Tracing official bias from Gullapalli to Doctrine of necessity

Palak Gupta, Student of Law, Gujarat National Law University

It is the spirit and not the form of law that keeps justice alive.  ~ Earl Warren.

Natural Justice is an important concept in administrative law. In the words of Megarry, J. ((John v. Rees, (1969) 2 All ER 274: (1970) 1 Ch D 345))it is ‘justice that is simple and elementary, as distinct from justice that is complex, sophisticated and technical.’ It is ethico- legal principle. The origin of this principle is from the case of king v. Chancellor where Justice Fortescue held that first hearing of human history happened in heaven in Garden of Eden. Even God himself gave the opportunity of hearing to Eden. Principles of Natural Justice are the law evolved along with the history of human. P.N. Bhagwati in the case of Maneka Gandhi v. UOI held that principles of Natural Justice are a universal law. It has been termed as fair play in action in case of Re K. (H)(an infant) by Lord Parker.

Principles of Natural Justice are based on two maxims Audi Alteram Partem and Nemo Judex in causasua. Courts are bound to follow these principles while giving judgment. Audi Alteram Partem means hear the other side. The principle of Nemo judex in causasua means that no person should be judge in its own cause.It means that an adjudicator should be disinterested and unbiased. Literally it means that no person should be judge in his own case. It means that justice should not only be done, but should also seem to be done. Bowen J. “ judges like Ceasar’s wife should be above suspicion”.

Bias may arise either due to pecuniary interest or personal interest. However small a pecuniary bias is, it should disqualify the judge from being a member of the tribunal. Personal bias may arise due to blood relations, marital relations, friendship or hostility. For this principal it is necessary to prove that there is a real likelihood of bias.

Official bias is the most impersonal kind of bias. The administration itself is usually a party in many departmental proceedings before bureaucratic authorities. Therefore, an authority may have official bias towards the department to which it is attached, in a dispute between the department and a private party, or may have a policy bias. His bias may be regarding pursuing the policy, which is followed by his department. So when an official acts as an adjudicator he can’t completely shed off his bias, nor can he be said to be totally impartial or neutral. The difficulty, which arises in this situation, is whether the official is to be disqualified from acting as an adjudicator because of policy bias. Exception to official bias is the Doctrine of Necessity.

English law: just a mere interest a minister has in a scheme would not disqualify her on the ground of bias. This was held in Franklin V Minister of town and country planning.

Indian Law- the principal accepted in India is that a mere official or policy may not necessarily be held to disqualify an official from acting as adjudicator. The criteria for him to be disqualified is that there is total non-application of mind on his part or he would have acted according to the directions given to him by his superior authority and has not decided the matter independently.

The present case of Gullapalli Nageshwara Rao is based on the question of inquiry. Whether the element of official bias can be seen when the minister being head of the department gave the hearing and approves the scheme?

Inquiries: Inquiry is to be held by the concerned authority before taking a decision, it may happen that one body makes the inquiry and, on its report, some other authority takes a decision. In such a case, the inquiry body has no power to decide, nor the inquiry report has any binding force by itself. But the inquiry report constitutes an important link in the chain of decision-making process.

A Question which in such case arise is whether an inquiry under a specific statute is administrative or quasi judicial in nature? Some inquiries have been held to be administrative and some quasi-judicial requiring application of the principles of natural justice.


In India, the SC dealt with the question of official bias in this case. The facts of Gullapalli Nageshwara Rao v AP State Road Transport Corporation ((AIR 1959 SC 308,(1959) SCJ 967)), which is known as first Gullapalli case, are as follows: the petitioners were carrying on motor transport business for several years in Krishna district of Andhra Pradesh. The state transport undertaking published a scheme for nationalization of motor transport in the state from the date to be notified by the state government. It invited objections to the scheme. The petitioners, among others filed their objection to the scheme. The secretary of transport department gave a personal hearing to the objections and heard the representations made on behalf of the state transport undertaking. The entire material gathered by him was placed before the Chief Minister who approved the scheme. The approved scheme was subsequently published.

Procedural history

The petitioners assailed the constitutional validity of scheme under article 32 of the constitution before the SC on various grounds. The SC upheld the objections and quashed the order approving the scheme.

Contention by the One of the objections was that, the person who had initiated the scheme had also heard the objections. He was therefore, biased in favor of scheme, and hence could not have given fair hearing.

The court held that the hearing given by secretary clearly offended the principles of Natural Justice and, hence the proceedings involving the hearing were void. Another objection the court upheld was that since the hearings were held before one person and another gave the final decision, the rules of Natural Justice were violated. The majority held that since the ultimate decision taken after hearing both the sides was quasi judicial in nature, the functions of hearing and deciding could not be vested in two different persons.

Subsequent amendments

Under the amend act, a minister was required to decide upon a scheme. In Nageswara Rao v Andhra Pradesh ((AIR 1959 SC 1376, (1960) SCJ 53)), which is known as second Gullapalli case the competency of minister to give the hearing was challenged.

Appeal under article 226 of the constitution: Appellants moved to High Court for writs of certiorari to quash the order passed by the Government confirming the scheme and also to quash the subsequent orders made by the Regional Transport Authority canceling their stage carriage permits. HC rejected the petitions and appellant appealed.


  1. Whether a statute confers power on authority and imposes a duty on it to be a judge of its own cause or decide a dispute, which has official bias, the doctrine of bias is qualified to the extent of the statutory authorization?
  2. Whether the State Government, in the present case, acted in violation of the principles of Natural Justice?
  3. Whether the Chief Minister by his acts and speeches disqualified himself to act for the State Government in deciding the dispute?

Petitioner’s contention

  1. The chief minister who was in charge of transport department was incompetent to hear the objection as the same disability is attached to him, which was attached to the Secretary in charge of the Transport Department on the previous occasion.
  2. The Chief Minister by his acts, such as initiating the scheme, and speeches showed a clear bias in favor of the Undertaking and against the private bus operators and therefore on the basis of the principles of natural justice accepted by this Court, he was precluded from deciding the dispute between the said parties.
  3. Any kind of bias, whether financial or other, for or against any party, or any position that might impute bias, in a judicial authority, must disqualify him as a judge. But when a State Legislature or the Parliament violates the aforesaid principals, such statute, unlike one passed by the English Parliament, has to stand scrutiny in the light of the fundamental rights enshrined in the Constitution.

Respondent’s Contention (Advocate General)

In this case he tried to distinguish between “official bias” of an authority, which is inherent in a statutory duty imposed on it and “personal bias” of the said authority in favor of, or against, one of the parties.

The Chief Minister of the Government cant be disqualified from deciding the dispute merely on the fact that he had supported the policy of nationalization, or even the fact that the Government initiated the said scheme unless it was established that he was guilty of personal bias, and however there was no legal proof establishing the said fact.

Principle accepted by counsel for both the sides

If a member of a judicial body is bias, it may be financial or any other in favor of, or against, any party to a dispute, or is in such a position that there is a likelihood of bias he ought not to take part in the decision or sit on the tribunal and that any direct pecuniary interest, however small, in the subject-matter of inquiry will disqualify a judge, and any other interest if a reasonable suspicion of bias can be ascertained. These principles are applicable to quasi-judicial bodies too.


 The judgment was delivered by Justice Subba Rao.

1. Regarding the first issue court referred two cases The King v Bath compensation and the king v Leicester Justices.

The decision in the first case was that unless the legislature clearly and expressly ordained to the contrary, the principals of Natural Justice can’t be violated. These decisions showed that in England a statutory invasion of the common law objection on the ground of bias is tolerated but invasion has to be strictly in conformity with the statutory exceptions. However in India, the law made by parliament or state legislature should be in concurrence with he fundamental rights, which are declared in part III of the constitution.

2. The question regarding that the chief minister acted in violation of natural justice, court rejected this argument mainly on two grounds:

  1. Since the appellants never raised the question regarding the competence of the Chief Minister to decide the objections on the last occasion and the court on that basis gave judgment. So now it is not open for petitioners at this stage to reopen the closed controversy or take a contrary position. It was also held that the minister was competent to give hearing even though he was the formal head of the transport department.
  2. There are no merits in this contention. It was held that there is a distinction between the position of a Secretary of the Department and the Chief Minister of the State. Under the constitution governor is to act on the advice of ministers headed by Chief Minister.

Under the constitution and the rules framed minister who is in charge of a department is primarily responsible for the disposal of the business pertaining to that department, but the entire ministry is responsible for the advice to the minister. But the position held by the Secretary of a department is different.

Though the Chief Minister made the formal orders, in effect and substance, the enquiry was conducted and personal hearing was given by one of the parties to the dispute itself. So the argument of the counsel that the Chief Minister is part of the department constituted as a statutory Undertaking under the Act cannot be accepted.

3. Whether the Chief Minister by his acts and speeches disqualified himself to act for the State Government in deciding the dispute?

It must be held that it has not been established by the appellants that the Chief Minister made the speeches indicating his closed mind on the subject of nationalization of bus transport in Krishna District. If these newspaper cuttings are excluded from evidence, the factual basis for the appellants’ argument disappears. We, therefore, hold that the Chief Minister was not disqualified to hear the objections against the scheme of nationalization.


In this case, the Supreme Court has clearly voted against the separation between the hearing and the decisional functions. Said the court, “if one person hears and another decides, the personal hearing becomes an empty formality ((I.P. Massey, administrative law (6th ed. 2003).)).” The Supreme Court decision emphasized on the fact that one who decides must hear.

Minority view

Sinha, CJ in his dissenting opinion, gave several reasons for his view that the function discharged by the government was administrative. First, no objective tests have been laid down for the consideration of the government, such terms as efficient, adequate, public interest, were matters of policy and opinion. Second, the idea of hearing prescribed by the statute was not to invite claims by the individual operators, but to collect information having a bearing on soundness and feasibility of the scheme. Third, the government was as much interested in the scheme as the undertaking, which was the creature and the limb of the government, and, therefore, there was no question of the government functioning as an adjudicating authority between the two rival claimants ((MP Jain & SN Jain, principles of administrative law(5th ed. 2007).)).


It has been criticized primarily on the ground of impracticability in the modern administrative process.

A scholar pointed out that it is unrealistic to expect the CM to give the time required for a public hearing, which could adequately explore all facts and policy issues involved and permit all interested parties to appear. On the other hand, if the entire delegation to subordinate official conducting the hearing is given, the importance of the ultimate question may be highly undesirable, perhaps even unthinkable. Thus a government is faced with a dilemma whether the official with final deciding authority must himself conduct the hearing or unduly delegate a power of decision, which should be retained by the Chief Minister, or of seriously interfering with other duties of the Chief Minister.

The Gullapalli decision is not in concurrence with the governmental practice, and is also difficult to follow. The judicial view on this point remains ambiguous.

Subsequent cases in which exception was made to official bias by applying Doctrine of Necessity

In this case SC has made an exception to official bias. Here SC has made an exception by impliedly using doctrine of necessity. It has got expressed approval in subsequent cases from the courts, namely Ashok Kumar Yadav v State of Haryana (([1985] 4 SCC 417)), Tata Cellular v. UOI (([1994] 6 SCC 651)), and Election Commission of India v Dr. Subramanian Swamy (([1996] 4 SCC 104)).

In the case of Ashok Kumar Yadav v. State of Haryana, the State Public Service Commission did the decision about the selection process. This was challenged as according to Sec 3 (11) member of PSC by constitutional requirement has to mandatorily sit in the election process. The issue in this case was if the relative of member comes then is the selection process vitiated? SC held that even though bias is attracted in this case, but if the member doesn’t sit in the selection procedure then it would be unconstitutional as it will be in violation of Section 3(11) of the Act. SC by applying doctrine of necessity expressly declared that it is an exception to official bias. Reasonable suspicion of bias can be excluded if no substitution is possible.

In the case of Tata Cellular v. UOI, there was a tender for giving license for operating cellular mobile in 4 metros. The acceptance of tender made by evaluation committee has been challenged on the ground of bias. Director General of Telecommunication is the technical member of evaluation committee. His presence is required in evaluation of tender. His son who is working in one of the company has applied for license. So the committee has issued license to the son, the bias is thereby alleged. SC held that there is a remote bias. Bias in this case is not accepted. Here doctrine of necessity is applied, as no substitution is possible.

However it got a narrow view in the case of Election Commission of India v. Dr. Subramaniam Swamy. In this case it was held that mere necessity is not sufficient, but absolute necessity is required. Jayalalita was convicted in relation to land cases. Subramaniam who was a political opponent wrote a letter to Governor seeking for disqualification of Jaylalita by virtue of Article 191. Governor can act only on the basis of recommendation of Election Commission, so he referred the matter to EC. Jaylalita moved to HC, which held that EC can’t decide the matter, as there is personal bias because of friendship between EC & Subramaniam. Appeal was filed to Division Bench of HC. It held that single bench has erred in its decision. Appeal was filed to SC. SC agreed that there is chance of personal bias, but held that EC being 3 member body, constituting of CEC and 2 other members. So even if CEC is not present the other 2 members can decide the matter. But if there is division of opinion between the two members then only CEC will be called to decide the matter, only in case of absolute necessity.


This case is noteworthy as the Supreme Court made an exception by rejecting official bias and impliedly applied the doctrine of necessity. The doctrine of necessity got express approval in the case Askoh Kumar Yadav v State of Haryana, 1987. Further, the doctrine of absolute necessity was applied in the case Election Commission of India v.  Dr. Subramaniam Swamy, 1996.

Since Gullapalli I, the SC has continuously diluted the stance, which it has adopted in this case. For instance in Gullapalli II the court didn’t object to the procedure that the minister heard the objections in place of secretary, as he was not a part and parcel of the department, which is concerned in making the policy. According to the court, secretary is a part of department while the minister is only primarily responsible for the disposal of the business pertaining to that department. In subsequent cases the Supreme Court appears to have further relaxed its attitude on matters regarding disqualification, which arises from policy bias, and the court has shown a further liberal approach in this respect from the departmental point of view.

Statutory Interpretation: Acceptability of ‘Theory of Intentionalism’ In Present Legal Scenario

Authors: Proteek Debnath & Shivam Hargunani ((Students of Law, NLU, Odisha)).

There have been several attempts in history to end the use of Intentionalism approach to interpret texts but the concept has still refused to be buried. Today the theory of intentionalism is largely accepted by the legal society. This paper intends to analyze the doctrine of Intentionalism in Indian judicial context and its scope of applicability and provide a desired harmonious approach towards interpretation based on doctrine of Originalism.

The problem arises when the interpreter of the legal text tries to look into the intention of legislators. The authors in the first place have tried to look into the various types of authorities namely, Inspirational, Influential, Practical and Theoretical, and what part does Intentionalism play to determine the legal interpretation of the text, to display that Intentionalism is necessarily implicit, in one form or another, by all of the standard theories of legal authority. Also, the paper will proceed by answering what are linguistic motivations and semantic intentions of the authority and the importance of the same to interpret a legal text.

In the next part of the article the authors will discuss the doctrine of Intentionalism at length to understand the scope of its applicability. The doctrine of Intentionalism in modern world is accepted at a very large scale by the legal society, especially among judges. This hypothesis is still used to interpret a law so as to adjudicate by delivering a better judgment. The authorities who try to interpret the law frequently attempt to find the original intent of the legislators; this in-turn justifies the doctrine of Intentionalism because it is then considered to be legitimate basis for true and fair adjudication.

Intentionalism is unavoidably implicit if an authority tries to legally interpret some text. It is a legal doctrine and is restricted in scope of applicability because such analysis can be done only by reference to the original aim of the legislators.

The Indian judiciary do not exercise strict Intentionalism but follow the theory of Intentionalism, but additionally equal importance has been given to the text of the statute along with intention of the legislators. It is a mixture of Intentionalism and Textualism, which helps the judges to adjudicate a specific situation more aptly. The paper will then analyse the doctrine of Intentionalism in Indian judicial context and its scope of applicability and conclude by providing a harmonious way of interpretation with the help of other prevailing doctrines of law.

Traditional theories of Legal Interpreting Authorities

The authors in this chapter have tried to understand the traditional theories of legal interpreting authorities and what part does intentionalism play in shaping the legal interpretation of the text. Intentionalism is the doctrine that the actual intentions of artists are relevant to the interpretation of the artworks they create – just as actual intentions are relevant to the interpretation of the everyday words and deeds of other people ((Noël Carroll, Interpretation and Intention: The Debate between Hypothetical and Actual Intentionalism, 31 Metaphilosophy 75 (2000).)). The authors have tried to demonstrate that intentionalism is necessarily implied if an authority tries to legally interpret some text. There are four types of standard legal authorities: Inspirational, Influential, Practical and theoretical; so the authors have basically tried to display in this chapter that intentionalism is necessarily implied, in one form or another, by all of the standard theories of legal authority ((Heidi M. Hurd, Interpreting Authorities, in Andrei Marmor, Law and interpretation: Essays in Legal Philosophy, (1st ed. 1995).)).

Inspirational Authority

Inspirational Authority ((‘The Term inspirational authority was coined by Joseph Raz for those people who are our friends, family, mentors etc. and exercise control over us.’, in Joseph Raz, The Morality of Freedom, 32 (1st ed. 1986).))over someone is stated to happen when a person exercises authority over another by asking the other person to do something and the other person has reasons to do it because his friend values doing it for the same reasons ((Joseph Raz, Between authority and Interpretation: On the theory of law and Practical Reason, (1st ed. 2009).)). If A asks B to do something and B does it not because A has asked to do so and values doing the same but because B has his own reasons then A does not have inspirational authority over B or, in other words, B has failed to act on A’s inspirational authority. This type of authority is also attributed as authority attributed to God. In that case, a follower of a certain God could be said to be acting on his God’s inspirational authority if he follows all the teachings of his God for the same reasons as valued by God otherwise not.

The main crux of reasons due to which B’s actions will depend of the directives of A is given by the intentions of A and if the reasons for the directives of A to B are unclear ((Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues, 82 Cal. L. Rev. 50 (1994).))in nature due to which B fails to follow them in the exact manner and for the same intentions then B will be said to be in violation of A’s inspirational authority. Here, plea of defence against the concerned violation cannot be said to be the assertive nature of authority’s words ((P. St. J Langan, Maxwell on The Interpretation of Statutes, (12th ed. 2008).)).

To act under the inspirational authority one must act for only those reasons with which the authority desires one to act ((M. N Rao & Amita Dhanda, N.S Bindra’s Interpretation of Statutes, (10th ed. 2007).)). When legislature makes the law and the citizens follow the law for the same reasons that motivated the lawmaker to make the law ((Id.)), the citizens are said to be under inspirational ((Andrei Marmor, Theories of Statutory Interpretation: The Immorality of Textualism, 38 Loy. L.A. L. Rev. 2063 (2005).))authority of the law. Therefore, to associate inspirational authority with the law would bind the interpreter to the Intentionalist theory ((Cheryl Boudreau, Mathew D. McCubbins & Daniel B. Rodriguez, TheoriesOf Statutory Interpretation: Statutory Interpretation and the Intentional(ist)Stance, 38 Loy. L.A. L. Rev. 2131 (2005).))of legal interpretation as here the person would do what the law asks him to do for the reasons that motivated the lawmaker to bring the law into existence ((Peter C. Schanck, An Essay on the Role of Legislative Histories in Statutory Interpretation, 80 Law. Libr.  J. 391 (1988).)).

Influential Authority

The second type of authority is Influential authority. This type of authority does not issue directives due to which one has to act as per the authority’s motivations rather in this case, the person is said to be under the influential authority if he weighs his own reasons and authority’s reasons, and decides to do the act for he has a new reason to do so. The person in this case can bring in his rationale to decide whether or not he should do the act as said by the authority. This theory of legal authority depends on the acknowledgment that requests are instruments of morality ((A. Raymond Randolph, Dictionaries, Plain Meaning, and Context in Statutory Interpretation, 17 Harv. J. L. & Pub. Pol’y 71 (1994).)).

Such kind of authority serves the purpose of charity in the society. A person in need of money may or may not like you to support him financially so by requesting that person can signal you to act on whatever reason you may feel fit to act to help him. Every request does not give you a new reason to act. The request should come from morally significant person ((Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Geo. L. J. 281 (1989).))for it to be influential authority providing a new reason.

In order to accord influential authority to legislation, one must consider that the will of majority is morally considerable in order to protect the attribution of influential authority to a democratic legislature ((Heidi M. Hurd, Challenging Authority, 100 YALE L. J. 1611 (1991).)). When an influential authority asks a person to do something, the person need not look into the linguistic motivations ((Hurd, Supra note 2.))of the authority because now it does not matter why the authority wants the work to be done and what purpose does it seek to achieve.

To be under the inspirational authority it is necessary to do what the authority semantically intend for the reasons that linguistically motivated the authority. In case of influential authority since there is a stipulation of moral significance, a search for linguistic motivations of authority is not necessary ((G.P Singh, Principles of Statutory Interpretation, (12th ed. 2010).)).

Thus, to associate influential authority with law would bind the interpreter to consider authority’s semantic intentions ((Hurd, Supra note 2.))although the interpreter can forget about the linguistic motivations with which the law was enacted. The moral significance of the authority’s request is left only if semantic intentions are deciphered.

So, the people who associate influential authority with law would bind the interpreter to be intentionalists although very less of intentionalism prevails here as compared to inspirational authority attribution ((Marmor, Supra note 9.)).

Practical Authority

Another form of standard legal authority is Practical Authority. Such kind of authority supersedes all the reasons of acting differently. If A has Practical Authority over B then B has sufficient reason to act in accordance with what A says. Also, B has sufficient reason to not be affected by any other reasoning to act differently. B will be left with one and only action which is to obey what A says; if not then A does not have practical authority over B. The reason for B’s actions will not depend on linguistic motivations of the A’s commands. Possible examples of such a setup could be parent-child relationship, a religious person’s blind faith in God etc ((Larry Alexander, The Gap, 14 Harv. J. L. & Pub. Poly 695 (1991).)).

The significant difference Practical authority and other two authorities is that one’s practical authority over other cannot be justified by moral significance of the authority over the person ((G. P. Singh, Supra note 16.)), unlike other two.

Joseph Raz has defended the association of practical authority to law as he says that if people have practical authority over other and they issue directives make the person (taking orders) to do the right thing more often than him acting on his own accord then the most sensible thing to do would be to substitute those directives in place of one’s own reasons ((Joseph Raz, The Morality of Freedom, 53 (1st ed. 1988).)). Moreover, this way the person acting as per the directives of the practical authority would be act more morally than before as he would just be doing what he is told to do ((Kim Lewison, The Interpretation of Contracts, (4th ed. 2004).)). Also, Andrei Marmor said that if a person’s considers another as a practical authority over him in belief that the authority knows better on the issue at hand, then it would practically be more rational to take authority’s semantic intentions into account when its’ commands require interpretation ((Marmor, Interpretation and Legal Theory, 178 (2nd ed. 2005).)).

This is how Marmor explained intentionalist approach to Practical authority’s actions. As per him arguments, the legislature being better observer of societal needs and situation would exercise informed choice and is likely to issue better directives and individual citizen’s rationale. In situations where the authority’s commands are unclear and confusing ((Peter M. Tiersma, The Ambiguity of Interpretation: Distinguishing Interpretation from Construction, 73 Wash. U. L. Rev. 1095 (1995).)), authority’s intentions and motivations which directed it to issue such directives shall be resorted to.

It is only when the directives of the authority’s commands are unclear and confusing ((Id.))the question of intentionalist ((Boudreau, Supra note 10.))interpretation pops up, because here, the linguistic intentions of authority are truly represented in directives issued by the authority ((William N. Eskridge, Legislation and Statutory Interpretation, (2nd ed., 2006).)). Practical authority prevents a person from taking into account the reasons which account the morality of its actions therefore, there is a paradox generated here.

Intentionalist ((Boudreau, Supra note 10))theory of interpretation shall be employed in situations where practical authority’s command lack a clear cut meaning ((Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues, 82 Cal.L.Rev.50 (1983).)), to understand the semantic intentions and linguistic motivations behind the issuing of such commands by the practical authority.

Theoretical Authority

The next legal authority is Theoretical Authority. Law gives a person grounds to believe that the actions of an authority are backed by reasons but actually those reasons are told to us by morality and not the law ((M. N Rao, Supra note 7.)). A theoretical authority can tell you about the existence of a fact. The theoretical authority is casually related to the primary evidence of existence of the fact. Primarily the evidence is what concerns us. It is just the accurate utterance of that evidence by the theoretical authority makes it authoritative over the person to whom the command is issued ((Harold P. Southerland, Theory and Reality in Statutory Interpretation, 15 St.Thomas L. Rev. 1 (2002).)). For example, when a doctor records the number of your heart beats per minute using his stethoscope, the number so recorded is the evidence and the accurate utterance of that evidence makes the doctor a theoretical authority over the patient. Thus, the words of a theoretical authority are actually observations in which the actual theoretical authority lies.

The linguistic motivations and semantic intentions of the theoretical authority serve as the best evidences to the beliefs of the authority ((G. P. Singh, Supra note 16.))and therefore we should seek them and understand them.

‘Doctrine of Intentionalism’: An Analysis

Intentionalism and scope of its applicability

Intentionalism is a concept arising out of authoritative jurisprudential perspective on the nature and sources of law ((John J Gibbons, Intentionalism, History, and Legitimacy, 140 U. Pa. L. Rev. 613 (1991).)). The theory of intentionalism is a touchstone to judge a particular law, a law should be an expressed will of some authoritative sovereign or else it cannot come under the scope of law’s definition ((Id.)). Thus while interpreting a particular law one should look into the ‘expressed will’ or the intention of the authoritative sovereign, i.e. the legislators. The concept of intentionalism is a subset of jurisprudence of originalism, ((“Originalism is given impetus by the healthy desire to restrain judges from freely reading modern value preferences into the law through judicial interpretation…Originalism is also inspired by a belief that fidelity to the original understanding of the law is one of our most powerful protections from abuses of government.”, Gregory Leyh, Toward a Constitutional Hermeneutics, 32 Am. J. Pol. Sc. 369 (1988).))which seeks the original meaning of a particular law as the basis of present-day adjudication ((Powell H. Jefferson, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985).)).

The theory of intentionalism is largely accepted by the legal society, particularly among judges, although it has criticized by many eminent legal scholars ((Id.)). Despite of many criticisms the theory is still used to interpret a law for the purposes of adjudication as the authorities always searches for legislative intention to deliver better judgments. The theory of intentionalism is followed because of its advantages; i.e. firstly, it answers the essential question about the content of law and helps the interpreter to identify the general meaning of the law and what the law meant to be ((Mark Alfano, Hypothetical Intentionalism in statutory interpretation, 6 US-China L. Rev. 54 (2009).)); secondly, it solves problems of under determination and forces the interpreter to look beyond the legal text to the context of the law and intention of the lawmaker ((Id.)).

The problem arises when the interpreter looks into the intention of legislators; there are a number of questions which goes unanswered. Firstly, if there were a group of legislators whose intention should be relied on, intention of the majority or the intention of the dissenting group ((Hurd, Supra note 2.)). However this question was answered by eminent legal jurist Joseph Raz that the legislative intent of a particular statute should be construed from the intention shared by majority of the legislators at the time of enactment ((Joseph Raz, Authority, Law and Morality, 68 Monist 295 (1985).)). Although Joseph Raz while forwarding the solution presumed that there would be a majority but what if there is no majority among the legislator as such, the question goes unanswered. Secondly, in case of overlapping intentions which intention should be considered as the governing intention? ((Hurd, Supra note 2.))Thirdly, what will happen when the motivation of the legislators while passing a law was same but they all diverge from one another in their semantic intention or when the semantic intention was same but they all want to explore different aspects while passing the final legislation? ((Hurd, Supra note 2.))As legal scholars could not be able to answer these questions in a satisfying manner the problem with interpreting the legislative intent continues. Thus intentionalism alone should not be considered by the authorities for the purpose of proper adjudication.

Intentionalism as a legal doctrine has a very limited scope of application for the obvious reason that interpretation can be done only by reference to the actual intention of the legislators, some interpreters adhere to counterfactual intention test in order to justify their reliance on a particular kind of intention ((Natalie Stoljar, Countrfactuals in Interpretation: The Case against Intentionalism, 20 Adel. L. Rev. 29 (1998).)). However the counterfactual statements have a tinge of vagueness that cannot be ruled out as it can be both true and false ((David Lewis, Counterfactuals, (2nd Ed. 2001).)). Counterfactuals requires to look into legislator’s mental state at the time of drafting or to transport the historic authors into a present situation and see how they would have applied the law in a particular situation, both of which are logically not possible ((Id.)).

The authorities who try to interpret the law often attempt to find the original intent of the legislators and try to justify the doctrine of intentionalism, as they regard this approach as a legitimate basis for proper adjudication ((Robert H. Bork, Original Intent, 26 Judges J. 13 (1987).)). However this attempt to justify intentionalism has to be disregarded as it is not possible for an interpreter to find out the original intent and adjudicate on the basis on such findings. Original intent has to found from the historical records and the interpreter will apply his subjective understanding to such historical record ((Samantha Miller, Interpreting Intent: An analysis of the Doctrine of Originalism, 5 Dartmouth L. J. 226 (2007).)). Thus the original intention of the legislators which is used by the interpreter will be nothing but the interpreter’s subjective understanding. Additionally, the interpreter disregards the fact that it is not possible to know what the legislators would have done to apply the law in a specific modern situation ((Robert Bork, The Constitution, Original Intent and Economic Rights, 23 San Diego L. Rev. 823 (1986).)). If also the interpreter found the original intent, it is not necessary that the same intent behind the law will be apt for the society in the present time. ((Matyas Bodig, Legal Interpretation, Intentionalism, and the Authority of Law, 48 Acta Juridica Hungarica 125 (2007).))Thus interpreting a law on the basis of original intention is not a proper way of interpretation because of its subjective nature.

Intentionalism and Indian Judiciary

The Indian judiciary is also governed by the doctrine of intentionalism as the judges before applying a particular law in a situation always cross-references to the legislative intent behind such law. The Supreme Court of India in the case of ‘Shiv Shakti Co-op. Housing Society, Nagpur v. Swaraj Developers’ ((Shiv Shakti Co-op. Housing Society, Nagpur v. Swaraj Developers, (2003) 6 SCC 659))while referring to statutory interpretation has observed that,

“It is a well-settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the legislature enacting it. The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided ((Id.)).”

In another judgment also the Supreme Court has expressed the same viewpoint regarding supremacy of legislator’s intention. In the case of ‘Padma Sundara Rao v. State of Tamilnadu’ ((Padma Sundara Rao v. State of Tamilnadu, (2002) 3 SCC 533.))the court observed that,

The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself ((Id.)).”

Both of the above observations made by the Supreme Court can be evidence for the Indian judiciary’s view towards interpretation of a statue, which is mostly derive from the intention of the legislators. Thus the interpretation made by the court in certain instances is not free from the criticism. However the law commission in its 183rd report has made clear that all laws should not be interpreted in the lights of intentionalism, only ambiguous laws should be interpreted in that way. Although the report has made the fact clear that the interpreter should look into the literal meaning of the law as it is along with finding out the object and purpose of the law, i.e. legislative intent ((“The intention of legislature assimilates two aspects; one aspect carries the concept of ‘meaning’, i.e., what the word means and another aspect conveys the concept of ‘purpose’ and ‘object’ or the ‘reason’ or ‘spirit’ pervading through the statute. The process of construction, therefore, combines both the literal and purposive approaches. However, necessity of interpretation would arise only where the language of a statutory provision is ambiguous, not clear or where two views are possible or where the provision gives a different meaning defeating the object of the statute. If the language is clear and unambiguous, no need of interpretation would arise.”, Law Commission of India, 183rd Report on A Continuum on the General Clauses Act, 1897 with special reference to the Admissibility and Codification of External Aids to Interpretation of Statutes (Aug. 19,2013), The Supreme Court has affirmed the view of ‘Law Commission of India’ and stated, “If the words of the Statute are clear and unambiguous, it is the plainest duty of the Court to give effect to the natural meaning of the words used in the provision.” ((R.S. Nayak v. A.R. Antulay, AIR 1984 SC 684))In a recent case also the court has followed the same principle and observed, “Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for Court to take upon itself the task of amending or altering the statutory provisions ((Grasim Industries Ltd. v. Collector of Customs, Bombay, (2002) 4 SCC 297)).”

The judiciary in India does not practice strict intentionalism but they also follow the principle of intentionalism, but additionally equal importance has been given to the text of the statute along with intention of the legislators. It is a mixture of intentionalism and textualism, which helps the judges to adjudicate a specific situation more aptly.


The doctrine of intentionalism cannot be ruled out completely as a theory of interpretation but interpreters should not apply the doctrine in a blindfolded manner. It is not necessary to look into the intention of legislator every time while interpreting a law. Context of the situation should also be given importance while applying a law for derivation of the meaning of law ((Miller, Supra note 48.)). The object and the purpose of the law should not be narrowed down while applying a particular law rather it should be broadened. The interpreter must look into the purpose of the statute and any subsequent development and amendment, and then the word of the statute should be interpreted in such a manner so that the purpose of the law is satisfied ((Earl M. Maltz, Statutory Interpretation and Legislative Power: The Case for a Modified Intentionalist Approach, 63 Tul. L. Rev. 1 (1988-1989).)).

A better understanding of the proposition can be described with help of a situation. Suppose there is a law which increases the degree of penalty for drug trafficking crime if the person in question uses a firearm in the process. Mr. A went to drug peddler to buy some drug and he used an empty pistol to buy the drug from the peddler, which was a barter agreement between Mr. A and the peddler. Now, Mr. A is been punished by the court on the basis of the above mentioned law for using firearm. The purpose of the statue was to prevent drug trafficking but the ‘firearm’ clause was used by the legislators was to prevent use of ‘firearm’ as a weapon but not as an instrument of a barter agreement. The above situation it should be an example of strict following of any of the one part, i.e. the legislator’s intent or the interpretation of text of the statute can mould the purpose and object of the legislation. Thus the interpretation of a law should be based on both intention of the legislator and the word of the statute read and applied together on a particular situation for the best possible adjudication.