The semantic technique of updating the living sense of dated legislation is, perfectly legitimated, especially when, in a developing country like ours, the corpus juris is, in some measure a raj hand-over.

To meet the needs of India today, the imperatives of Independence desiderate a creatives role for the Court in interpretation and application, especially when enactments from the imperial mint govern. Words grown with the world. that is the dynamics of semantics.

Read Dickerson[1] has suggested:

“the Courts are at least free from control by original legislatures. Courts, for one, has contended that, consistently with the ascertained meaning of the statute, a court should be able to shake off the dust of the past and plant its feet firmly in the present.

The legislature which passed the statute has adjourned and its members gone home to their constituents or to a long rest from all law making. So why bother about what they intended or what they would have done? Better be prophetic than archaeological, better deal with the future than with the past, better pay a decent respect for a future legislature than stand in awe of one that has folded up its papers and joined its friends at the country club or in the cemetery.

Let the courts deliberate on what the present or future legislature would do after it had read the court’s opinion, after the situation has been explained, after the court has exhibited the whole fabric of the law into which this particular bit of legislation had to be adjusted.”

The democratic assumption that people’s representative expresses the wisdom of the community

Constitutional deference to the Legislature and the democratic assumption that people’s representative expresses the wisdom of the community lead courts into interpretation of statutes Which preserves and sustain the validity of the provision. That is to say, courts must, with intelligent imagination, inform themselves of the values of the Constitution and with functional flexibility, explore the meaning of meaning to adopt that construction which humanely constitutionalizes the statute question.

The luminous guideline on Weems v. United states[2] sets our sight high:

“Legislation, both statutory and constitutional is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that civil had therefore, taken. Time works changes, brings into existence new conditions and purposes. Therefore, a principle, to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments designed to meet passing occasions.

They are, to use the words of Chief Justice Marshall, “designed to approach immortality as nearly as human institutions can approach it”. The future is their care, and provisions for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be.

Under any other rule a constitution would indeed be as easy of applications as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into impotent and lifeless formulas. Rights declared in the words might be lost in reality. And this has been recognised. The meaning and vitality of the Constitution have developed against narrow and restrictive construction.”

The progressive construction

 A note in Harvard Law Review[3] commenting on Weems v. United States urges such a progressive construction:

“The inhibition of the infliction of ‘cruel and unusual punishment’ first appears in the Bill of Rights of 1680, at a time when the humanity of Judge Jeffreys of Bloody Assizes’ fame and of his fellows under the Stuarts, loomed large in the popular mind. … In the eighth Amendment to the Constitution of the United States the same prohibition is found…. (Courts) have held that whatever is now considered cruel and unusual in fact is forbidden by it. Another difference of interpretation intersects these divergent views and separates the Courts which confine the words to the kind or mode of punishment from those who extend their meaning to include as well its degree or severity.

 In a recent case concerning such a provision in the Bill of Rights of the Philippine Islands, which has the same meaning was the Eighth Amendment, the Supreme Court of United States, committing itself to the most liberal interpretation, not only held that the clause was concerned with the degree of punishment, but approved of the extension of its scope to keep pace with The increasing enlightenment of public opinion.

It is, indeed, difficult to believe that a law passed in the twentieth century is aimed solely at abuses which became almost unknown two hundred years before, even though it is an exact trans script of an old Bill. And excessive punishment may be quite as bad as punishment cruel in its very nature. The fear of judicial intermeddling voiced by one of the dissenting judges seems scarcely warranted, for the power to prevent disproportionate punishment is to be exercised only when the punishment shocks public feeling. With thin limitation, the progressive construction of this clause laid down by this case seems desirable.”


The jurisprudence of statutory construction, especially when vigorous break with the past and smooth reconciliation with a radical constitution value-set are the object, uses the art of reading down and reading wide, as part of interpretational engineering. Judges are the mediators between the social tenses.

It is well settled that if certain provisions of law construed in one way will be consistent with the Constitution, and if another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. To put the rule beyond doubt, interstitial legislation through interpretation is a life-process of the law and judges are party to it.


Sunil Batra Etc vs Delhi Administration; 1978 AIR 1675, 1979 SCR (1) 392

[1] The Interpretation and Application of Statutes

[2] 54 L. ed. 801 (Weems v. United States)

[3] Harvard Law Review, Vol. 24 (1910-II) p. 54-55.