Indian Journal of Legal Research & Advancements Volume 1 Issue 3 July 2021

METHODS OF INTERPRETATION BY J. BENJAMIN CARDOZO: IMPLICATIONS ON CRIMINAL IN INDIA.

- Amrita Deshmukh & Amritha J.*

A. Abstract

The system of interpretation has been in force since the first law was written. With the modernization of the world, various aspects of interpretation have changed to keep pace with the changing world. Over the centuries, multiple jurists have propounded methods, theories, tools and even rules for interpretation. One such profound formulation is the interpretation methods by Cardozo J., who has had a lasting effect in the domain of interpretation.

This paper takes up the rhetorical questions of whether the methods formulated by Cardozo J. applies in the current scenario where the mindset of the judges and the society has progressed in light of criminal law. In this regard, the paper shall highlight the impact of these methods on two landmark cases in Indian criminal law. It shall elucidate upon the methods adopted by the Indian . The purpose of the paper a priori shall be to study the interplay between the methods, criminal law, and its impact in the legal world. To this end, the authors shall scrutinize the existing literature to show a positive relationship between the two components. The research aims to contribute an unbiased view of the Indian judiciary suggesting the way forward for interpretation.

B. Keywords

Indian Judiciary, Interpretation of statutes, J. Benjamin Cardozo, Methods, Section 125 of CrPC, Section 377 of IPC.

* The authors are 4th year BBA LLB (Hons.) student from Symbiosis Law School, Pune 1

Indian Journal of Legal Research & Advancements Volume 1 Issue 3 July 2021

1. Introduction

Interpretation is the process through which courts interpret and apply a legislation. is a complex process, if the words do not have plain and common meaning.† If the ambit of the words or phrases is undefined in , plays an important role. Interpretation is a task that relates not just to the interpretation of words and phrases, rather the context and structure of the law along with the purpose of the statute.‡ This provides a coherent explanation of the legislation to the people. Further, the ambit of this exploration is not simply limited to the statute itself, but the interpretation of case laws along with a rationalized approach by the judge, encompasses the art of interpretation. There are various theories linked to the interpretation of statutes such as §, intentionalism** and pragmatism†† that have been used to determine the scope of the legislation. But, along with theories, various jurists have also propounded methods that have paved the way for expounding the ambit of the statute or a case.

For the purposes of this paper, the authors shall rely upon the methods of interpretation propounded by J. Benjamin Cardozo. This paper seeks to examine the application of the methods in light of criminal law statute and cases and the reasoning for the usage of the theories. This study becomes important in order to understand the nature of the theories and whether they still hold true in the current century and the societal setting. This paper delves into the hypothesis of whether propounding such methods has changed the way of interpretation in India and the extent of this change. To this end the paper is a combination of secondary research. Following the introduction of the paper [1], objective and research issue [2], scope of the paper [3], theoretical underpinnings [4], methods: An introduction to Interpretation by Cardozo [5], The Interlinking of the Methods and Criminal Law in India [6], The Way forward for Interpretation [7], followed by the concluding remarks [8].

†Interpretation of Statutes, 65(3), Upenn. L. Rev. American. L. Reg., (1917). ‡A Guide to Reading, Interpreting and Applying Statutes, The Writing Center, Georgetown Uni L. Centre, (2017). §Richard A. Posner, Comment on Professor Gluck‟s “Imperfect Statutes, Imperfect Courts,” 129 Har. L. Rev. F. 11 (2015). **King v. Burwell, 576 U.S. 988 (2015). ††Ibid. 2

Indian Journal of Legal Research & Advancements Volume 1 Issue 3 July 2021

2. Objective And Research Issue Of The Paper

The objective of the paper is to understand the ambit of the methods of interpretation propounded by J. Benjamin Cardozo in the Indian context and its role in the interpretation of two landmark criminal law cases. The research issue of the paper is to identify the methods of interpretation that were applied to analyze the criminal law of India, through two landmark cases.

3. Scope Of The Paper The scope of the paper extends to the exploration of criminal laws in India, in order to understand the methods of interpretation in a practical approach. The limitation of the paper is descriptive and is based on secondary research, so the reliability and trustworthiness of the literature is subject to the availability of the same.

4. Methods: An Introduction To Interpretation By J. Cardozo As stated in the above-mentioned section, the authors shall rely upon the works of J. Benjamin Cardozo. The methods propounded by him have helped in the interpretation of statutes by various members of the judiciary to overcome the hurdle of exudation.‡‡ Since 1921 his works have helped understand various phrases and the extent to which such application is permissible such as “reasonable care”, ambit of “restraint” and the implications of “due process”.§§ The reason for the available explanation of these terms has been due to the contribution through the literature available in J. Benjamin Cardozo‟s book “The Nature of Judicial Process''. In the opinion of the authors', Cardozo‟s work is able to provide a perspective due to the malleability and the adjusting nature of such theories. The approach taken by the judiciary is often a mixture of the methods suggested by him that have shaped the Indian judiciary. The authors shall be analyzing the methods which are the Method of Logic or Philosophy [I]; Method of Tradition [II]; Method of History or “Evolution” [III]; and Method of Sociology [IV].*** The authors shall delve into a detailed analysis of each method in the current section.

‡‡ LexisNexis, Methods of Statutory Interpretation used to Resolve Ambiguities in Legislation (Apr 20, 2021, 10:42PM), https://www.lexisnexis.co.uk/legal/guidance/methods-of-statutory-interpretation-used-to-resolve-ambiguities-in- legislation. §§John C. P. Goldberg, Review: The Life of the Law, 51(5) Stanford L. Rev., 1419, 1475 (1999). ***Edwin W. Patterson, Cardozo‟s -Part II, UPenn L. Rev., (1939). 3

Indian Journal of Legal Research & Advancements Volume 1 Issue 3 July 2021

I. Method Of Logic Or Philosophy

When logical progression becomes the directive force exerted behind a principle, then J. Cardozo called it the method of philosophy. According to J. Cardozo, the method of philosophy is first because it has certain presumptions in its favour.††† He makes it clear that he does not intend to mark it as important by putting it first. Instead, he expresses that this method is often sacrificed to other methods.‡‡‡ He credits the method of philosophy with the primacy that it derives from orderly, natural and logical succession.§§§ J. Cardozo believes that law includes the tenets of logic. He states after analyzing Holmes‟s statement, “the life of law has not been logic; it has been experience”, Holmes did not say that logic is to be ignored when experience is silent. So, in essence, when experience is silent, then logic becomes important.**** According to him, when other tests fail, then favor and chance are to be excluded and if the affairs of men are to be governed with impartial and serene uniformity, which he claims is the idea of law, then the method of philosophy would be the ideal method.††††

J. Cardozo states that since the method of philosophy needs to be employed when there is an absence of a better method, then the need for figuring out a test to identify the comparative fitness of the different methods arises.‡‡‡‡ For this, he opines that such a guideline or test cannot be laid down precisely, rather the decision must be left to the feeling of the artist.§§§§ Hence, according to J. Cardozo, the decision of which method to apply and whether other methods have failed the calling for an application of the method of philosophy, depends on the judge. Relying on Wesley Newcomb Hohfield‟s work, he provides that the method of philosophy has importance, provided it is kept within due limits.*****

The authors infer that in the method of philosophy logic applies differently at different situations and the logic of one principle may prevail over the logic of another principle and because of this, while relying on logic, the focus should be on the practical adaptation of the law and which path of

†††Benjamin N Cardozo, The Nature of Judicial Process, 31 (1921). ‡‡‡id. §§§id. ****id. At 33. ††††id. At 36. ‡‡‡‡id. At 36. §§§§id. At 36. *****id. At 37. 4

Indian Journal of Legal Research & Advancements Volume 1 Issue 3 July 2021 logic leads to justice. Relying on Riggs v. Palmer††††† J. Cardozo states that in this case, the logic was used to determine the principle was considered to be fundamental and represented a larger and deeper social interest.‡‡‡‡‡

As an example of this, a case which happened earlier in 2020 could be quoted where Mr. Deepak Kumar and his wife were denied re-entry into the Jawaharlal Nehru University (JNU) where the former is a student and has been residing for the past 5 years with his wife. The Court held that because they had gone out of the campus for field work before the lockdown does not mean that they shouldn't be allowed to resume their stay there especially considering the pandemic and the opposition of their marriage by their families.§§§§§ Hence, in this case, the Court directed the University to rise above any rules and grant them the permission to stay in the hostel on humanitarian grounds thereby applying its logic to arrive at a solution which paves the way for Justice to be served in that particular situation.

The authors agree with J. Cardozo‟s approach of how logic intersects with law. J. Cardozo ensures that logic finds a place in legal interpretation when other methods do not come to aid. He does not provide a short formula to determine when to use what method hence, complete discretion is exercised by the judges. Thus, his approach of logic combined with his opinion that the decision of which method to be used depends on the judge, ensures that there is a constant backing of rightful logic which a judge would assuredly apply in case he is not able to arrive at a solution using the other methods. The authors are also of the opinion that application of logic is important at all stages even to determine the usage of the best method of interpretation. Only if such a logical approach is taken, will the judges have the requisite flexibility to deviate from any , rule or custom which does not quite apply to the impugned case.

†††††Riggs V. Palmer, 115 N. Y. 506 (1889). ‡‡‡‡‡Cardozo, supra, 42. §§§§§JNU told to allow couple to re-enter hostel, THE HINDU, July 5, 2020; Humanitarian issue: HC asks JNU to let student, wife stay in hostel as khap panchayat opposes marriage, THE NEW INDIAN EXPRESS, July 4, 2020. 5

Indian Journal of Legal Research & Advancements Volume 1 Issue 3 July 2021

II. Method Of Tradition ******

According to J. Cardozo, custom steps in when methods of history and philosophy do not serve the purpose.†††††† He opines that a custom is manifested through the application of old rules than in the creation of new rules.‡‡‡‡‡‡ Further, with respect to custom, a certain standard has to be met, the facts must consult the everyday practices and beliefs, habits of life of men and women.§§§§§§ He asserts that while deciding which method is to be applied, there is a tendency that custom would tend to assert itself as the guiding force while settling a rule which could be applied one way or the other.******* It is important to note that he mentions how a slight extension of custom qualifies it to be identified with customary morality which he notes is the prevailing standard of right conduct††††††† and according to him this makes it the point of contact between the method of tradition and method of custom.‡‡‡‡‡‡‡

Hence, it can be understood that J. Cardozo does not want the method of custom to be applicable during the creation of new rules but wants it to be used just while interpreting the application of established rules. A slight extension of a custom converges with the method of sociology, which he considers to be above all the other methods, shows that he does put a lot of emphasis on how a custom need to guide a judge in the right way while interpreting a case. The authors are of the opinion that J. Cardozo expects that reliance on custom may be placed when judges are sure that such a reliance would not hinder the path towards justice. Hence, custom should not merely act as something which lays down what is right and what is wrong, because J. Cardozo says that a constant „assumption‟ runs throughout the law that the limit to right and wrong is fixed through spontaneous and natural evolutions of habit.§§§§§§§ Hence, according to the authors, if may go by J. Cardozo‟s method of custom, then custom should aid judges and should decide the ambit of legal interpretation only as far as it could help attain the larger goal of social justice.

******Cardozo refers to the directive force of principles exerted along the lines of community custom as the method of Tradition. Hence, while analyzing this method, Cardozo refers to this method as Custom. †††††† Cardozo, supra, 58. ‡‡‡‡‡‡ Cardozo, supra, 62. §§§§§§ Cardozo, supra, 63. ******* Cardozo, supra, 65. ††††††† Cardozo, supra, 63. ‡‡‡‡‡‡‡ Cardozo, supra, 64. §§§§§§§ Cardozo, supra, 63. 6

Indian Journal of Legal Research & Advancements Volume 1 Issue 3 July 2021

III. Method Of History Or Evolution

The method of history or evolution plays an important role to bridge the gap in understanding the application of the method of sociology, both propounded by J. Benjamin Cardozo.******** As time progresses, it is necessary for the law to evolve and engage in the ideologies of the present day. Though the judiciary often evolves the law, rather than revolutionizing it, to ensure there is adaption and acceptance towards the change.†††††††† Further, the judiciary has to determine, whether they wish to evolve the law or give regard to the historical development to ensure a smooth progression.‡‡‡‡‡‡‡‡ If the law remains static, its relatability gets affected, leading to an outdated mechanism of justice delivery.§§§§§§§§ The tendency of philosophy is to run on logic is often curtailed by the method of evolution, which bases changes on historical development.*********

Evolution is a necessary part of progress, to maintain order, certainty and regularity of law. Such evolution is classically seen in the political sphere. Prior to the mid-19th Century, the role of women in the government and voting right was unheard. In 1869, the Wyoming Territory established the concept of women suffrage, which led to the realization of women being equal and their voices also created an impact.††††††††† However, it was not until 1893, when New Zealand gave women voting , setting an example for the world.

This method is closely linked to the concept of social constraints. It works as an integral part of interpretation for the judiciary due to the dynamic nature of law, to remain in consonance to the time period. Further alters the mindset of the individuals in the society as changes trickle through government ideologies, controlling the behavior of the people to a large extent. The Indian legal system has also undergone massive changes, such as in the case of Vishakha v. State of Rajasthan,‡‡‡‡‡‡‡‡‡ wherein the concept of sexual harassment at workplaces against women was accepted and led to the establishment of Vishakha Committee in all workplaces. Furthermore, the

********Historical Society of the New York Courts, Court of Appeals Bios. ††††††††Patterson, supra. ‡‡‡‡‡‡‡‡id. §§§§§§§§J. Benjamin Cardozo, The Nature of Judicial Process, Lecture Series Yale Law School, New Haven, Connecticut. *********Cf. Holmes, The Path of the Law, 10 Harv. L. Rev., 465. †††††††††A Project of the Wyoming State Historical Society, Women‟s Suffrage in the Wyoming , (March 20, 2021 10:20AM), https://www.wyohistory.org/encyclopedia/womens-suffrage-wyoming-constitution. ‡‡‡‡‡‡‡‡‡Vishakha v. State of Rajasthan, AIR 1997 SC 3011 (India). 7

Indian Journal of Legal Research & Advancements Volume 1 Issue 3 July 2021 abolition of child marriage§§§§§§§§§ and the importance of education for all until the age of 14 years,********** is an evolution in the law, trickled through the judicial system. J. Cardozo believed that even though these changes were small but it was important to ensure that the law does not stagnate, and revolutionizes over a period of time.††††††††††

IV. Method Of Sociology

This method of interpretation is based on the concept of social justice. The judges at various forums are appointed in order to ensure that there is a synergy between the people and the bar and necessary for welfare.‡‡‡‡‡‡‡‡‡‡ The judge must ensure that there is no arbitrariness in the interpretation. It is used as a last resort, to fill in technical gaps or when legal justice may be compromised.§§§§§§§§§§ Additionally, constructing his/her own set of rules, in the absence of established principle.*********** But, it does not mean that the judge has extraordinary potential to declare the route of the law, he must be innovative keeping the view of the society.††††††††††† The purpose of this method is to ensure that there is a good public policy along with collective good. The idea of this method has now been incorporated in various third world , to create a sense of social belongingness in the society.‡‡‡‡‡‡‡‡‡‡‡

Various jurists have also opined on this method, such as Bentham stated that the minority is often oppressed and does not have the means to secure justice§§§§§§§§§§§, this method is rather a reflection into the depths of society.************ Further, also elucidated on this method through the theory of social engineering, with an objective to enhance social interest and balance their

§§§§§§§§§The Child Marriage Restraint Act, 1929. **********The Constitution (86th Amendment) Act, 2002 through the insertion of Art. 21A. ††††††††††Richard D. Friedman, Cardozo the [Small r] realist, Mich. Law School Scholarship Repository, 2000. ‡‡‡‡‡‡‡‡‡‡Select Committee on the Constitution, Relations between the Executive, the Judiciary and Parliament, 6th Report of Session, 2006-07. §§§§§§§§§§People v. Williams, I89 N. Y. 131, 81 N. E. 778 (1907); People v. Schweinler Press, 214 N. Y. 395, 108 N. E. 639 (1915). ***********Morton J Horwitz, The Transformation of American Law- 1870-1960, The Crisis of Legal Orthodoxy, OUP. †††††††††††Richard Langone, The Science of Sociological as a Methodology for Legal Analysis, 17(4), Touro L. Rev., (2016). ‡‡‡‡‡‡‡‡‡‡‡Joel K. Goldstein, The Nature of Judicial Process: The Enduring Significance of a Legal Classic, 34(1) Touro L. Rev., (2018). §§§§§§§§§§§Gerald J. Postema, Bentham‟s Early Reflection on Law, Justice and Adjudication, 36 (141[3]). Revue Internationale de Philosophie, (1982). ************John Callaghan, and Distributive Justice: and the Civil Law, 14(5) History of European Ideas, (1992). 8

Indian Journal of Legal Research & Advancements Volume 1 Issue 3 July 2021 needs.†††††††††††† Additionally, the purpose of such an interpretation is to ensure that norms are created for the entire society. The foundational stone for this method was led much later, through the USA, the 14th Amendment after the civil war, led to the establishment of the idea of collective good.‡‡‡‡‡‡‡‡‡‡‡‡

In India, this idea has been incorporated, in the form of fundamental rights and directive principles. This method works with the synergy of liberty, equality and property.§§§§§§§§§§§§ Whenever, an interpretation is attempted it must not be done in isolation, rather the aforementioned concepts must be incorporated, along with the golden rules of interpretation, that affect the outcome of the judgment. Further, the role of judges is not just important but also, state and private institutions must work in consonance with these methods, while interpreting the law application. In the case of Munn v. Illinois,************* the Hon‟ble of USA, pronounced that state institutions will regulate private industries in order to preserve „common good‟ of the society. A truly comprehensive legislation incorporating this idea is that of Private Laws that apply for the collective good of the people, shaping the society. This theory is relevant even today due to the principles of justice, liberty, social good and belongingness.

5. The Interlinking Of The Methods And Criminal Law In India

In the abovementioned section of the paper, the authors‟ have analyzed the methods propounded by J. Benjamin Cardozo of interpretation. In the present section, a parallel shall be drawn between the changes in the criminal law of India, in light of these methods. Criminal law is an ever-changing branch of law that governs the conduct of individuals in a jurisdiction. In the Indian context, it has undergone various changes and led to some major amendments, in the area of rape laws, domestic violence, sexual harassment law etc.††††††††††††† The core principle of the legislation was to promote Rule of Law. However, as the judiciary started interpreting, it compromised the essence of criminal

††††††††††††Limus J. McManaman, Social Engineering: The Legal Philosophy of Roscoe Pound, 33 (1), St. John‟s L. Rev., (1958); Joseph Clarence Verhelle, Roscoe Pound and His Theory of Social Interests, Loyola Uni. Chicago, (1958). ‡‡‡‡‡‡‡‡‡‡‡‡Martha S. Jones, The 14th Amendment Solved One Citizenship Crisis, but it Created a New One, The Washington Post, 9 July 2017. §§§§§§§§§§§§Andrew Williams, Liberty, Equality and Property, Edited by John S. Dryzek, Bonnie Honig, & Anne Phillips, Oxford Handbook Pol. Theory. ************* Munn v. Illinois 94 U.S. 113 (1876). †††††††††††††Indira Sharma, Violence Against Women: Where are the Solutions, 57(2), Indian Journal of Psychiatry 131, 139 (2015). 9

Indian Journal of Legal Research & Advancements Volume 1 Issue 3 July 2021 law. J. Cardozo‟s work was not just limited to rule of law, but rather he also believed in the private right of action.

J. Cardozo, elucidated on criminal law, distinctively and undertook a rather moralistic approach‡‡‡‡‡‡‡‡‡‡‡‡‡. On a bare analysis of the judgements opined by J. Benjamin it is clear that in the criminal law context, it is known that there is a "strong law-and-order stand" and a "lack of sympathy for criminal defendants". The authors shall elucidate upon these changes with the help of two landmark cases. The purpose of choosing criminal law is due to its connectivity with society. The authors shall analyse the judgment in light of the methods propounded by J. Cardozo.

The authors shall analyse the case of NAZ Foundation v. NCT of Delhi§§§§§§§§§§§§§ and Mohd. Ahmad Khan v. Shah Bano Begum and Ors.************** These cases throw light on the interpretation adopted by the judiciary and a combination of various rules and methods of interpretation to perfect the judgement. The judicial interpretation in criminal law is quite complex, there is no straightjacket formula which can be applied in these cases, as the evidence that is presented plays an important role.†††††††††††††† The purpose of the judge is to simplify and understand the meaning of the criminal law.‡‡‡‡‡‡‡‡‡‡‡‡‡‡ It is the duty of the judge to further interpret the meaning and genuineness of the evidence provided. The application of laws to individual cases, cannot be done by resorting to the literal meaning in many cases as the legislation of this law is quite open-ended in some scenarios, leading to multiple interpretations.§§§§§§§§§§§§§§ Rather a judge may do so by relying upon his instincts and deriving meaning through his understanding, interpretation and the law.*************** In the above mentioned cases, interpretation has been undertaken to a large extent due to the reasoning that the sections concerned were never previously contested in courts, heavily.

‡‡‡‡‡‡‡‡‡‡‡‡‡People v. Schmidt, 216 NY 324 (1915). §§§§§§§§§§§§§NAZ Foundation v. NCT of Delhi, 160 Delhi Law Times 277 (India). **************Mohd. Ahmed Khan v. Shah Bano Begum and Ors, 2 SCC 556 (1985) (India). ††††††††††††††Valerie C. Brannon, Statutory Interpretation: Theories, Tools and Trends, Congressional Research Services, April 5, 2018. ‡‡‡‡‡‡‡‡‡‡‡‡‡‡See, William J. Stuntz, The Pathological Politics of Criminal Law, 100 (3), Mich. L. Rev. §§§§§§§§§§§§§§Antony D‟Amato, Can Legislatures Constrain Judicial Interpretation of Statutes, Northwestern Uni. School L. Scholarly Commons, 2010. ***************Timothy J. Capurso, How Judges Judge-Theories on Judicial Decision Making, 29(1), Uni. Baltimore L. Forum, Article 2. 10

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Additionally, the NAZ Foundation Case has an added international angle, as the concept of third gender was accepted in various jurisdictions prior to India. This led to ensure that the judges took a rational decision due to India‟s added position of being a signatory to various international treaties and conventions. Ignorance of which would have led to a not just legal backwardness but rather an issue to the political position of India across the globe.

It delved into the legality of S. 377 of the IPC which dealt with unnatural offences, punishable in India. The authors shall analyze the criminal law aspect of this case. Since the inception of the IPC in India, it has been in the spotlight due to its backward approach of restricting the freedom and choices of a particular individual in the society.††††††††††††††† As society in India progressed the concept of LGBTQ+ community protection became one of importance, as various nations across the world recognized this community. It was alleged by the petitioner that such an offence, refutes human rights and is in fact an abuse of power by public authorities.‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡ Many experts in the field of criminal law were of the opinion that it was in violation of India‟s ratification to the Convention against Torture and Other Cruel Inhuman or Degrading Treatment.§§§§§§§§§§§§§§§ The reasoning for this uproar was that India was following a rather dated law and rather a societal approach was necessary. When analyzing the judicial aspect of the case, it is evident that the courts in India, applied the sociological approach of interpretation along with the of interpretation, to avoid injustice, which would be caused due to the literal rule of interpretation.

This case was analyzed in light of the social constraints that were there in the society, which helps to bridge the gap between the people and the bar. The Delhi High Court, stated that the highest international standards must be followed in order to ensure that there is no discrimination based on the gender on the individual. Further stating that no distinctions shall apply as stated under S. 377. It shall uplift not just the spirits in society but also motivate the judiciary in other countries to decriminalize it. In light of J. Cardozo principle of method of sociology, the emphasis was to ensure that legal justice is not compromised.**************** This principle acted as a gap filler in this case, to interpret gap between sexual acts and the LGBTQ+ community including their basic rights

†††††††††††††††Dr. Monika Ahuja, Changing Contours of Homosexuality in India, 1(2) CASHIHR JHRP, ISSN: 2581-4834. ‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡Civil and Political Rights: The Human Rights Committee, Human Rights, Rev 1, Fact Sheet No. 15. §§§§§§§§§§§§§§§United Nations Human Right Commission, https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=79&Lang=EN . ****************William Baude & Stephen E. Sachs, The Law of Interpretation, Uni. of Chicago L. School, (2017). 11

Indian Journal of Legal Research & Advancements Volume 1 Issue 3 July 2021 enshrined under the constitution. The judges interpreted it in light of the collective good of society providing a pedestal for the minority groups in India, creating a sense of belongingness in society. Keeping in mind the various jurisdictional approaches undertaken by Denmark, Netherlands, USA, Canada etc. this judgment further highlights equality and liberty along with the basic approaches of social engineering. This method of sociology has helped judges understand the need for a community recognition and to balance the needs of every individual in society.

According to the authors, the method of history or evolution can also be applied in analyzing S. 377 of the IPC. In the previous centuries there was a lack of awareness of the existence of the third gender and the acts committed by them and were believed to be a defect of God.†††††††††††††††† The society has undergone massive changes from the time when women were allowed to vote to the current scenario of the LGBTQ+ community.‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡ This judgment should have included the historical aspect in various jurisdictions where changes were accepted, but the Indian society was reluctant to evolve in the early 21st Century.§§§§§§§§§§§§§§§§ Further, this judgement has shown a progression among the Indian judiciary of the country. There are currently a handful countries that do not recognize this notion of a third gender, predominant in the Middle East.***************** If the law is stagnant, it creates a drift between the people and bar, losing interest in relating to the law. After the advent of this judgment, it led to the striking down of S. 377 of IPC, decriminalizing homosexuality. Rather this section was in a time, when individuals were not open to this side of society and shunned them. Further enforcement agencies were also made to believe that this society would tarnish a country. The same aspect has been discussed in Lawrence v. Texas††††††††††††††††† and Bowers v. Hardick‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡, which also discussed the aspect of providing homosexuals with rights equal to heterosexuals. These cases threw light on the social and the historical aspect of the oppression and problems that were faced by them, prior to recognizing their society being normal in

††††††††††††††††Geetanjali Misra, Decriminalising Homosexuality in India, 17(34), International Journal on Sexual and Reproductive Health and Rights, (2009). ‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡ Anjaneya Das, Gay and Transgender Rights in India: Naz Foundation v. Government of NCT of Delhi, SSRN, Mar. 2016. §§§§§§§§§§§§§§§§Twists and turns on the road to triumph: the decriminalization of same-sex sexual conduct in India, Leiden Uni. Blog. *****************Bruce W. Dunne, Homosexuality in the Middle East: An Agenda for Historical Research, 12(3) Arab Studies Quarterly. †††††††††††††††††Lawrence v. Texas, 559 US 538 (2003). ‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡Bowers v. Hardick, 478 US 186 (1986). 12

Indian Journal of Legal Research & Advancements Volume 1 Issue 3 July 2021 existence.§§§§§§§§§§§§§§§§§ In this light it can be seen that the teachings of J. Cardozo under the method of history play an important role to ensure a progressive society.

The authors shall now proceed to analyze the case Mohd. Ahmad Khan v. Shah Bano Begum and Ors.****************** and appreciate how the methods of interpretation put forward by J. Cardozo have interplayed in the judgment. This judgment is considered to be a landmark judgment in the history of India which truly resonated with the secular foundation of our country and the careful interpretation of the case by the judges is to be truly given credit for and is worth analyzing while juxtaposing it alongside the methods of interpretation laid down by J. Benjamin Cardozo. Through this analysis, the authors intend to show how the judgment was in lines with the method of custom and how it also adhered to the method of philosophy as provided by J. Cardozo. As discussed earlier, according to J. Cardozo, even the light extension of custom would bring it near the method of sociology which requires giving social justice and social welfare paramount importance. J. Cardozo did not want a strict interpretation of the method of custom and this is resonated in the Shah Bano judgement which goes beyond rules and regulations established in society and focuses only on what could provide welfare and justice to the affected. However, the additional element which the authors would like to add here is how the method of philosophy also worked impliedly in a manner which would satisfy what J. Benjamin Cardozo wanted the method to stand for.

In the Shah Bano case, the petitioner Shah Bano Begum was married to Mohammed Ahmad Khan and had five children with him before he divorced her to marry another woman. In 1978, he stopped giving her the maintenance which he had promised and as a result Shah Bano filed a criminal complaint under S. 125 of the Criminal Procedure Code, 1973 asking for maintenance. After the Madhya Pradesh High Court ruled in favor of Bano, a petition was filed in the Hon‟ble Supreme Court by Khan, the main contention being that he is liable to maintain his wife only during the Iddat period. The Hon‟ble Supreme Court held that there did not exist any conflict between the provisions laid out under S. 125 of the CrPC and the Muslim Personal Law on the question of the obligation of a Muslim husband to provide maintenance to the lady whom he has divorced who is

§§§§§§§§§§§§§§§§§Martin A. Schwartz, Lawrence v. Texas: The Decisions and Implications for the Future, Touro Law Center Legal Studies Research Paper, 20 Touro Law Rev. 221 (2004). ****************** William, supra, 54. 13

Indian Journal of Legal Research & Advancements Volume 1 Issue 3 July 2021 unable to maintain herself.†††††††††††††††††† Importantly, the court noted that S. 125 goes beyond religion and applies to all citizens irrespective of their religion and hence ruled that Shah Bano is entitled to be maintained by Khan under S. 125 of the CrPC.‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡

In this judgement, the interplay was between, a custom which could influence the mind of the judge in such a way that it could lead to the court in not deviating from it to arrive at another solution and the exercise of the discretion of the judges to shift away from such an approach. If the Court had given more importance to the practice of Iddat as a part of the Muslim Personal Law over the right to maintenance provided under S. 125 of CrPC, then the way of approaching custom as a method of interpretation would not have been like how J. Cardozo wanted it to be and the Court would have allowed custom to act as a guiding force to take such a decision which would not have served the purpose of social welfare. Instead, the Court while determining the right or wrong, observed the custom, analyzed its impacts and without giving it the right to act as a guiding force, analyzed the scenario in an objective sense and made the custom itself the object of scrutiny in a situation where there was a huge tendency for the custom to fill the gap negatively. The fact that this judgment went on to become a landmark judgement shows that the method of custom was indeed used for interpreting the case in such a way that it converged with the method of sociology which was considered to be the greatest of all methods by J. Cardozo which served the ideals of social justice. Hence, just like how J. Cardozo had laid down in the method of custom, that custom shouldn't determine what is right and wrong, the Court here did not blindly base its reasoning on the habits or behavior of people, but instead, analyzed it in the light of relevant facts and circumstances and interpreted it in such a way that the ends of justice is served.

While discussing the method of philosophy, J. Cardozo had mentioned that the decision of which method would apply while interpreting a particular case would depend on the judge and that level of flexibility should be exercised by the judges. The authors had interpreted the method of philosophy as propounded by J. Cardozo to also mean that the aspect of logic should run throughout the time a judge is presiding upon a case. Ultimately through this method also J. Cardozo was trying to infer that logic should be exercised to that extent till there is practical application of law which leads to the welfare of people. Here, in the Shah Bano judgement, the fact that the judges were able to

†††††††††††††††††† William, supra, 54. ‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡ William, supra, 54. 14

Indian Journal of Legal Research & Advancements Volume 1 Issue 3 July 2021 consider the meaning of S.125 of the CrPC, beyond religious boundaries shows how logic was used to interpret the scenario in a such a way that the practicality of a woman who couldn‟t maintain herself receiving maintenance from her husband was placed above any religious claims thereby giving the welfare of all the Muslim women paramount importance. Hence such an interplay of methods wherein both custom and philosophy was complementing each other in such a manner that it ultimately served the purpose of social good is what truly resonates with what J. Cardozo was trying to convey through the four methods of interpretation. Hence, the authors feel that this was exactly the reason why Cardozo did not put all the methods in separate rigid compartments and gave the judges the right to exercise the discretion of choosing which method to be applied when.

6. Way Forward To Interpretation Of Statutes In India

Interpretation is a rather versatile area of law, with a scope that is not well-defined. Rather the mindset of the legislators depends on how the judges perceive a particular aspect of law. Another issue in interpretation, is that the understanding of every individual is different. Often, the bringing up or the development of an individual is reflected at the interpretation of the law or pronouncement of judgement. Even though there are various jurists that have provided methods of interpretation such J. Cardozo and Wittgenstein according to their point of view on the method of philosophy being a gap filler and the most logical method of interpreting. Till day, there has been no particular straightjacket formula to do the same.

The authors suggest that whenever there is a determination of the ambit of the legislation or an ambiguity, the Judges resort to the established principles and methods. However, the determination of this ambiguity is often not possible in many cases, due to the inappropriate gap fillers. However, in the case of important cases or statutes there is a change in the way the interpretation is undertaken and often these principles or methods are not applied at all. This leads to the question of the authenticity of the interpretation that is undertaken, leading to a gap filler.

Secondly, the predictability of the rules of interpretation must be ensured. The authors suggest that a collective method or rule of interpretation must be formulated in order to ensure that the judges do not deviate from the common norms of interpretation. This will ensure transparency in the judiciary. If there is essentially a consensus between the thinking of the judges, it will lead to fewer

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Indian Journal of Legal Research & Advancements Volume 1 Issue 3 July 2021 controversies on the interpretation of the law. It shall ensure an ideal and principled judicial approach.

Lastly, in order to ensure the harmonization of interpretation, in some cases, the quantitative or a qualitative aspect must also be taken into account. Usually, the judges in a court of law interpret the law, usually, the literature available or literary context. However, the authors suggest a new method interpretation, which can be a combination of quantitative method of interpretation and the literary method. The quantitative method would consist of scenarios, in order to ascertain a concrete outcome to the case. This shall culminate into a newer method. The judges will not have to necessarily interpret the statute from scratch but rather rely on some pre-decided scenarios to simplify the task of interpretation.

7. Conclusion

After a comprehensive analysis of the four methods of interpretation as propounded by J. Cardozo, in the light of two landmark judgments of India, the authors have come to the conclusion that the methods put forth by J. Cardozo holds great significance irrespective of the time period, and would continue to guide the legal fraternity for times to come. Further, these methods resonate an adaptability in the functions of interpretation. A combination of these methods and rules of interpretation provides a great tool for interpretation due to the extension of the usage of the methods.

J. Cardozo‟s way of approaching the methods have a deeper connotation of the value of justice to it which is highlighted by the fact that he gave paramount importance to the method of sociology which is based on social welfare and justice. The primary aim of the interpretation methods propounded by J. Cardozo was to ensure that the concept of social good is not compromised. The interpretation of the judgements by the authors shows that as long as the true essence of Cardozo‟s propounding is upheld by every judge while interpreting a case, then such logical solutions which benefit the society could be reached. The authors also conclude that if the spirit of J. Cardozo‟s methods is upheld while interpreting a field of law as complex as the criminal law, then the doors of justice would be open to anyone who approaches the court of law.

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