INDIAN HANDICRAFTS EMPORIUM AND ORS. v. UNION OF INDIA AND ORS.

We, however, do not agree with the contention of Mr. Malhotra that having regard to the fact that appellants have admittedly been found to be in possession of animal article, they have committed an offence and as such they would come within the purview of Section 39(a)(i) of the Act as a result whereof the same could vest in the State.

- The question as to whether an offence under the Act has been committed or not at that stage cannot be determined. Such a determination furthermore cannot be left for adjudication at the hands of the executive authority. As and when a seizure is made and the trader is prosecuted for alleged commission of an offence having regard to sub-section (7) of Section 49-C of the Act; adjudication therefor must be made by a competent court of Jaw having jurisdiction in this behalf. Before a person is convicted a Court has to arrive at the finding that the accused has H

88 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A committed an offence wherefor a full-fledged criminal trial would be necessary. In absence of such criminal trial and offence having been found committed, Section 39 may not have any application. In that view of the matter it is evident that the properties do not stand vested in the Government in terms thereof.

B HOW THE DICHOTOMY SHOULD BE RESOLVED?

The question, however, would remain as to what would happen to the property in question. In our opinion, the answer must be found out by reading all the provisions in their entirety. c It is now well-settled that for the purpose of interpretation of statute the entire statute is to be read in entirety. The purport and object of the Act must be given its full effect.

D Furthermore, in a case of this nature, principles of purposive construction must come into play.

In Chief Justice of A.P. v. L. V.A. Dikshitulu, AIR (1979) SC 193 : [1979] 2 SCC 34, this Court observed: .,,, E "The primary principle of interpretation is that a Constitutional or statutory provision should be construed "according to the intent of they that made it" (Coke). Normally, such intent is gathered from the language of the provision. If the language or the phraseology employed by the legislation is precise and plain and thus by itself proclaims the legislative intent in unequivocal terms, F the same must be given effect to, regardless of the consequences that may follow. But if the words used in the provision are imprecise, protean or evocative or can reasonably bear meanings more than one, the rule of strict grammatical construction ceases to be a sure guide to reach at the real legislative intent. In such G a case, in order to ascertain the true meaning of the terms and phrases employed, it iS legitimate for the Court to go beyond the arid literal confines of the provision and to call in aid other well- recognised rules of construction, such as its legislative history, the basic scheme and framework of the statute as a whole, each portion throwing light, on the rest, the purpose of the legislation,

INDIAN HANDICRAFTS EMPORIUM v. U.O.l. [SINHA, J.] 89

the object sought to be achieved, and the consequences that may flow from the adoption of one in preference to the other possible interpretation.

In Kehar Singh v. State (Delhi Admn.), AIR (1988) SC 1883: (1988) 3 SCC 609, this Court held: B "During the last several years, the 'golden rule' has been given a go-by. We now look for the "intention" of the legislature or the 'purpose' of the statute. First, we examine the words of the statute. If the words are precise and cover the situation on hand, we do not go further. We expound those words in the natural and C ordinary sense of the words. But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of the legislature rational meaning. We then examine every word, every section and every provision. We examine the Act as a whole. We D examine the necessity which gave rise to the Act. We look at the mischiefs which the legislature intended to redress. We look at the whole situation and not just one-to-one relation. We will not consider any provision out of the framework of the statute. We will not view the provisions as abstract principles separated from E the motive force behind. We will consider the provisions in the circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences."

In District Mining Officer v. Tata Iron & Steel Co., JT (2001) 6 SC F 183 : [200I] 7 SCC 358, this Court stated:

"A statute is an edict of the legislature and in construing a statute, it is necessary, to seek the intention of its maker. A statute has to be construed according to the intent of them that make it and the duty of the court is to act upon the true intention of the G legislature. If a statutory provision is open to more than one interpretation, the court has to choose that interpretation which represents the true intention of the legislature. This task very often raises· difficulties because of various reasons, inasmuch as the words used may not be scientific symbols having any precise or H

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A definite meaning and the language may be an imperfect medium to convey one's thought or that the assembly of legislatures consisting of persons of various shades of opinion purport to convey a meaning which may be obscure. It is impossible even for the most imaginative legislature to forestall exhaustively situations and circumstances that may emerge after enacting a B statute where its application may be called for. Nonetheless, the function of the courts is only to expound and not to legislate. Legislation in a modem State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the c legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in future. But, from the very nature of things, it is impossible to anticipate fully in the varied situations arising in future in which the application of the legislation in hand D may be called for and words chosen to communicate such indefinite referents are bound to be in many cases, lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words, the legislative intention E i.e. the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed."

F In State of A.P. v. Mc. Dowell Company, AIR (1996) SC 1627, this Court held:

"An enactment cannot be struck down on the ground that Court thinks it unjustified. The Parliament and the Legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the need of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds viz., (i) unreasonableness, which can more appropriately be called irrationality, (ii) illegality and

INDIAN HANDICRAFTS EMPORIUM v. U.O.I. [SINHA, J.] 91

(iii) procedural impropriety [See Council of Civil Services Union A v. Minister for the Civil Services, (1985) AC 374, which decision has been accepted by this Court as well]. The applicability of .... doctrine of proportionality even in administrative law sphere is yet a debatable issue. [See the opinions of Lords Lowry and Ackner in R. v. Secretary of State for the Home Department Ex-parte B Brind, (1991) AC 696 at 766-67 and 762]. It would be rather odd if an enactment were to be struck down •by applying the said · principle when its applicability even in administrative law sphere is not fully and finally settled."

In High Court of Gujarat and Anr. v. Gujarat Kishan Mazdoor C Panchayat and Ors., [2003] 4 SCC 712 this Court noticed:

"In Reserve Bank of India v. Peerless Co., reported in [1987] I SCC 424, this Court said:-

"Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context, its scheme, the sections clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to any as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation, Statutes. have to be construed so that every word has a place and everything is in its place ... "

In "The Interpretation and Application of Statutes" by Reed Dickersen, the author at page 13 5 has discussed the subject while H

92 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R. .. A dealing with the importance of context of the statute in the following terms:-

" ... The essence of the _language is to reflect, express. and perhaps even effect the conceptual matrix of established ideas and values - that identifies the culture to which it belongs. For this reason, B language has been called 'conceptual map of human experience'."

The purport and object of the Statute is to see that a Tribunal becomes functional and as such the endeavors of the Court would be to see that to achieve the same, an interpretation c of Section 10 of the Act be made in such a manner so that appointment of a President would be possible even at the initial constitution thereof.

Such a construction is permissible by taking recourse to the D doctrine of strained construction, as has been succinctly dealt with by Francis Bennion in his Statutory Interpretation. At Section 304, of the treatise; purposive construction has been described in the following manner:-

E "A purposive construction of an enactment is one which gives effect to the legislative purpose by -

(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or F (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction).

G In DPP v. Schildkamp (1971) AC 1, it was held that severance may be effected even where the 'blue pencil' technique is impracticable.

In Jones v. Wrotham Park Settled Estates, (1980) AC 74 at page H 105, the law is stated in the following terms:-

INDIAN HANDICRAFTS EMPORIUM v. U.0.1. [SINHA, J.] 93

" .. I am not reluctant to adopt a purposive construction where to A apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressly included in it. B Kammins Ballrooms Co. Ltd v. Zenith Investments (Torquay) Ltd, (1971) AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act C to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of j~stice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed."

In Principles of Statutory Interpretation of Justice G.P. Singh, 5th Edition, 1992, it is stated:

"The Supreme Court in Bangalore Water Supply v. A. Rajappa, F AIR (1978) SC 548 approved the rule of construction stated by DENNING, L.J. while dealing with the definition of 'Industry in the Industrial Disputes Act, 1947. The definition is so general and ambiguous that BEG, C.J. said that the situation called for "some judicial heroics to cope with the difficulties raised''. K. IYER, J., G who delivered the leading majority judgment in that case referred with approbation the passage extracted above from the judgment of DENNING,L.J. in Seaford Court Estates Ltd. v. Asher. But in the same continuation he also cited a passagf' from the speech of LORD SIMONDS in the case of Magar & Si Me/ions R.D.C. H

94 SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A v. Newport Corporation, [1951] 2 All ER 839 as ifit also found a part of the judgment of DENNING, L.J. This passage reads: "The duty of the court is to interpret the words that the legislature has used. Those words may be ambiguous, but, even if they are, the power and duty of the Court to travel outside them on a voyage of discovery are strictly limited." As earlier noticed LORD B SIMONDS and other Law Lords in Magar and St. Mellon's case were highly critical of the views of DENNING, L.J. However, as submitted above, the criticism is more because of the unconventional manner in which the rule of construction was stated by him. In this connection it is pertinent to remember that c although a court cannot supply a real casus omissus it is equally clear that it should not so interpret a statute as to create a casus omissus when there is really none."

In Hameedia Hardware Stores v. B. Mohan Lal Sowcar reported in [I 9881 2 sec 513 at 524 the rule of addition of word had been held to be pennissible in the following words:-

"We are of the view that having regard to the pattern in which clause (a) of sub-section (3) of Section 10 of the Act is enacted and also the context, the words 'if the landlord required it for his own use or for the use of any member of his family' which are found in sub-clause (ii) of Section 10(3)(a) of the Act have to be read also into sub-clause (iii) of Section 10(3)(a) of the Act. Sub- clauses (ii) and (iii) both deal with the non-residential buildings. They could have been enacted as one sub-clauses by adding a F conjunction 'and' between the said two sub-clauses, in which event the clause would have read thus : 'in case it is a non- residential building which is used for the purpose of keeping a vehicle or adapted for such use if the landlord required it for his own use or for the use of any member of his family and if he or G any member of his family is not occupying any such building in the city, town or village concerned which is his own; and in case it is any other non-residential building, if the landlord or member of his family is carrying on, a non-residential building in the city, town or village concerned which is his own'. If the two sub- H clauses are not so read, it would lead to an absurd result.

INDIAN HANDICRAFTS EMPORIUM v. U.O.I. [SINHA, J.] 95

.) In Punjab land Development and Reclamation Corporation ltd, A Chandigarh v. Presiding Officer, labour Court, Chandigarh and Ors. reported in (1990) 3 SCC 682, this Court held:

"The court has to interpret a statute and apply it to the facts. Hans Kelsen in his Pure Theory of Law. (p. 355) makes a distinction between interpretation by the science of law or jurisprudence on B the one hand and interpretation by a Jaw-applying organ (especially the court) on the other. According to him "jurisprudential interpretation is purely cognitive ascertainment of the meaning of legal norms. In contradistinction to the interpretation by legal organs, jurisprudential interpretation does not create law". "The c purely cognitive interpretation by jurisprudence is therefore unable to fill alleged gaps in the law. The filling of a so-called gap in the law is a law-creating function that can only be performed by a la\'l-applying organ; and the function of creating law is not performed by jurisprudence interpreting law. Jurisprudential D interpretation can do no more than exhibit all possible meanings of a legal norm. Jurisprudence as cognition of law cannot decide between the possibilities exhibited by it, but must leave the decision to the legal organ who, according to the legal order, is authorised to apply the law". According to the author if law is to E be applied by a legal organ, he must determine the meaning of the norms to be applied : he must 'interpret' those norms (p. 348). Interpretation therefore is an intellectual activity which accompanies the process of law application in its advance from a higher level to a lower level. According to him, the law to be applied is a frame. "There are cases of intended or unintended indefiniteness F ...,_ at the lower level and several possibilities are open to the application of law." The traditional theory believes that the statute, applied to a concrete case, can always supply only one correct decision and that the positive-legal 'correctness' of this decision is based on the statute itself. This theory describes the G interpretive procedure as if it consisted merely in an intellectual act of clarifying or understanding; as if the law-applying organ had to use only his reason but not his will, and as if by a purely intellectual activity, among the various existinz possibilities only one correct choice could be made in accordance with positive law. H

96 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A According to the author : "The legal act applying a legal norm may be performed in such a way that it conforins (a) with the one or the other of the different meanings of the legal norm, (b) with the will of the norm-creating authority that is to be determined somehow, (c) with the expression which the norm-creating authority has chosen, (d) with the one or the other of the contradictory B norms; or (e) the concrete case to which the two contradictory norms refer may be decided under the assumption that the two contradictory norms annul each other. In all these cases,. the law to be applied constitutes only a frame within which several applications are possible, whereby every act is legal that stays c within the frame."

In S. Gopal Reddy v. State ofA ndhra Pradesh reported in [ 1996] 4 SCC 596 this Court observed :

D "It is a well-known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The courts must look to the object which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary." E [See also Mis. DLF Qutab Enclave Complex Edu. Charif. Trust v. State of Haryana & Ors., (2003) 2 SCALE 145t,

The words, which are used in declaring the meaning of other words F may also need interpretation and the legislature may use a word in the same statute in several different senses. In that view of the matter, it would not be correct to contend that the expression as defined in the interpretation clause would necessarily carry the same meaning throughout the statute.

The question came up for consideration before this Court in State of G Maharashtra v. Indian Medical Association and Ors., [2002] I sec 580 wherein this Court speaking through one of us (Khare V.N., CJ!) was concerned with the term "managemenf' occurring in Maharashtra University of Health Sciences Act, 1998. Therein a question arose as to whether the State Government is required to obtain the approval of the Medical H Council of India for establishment of new medical college. "Managemenf'

INDIAN HANDICRAFTS EMPORIUM v. U.0.1. [SINHA, J.) 97 / as contained in Section 2(21) of the Act, which was in the following terms:-

"Section 2. In this Act, unless the context otherwise requires, -

(21) 'Management' means the trustees, or the managing or governing body, by whatever name called, of any trust registered under the Bombay Pubiic Trusts Act, 1950 Born. XXIX of 1950 or any society registered under the Societies Registration Act, 1860 21 of 1800 under the management of which one or more •-< colleges or recognised institutions or other institutions are conducted and admitted to the privileges of the University . c • Provided that, in relation to any college or institution established or maintained by the Central Government or the State Government or a local authority such as a Zita Parishad, municipal council or -. municipal corporation, it means, respectively, the Central Government or the State Government or the concerned local D authority that is the Zila Parishad, municipal council or municipal corporation, as the case may be."

-~ The question which arose for consideration was as to whether the , State Government would come within the purview of the said Act. This E Court answered the said question in the negative holding that the expression 'Management' must be read contextually in the following terms:

"We are, therefore, of the opinion that the defined meaning of the expression 'management' cannot be assigned or attributed to the F word 'management' occurring in Section 64 of the Act. The word 'management' if read in the context of the provisions of Section 64 of the Act, means any one else excepting the State Government applying to a State Government for permission to establish the proposed medical college at proposed location to be decided by / the State Government." G

The doctrine of purposive construction, thus, must be applied in a situation of this nature.

A trader in terms of a statute is prohibited from carrying on trade. H

r 98 SUPREME COURT REPORTS [2003) SUPP. 3 S.C.R.

A He also cannot remain in control over the animal article. The logical consequence where for would be that he must be deprived of the possession thereof. The possession of the animal article including imported ivory must, therefore, be handed over to the competent authority. In a case of this nature where a statute has been enacted in public interest, restriction in the matter of possession of the property must be held to be implicit. If Section 49(7) is not so construed, it cannot be given effect to.

We, therefore, are of the opinion that the appellants have no right to possess the articles in question. Keeping in view of the fact that the ~- ......

provisions of the statute have been held to be intra vires the question of compensating the appellants would not arise as vesting of possession thereof in the State must be inferred by necessary implication. • ARE THE PROVISIONS OF THE AMENDING ACT VIOLATIVE OF THE RIGHT OF PROPERTY OF THE APPELLANTS? D It is true that right to property is a ht•man right as also a constitutional right. But it is not a fundamental right. Each and every claim to property would not be property right.

Control of property by the State short of deprivation would not entail E payment of compensation. (See Davies v. Minister of Land, Agriculture and Water Deve/opment,[1997] I LRC 123 (Zimbabwe Supreme Court) [Interpreting Convention Rights by Hugh Tomlinson and Vina Shukla- page 470)

F As at present advised, we do not intend to deal with the question as regard sov<>reign power of the State vis-a-vis the maxim "salus populi supremo lex" as stated in Charan Lal Sahu v. Union of India, [1990) 1 SCC 613), the same may have to be considered in an appropriate case.

G ARE THE GUIDELINES CONSTITUTIONAL? We, however, are of the :>pinion that the guidelines issued by the Central Government do not meet the requirements of law particularly Section 63 of the Act. Keeping in view the clear and unambiguous provisions contained in Sub-sections (!), (3), (5) and (6) of Section 49- H C, the Central Government could not have directed that the appellants

INDIAN HANDICRAFTS EMPORIUM v. U.0.1. [SINHA, J.] 99 would be entitled to only one piece of article and the rest would be A destroyed. These guidelines, therefore, in our opinion cannot be given effect to and the appellants may pursue their remedies, if any, in terms of Sub-Section (3) of Section 49-C of the Act and their applications filed in this behalf, if any, must be disposed of in terms of the aforementioned law.

CONCLUSION: B

We, therefore, are of the opinion that the respondents would be entitled to take physical possession of the ivory now in seizure. The question, however, would be as to whether the Central Government should destroy the articles including idols of gods and goddesses and household items like sofa sets depicting cultural and religious heritage.

It is stated that similar articles are being displayed in museums as a part of cultural and religious heritage of India.

In view of our findings aforementioned, the appropriate authority would be entitled to continue to keep in possession the said articles. We, however, direct that the same be kept at appropriate museums or at such suitable places where the statutory authorities feel fit and proper but they should not be destroyed. E With the aforementioned directions and observations, these appeals and writ petition are dismissed.

N.J. Appeals/Petition dismissed.