developed by lawyers over time, these rules are little more than common sense, however they are not always precisely applied. The rules are Ejusdem generic rule, Expressio unius est exclusion alterius rule and Noscitur sociis rule. 13. The Ejusdem Generis rule, means where the words follow a list of specific words, the general words are constructed as being limited to persons or things with the class outlined by the particular words. So in reference to dogs, cats and other animals, the phrase and 391

13 other animals would be limited in their application to a category of domestic type animals and would not extend to wild animals. 14. A canon like noscitur sociis, tells a judge to interpret a word so that it has the same kind of meaning as its neighbours. 15. The meaning of a doubtful word may be ascertained by a reference to the meaning of words associated with it. 901 Today, Judges employ a variety of the methods of interpretations. They sometimes boldly interpret certain texts, to the point of giving them a meaning opposite to the original provision. Sometimes judges interpret a provision literally. They always attempt to maintain harmony between the legislation they apply and changing times and needs. Judges are accustomed to interpret the law and apply it to each separate instance. They take into account reasonable, equitable, moral and social needs more than methods. CONCLUSIONS The task of judicial interpretation is not merely to reiterate. The present state of statutory interpretation suggests that something is amiss with the judicial approach to the whole exercise. The most important advantage of justice according to law is that it insures that the more valuable ultimate interests, social and individual, will not be sacrificed to immediate interests which are more obvious and pressing but of less real weight. English Law provides a number of guides to statutory interpretation, or canons of construction. A difficulty arises with various canons could return conflicting answers; since English Law has not yet 901 Vepa P. Sarathi- Interpretation of Statutes, EBC, 4 th Ed. 2003, p

14 authoritatively established any complete hierarchy among the canons. 902 The absence of a coherent set of rules of interpretation is best seen when judges adopt opposing canons in the same case. 903 It will have become evident that the vagaries of statutory interpretation reflect differences in the spirit of approach rather than in rules. 904 In view of the present day increase in legislative activity, judges are more and more concerned with statutory interpretation. It is not too much to say that this advantage of justice according to law depends upon judges who are independent, trained to adhere to principles and to be governed by legal reason rather than by interest or external pressure, and watched narrowly by a learned profession, trained in the same tradition which has at hand the materials for searching criticism of every decision. 905 There are four checks upon a judge: - (1) A judge, from his very training, is impelled to confirm his action to certain known principles or else to known standards. Professional tradition and habit lead him in every case to seek such principles or standards before acting and to refer his action thereto. (2) Every decision is subject to criticism by a trained profession, to whose opinion the judge, as a member of the profession is keenly sensitive. (3) Every decision and the case on which it was based the claims of the parties, very likely the evidence, and at any rate, findings of 902 Chang v. Governor of Pentonville, (1973) 2 All ER pp. 205, Dias: Jurisprudence, Ibid, p Dias, Ibid, p Roscoe Pound: Jurisprudence, Vol. II, 1959 Ed., pp

15 the facts which must conform to the claims asserted and to the evidence appear in full in public records. In the case of appellate courts, all important decisions and the grounds thereof and reasons thereof are published in the law reports, so that materials for accurate judgment upon judicial decisions are always available and readily accessible. (4) Where a case is decided by a single judge, the decision is subject to review by a bench of judges, independent of the one whose action is to be scrutinized and constrained by no hierarchical organization or esprit de corps to uphold whatever he does. Moreover, a bench of judges sits to hear appeals and the traditional ethics of adjudication require them each to act in person. 906 The statute governs all matters within the letter or the spirit of any of its mandates. In default of an applicable statute, the judge is to pronounce judgment according to the customary law, and in default of a custom according to the rules which he would establish if he were to assume the part of a legislator. He is to draw his inspiration, however, from the solutions consecrated by the doctrine of learned and the jurisprudence of the courts- par la doctrine et la jurisprudence. 907 Statutes are designed to control behavior and like every communication, involve an author, a medium and an audience. 908 Modern statues are drafted by 906 Roscoe Pound: Jurisprudence, Ibid, pp Article 1 of the Swiss Civil Code of 1907, as cited by Benjamin N. Cardozo, Ibid, pp Dickerson The Fundamental of Legal Drafting, p. 19 as referred to by Dias, Ibid, p

16 professional legal draftsmen and intended to be real and understood by professional lawyers. 909 According to the plain meaning rule i.e. grammatical literal meaning rule, the words of a statute, if they appear to be plain and unambiguous, must be applied with a regard to the sense which their authors intended to convey and without recourse to any exterior or interior aids that might help elucidate their meaning. However it is permissible for the court as to extension of statutory provisions to situations which, although they do not fall within the broadest possible meaning of the statutory language, do fall within the general principle or social purpose envisaged by the statute. Statutes were frequently extended to situations not expressly covered by them. Conversely, if the application of a broadly phrased statute to a particular complex of facts lead to a hardship or injustice, a Judge is under no constraint to follow the words of a statute. The intent of statutes is more to be regarded and pursued than the precise letter of them, for oftentimes things which are within the words of statutes, are out of the purview of them, which purview extends no further then the intent of the makers of the Act, and the best way to interpret an Act of Parliament is according to intent rather than according to the words. The true meaning of the statute coincides with whatever the plain meaning of the words conveys to the judicial mind, and the Judge should give full force wherever possible to the literal meaning of the words employed. At the same time, the function of the Judge is to gather the intent of the legislature from the words used even if the consequences of such interpretation may be mischievous. 909 Prestcold (Central) Ltd. v. Minister of Labour, [1969] 1 All ER pp.69, 75 as referred to by Dias, Ibid, p

17 It is believed that law of statutory interpretation is in a state of flux. Conflicting tendencies are at work in the courts which make it difficult to formulate any general statements as to what should be considered prevalent attitude towards statutes. Nevertheless, despite the large amount of uncertainty and confusion presently existing in this branch of law, certain trends and directions of development are noticeable which may warrant a cautious prediction as to what the future of statutory interpretation law in this country is likely to be. In dealing with codified and statutory law, we know from universal experience that the words of an enactment frequently reflect the intentions and aims of its framers incompletely or inaccurately. When legislatures endeavors to express their thoughts in concise yet general terms situations are almost invariably omitted that were within the overall intention of the measure; on the other hand, cases are frequently covered by the statutory language for which the law makers, had they may be aware of the problem, would have provided an exception. 910 It is quite clear that numerous members of a law making body, or even the members of a legislative committee, frequently do not have a common understanding with respect to the range or a purpose of a legislative Act, and they may differ substantially on the scope of applicability of a statutory clause or a provision. A reasonable law maker is aware of the deficiencies inherent in the products of his legislative efforts. He knows that statutory rule can almost never be phrased with such perfection that all cases falling within the legislative policy are included in the textual formulation while all situations not within the purview of the statute remain outside of its linguistic ambit. 910 Edgar Bodenheimer, Jurisprudence: The Philosophy and Method of the Law, Sixth Indian Reprint 2009, Universal Law Publications, p

18 It is evident from the various decisions that the adjudications involving the plain meaning rule have not always follow a consistent line. The golden rule and purpose oriented rule of statutory interpretation are being frequently used by courts in India and abroad. It is preferable, as a general rule, to let the judges find their own solution of an interpretative problem by means of a reasonable construction of the statutory texts. However, in cases where doubt arises as to the meaning and scope of statutory language, the judge should, as a general rule, ascertain the legislative purpose through the use of all aids and resources at their disposal and give effect to the purpose of the legislation. This rule should prevail even though the social conditions obtaining at the time of the adoption of the statute may have changed somewhat since and the mischief or evil at which it was directed may not be present to quit the same degree at the time of the decision involving an interpretation of a statute. Earlier, there was a theory that judges did not legislate at all as it is his duty to declare and interpret the law, but not to make it. Now the new theory asserts that judges produce law just as much as legislatures do; they even make it more decisively and authoritatively then legislatures, since statutes are interpreted by the courts and such interpretation determines the true meaning of the enactment more significantly then its original text. The latter theory of law must be regarded as the most widely accepted view of the judicial process, although disagreement may exist with respect to the volume and scope of judicial law making through interpretation. It is well known that a Judge, in making a decision, will in most cases undertake to safe the existing materials at his command rather than to manufacture something entirely novel. In discharging this function, he will rely on technical legal sources, the general spirit of the 397

19 legal system, certain basic premises or clearly discernable trends of the social and economic order, received ideals of justice and certain moral conception of the society. 911 The judge as the interpreter for the community of its sense of law and order must supply omissions, correct uncertainties, and harmonize results with justice through a method of free decision. Courts are to search for light among the social elements of every kind that are the living force behind the facts they deal with. This power is great and subject, like all power, to abuse. Today, most judges are inclined to say that what was once thought to be the exception is the rule, and what was the rule is the exception. There has been a new generalization which, applied to new particulars, yields results more in harmony with past particulars, and, what is still more important, more consistent with the social welfare. This work of modification is gradual. It goes on inch by inch. Its effects must be measured by decades and even centuries. Thus, measured, they are seen to have behind them the power and the pressure of the moving glacier. 912 The Judge who moulds the law by the method of philosophy may be satisfying an intellectual craving for symmetry of form and substance. But he is doing something more. He is keeping the law true in its response to a deep-seated and imperious sentiment. Only experts perhaps may be able to gauge the quality of his work and appraise its significance. 913 In default of other tests, the method of philosophy must remain the organon of the courts if chance and favour are to be excluded, 911 Edgar Bodenheimer, Jurisprudence: The Philosophy and Method of the Law, Ibid, p Benjamin N. Cardozo, Ibid, p Benjamin N. Cardozo, Ibid, p

20 and the affairs of men are to be governed with the serene and impartial uniformity which is of the essence of the idea of law. 914 History or custom or social utility or some compelling sentiment of justice or sometimes perhaps a semi-initiative apprehension of the pervading spirit of our law must come to the rescue of the anxious judge, and tell him where to go. 915 Sometimes the controlling factor of interpretation may be the personality of the judge, his taste, his training or his bent of mind. 916 When the social needs demand one settlement rather than another, there are times when we must bend symmetry, ignore history and sacrifice custom in the pursuit of other and larger ends. 917 Justice reacted upon logic, sentiment upon reason, by guiding the choice to be made between one logic and another. Reason in its twin reacted upon sentiment by purging it of what is arbitrary, by checking it when it might otherwise have been extravagant, by relating it to method and order and coherence and tradition. 918 The misuse of logic or philosophy begins when its method and its ends are treated as supreme and final. Courts have often been led into error in passing upon the validity of a statute, not from misunderstanding of the law, but from misunderstanding of the facts. These different rules were formulated with reference to statutes of different types and to legislative practice of different types also that they were formulated by courts of different jurisdiction, acting with different judicial aims. A rule formulated in comparatively ancient times in view of 914 Benjamin N. Cardozo, Ibid, pp Benjamin N. Cardozo, Ibid, p Benjamin N. Cardozo, Ibid, p Benjamin N. Cardozo, Ibid, p Benjamin N. Cardozo, Ibid, p

21 the extreme conciseness of ancient statutes, cannot properly be applied to the prolix enactments of modern legislatures; on the other hand, rules applied in days when, Acts were framed in harmony with the lax method of interpretation, contemporaneously prevalent, cannot properly be applied today; and again it is not possible to countenance now the method of interpretation according to equity of the State which courts of Chancery at one time adopted in order to extract out of words meaning which no one else would find there. In deciding whether it is legitimate to adopt the particular rule of interpretation, one must have regard to the kind of statute with reference to which it was formulated, the Court which formulated it and the legislative practice of time. There is otherwise a risk of being misled by conflicting rules. 919 The interpretation of a statute must by no means of necessity remain the same forever. To speak of an exclusively correct interpretation, one which would be the true meaning of the statute from the beginning to the end of its days, is altogether erroneous. The courts are to shape their judgments in accordance with reason and justice. That does not mean that in judging the validity of statutes they are free to substitute their own ideas of reason and justice for those of the men and women whom they serve. Their standard must be an objective one. Not the origin, but the goal, is the main thing. There will always be conflicts of judicial decisions as well as the inevitable divergences in applying any ideals and principles to a given situation. Such tensions are of essence of law in a free society. It is neither possible nor desirable that any theory of judicial interpretation should attempt to resolve such tensions. What it can and must do for the legal practitioner, or the bench, at the bar, to sort out the legal tools and 919 Badshah Mia v. Rajabali, AIR 1946 Cal

22 instruments at their disposal. But there use in any given situation will always depends on the skill and wisdom of the user. Just as the excellent instrument supplied by modern technology are no substitute for the surgeon s skill and judgment, so legal theory of interpretation can only prepare and sort out the instruments of legal decisions. 920 Nothing is stable. Nothing is absolute. All is fluid and changeable. There is an endless becoming. There is an old legend that on one occasion God prayed, and his prayer was Be it my will that my justice be ruled by my mercy. That is a prayer which we all need to utter at times when the demon of formalism tempts the intellect with the lure of scientific order W. Friedmann, Legal Theory, Ibid, p Benjamin N. Cardozo, Ibid, p