|
Maxwell v. Mimamsa*
by Justice B.N. Srikrishna†
Cite as : (2004) 6 SCC (Jour) 49
One of the major functions of a judge is to interpret the law so that it can be effectively applied to a fact situation before him.
Salmond describes interpretation or construction as the process by which courts seek to ascertain the meaning of the legislature through the medium of authoritative forms in which it is expressed1.
According to Gray, the process by which a judge (or indeed any person, lawyer or layman, who has occasion to search for the meaning of a statute) constructs from the words of a statute-book, a meaning which he either believes to be that of the legislature, or which he proposes to attribute to it, is called “interpretation”2.
According to Allen, the operation of a statute is not automatic, and can never be so. Like all legal rules, it has to operate through application — in other words, through the interpretation of the courts3.
The main task of the judge would, therefore, be to discover the true meaning of the words used by the legislature, and its intention in the enactment, since it is presumed to have expressed its will in the words of the enactment.
The English courts developed a number of principles which are of immense help in the construction and interpretation of statutes, which have become hallowed, not by prescription, but by usage over centuries. Maxwell on the Interpretation of Statutes has come to occupy the centrestage in this field symbolising the canons of interpretation evolved by the English courts over several centuries.
The purpose of this paper is to critically examine if an indigenous alternative can be posited for the principles of interpretation of statutes symbolised by Maxwell. One such alternative system of interpretation prevalent in India is the mimamsa system fine-crafted by the Indian thinkers over millennia. Lately, there have been attempts in judicial essays and treatises to project this system as a credible and viable alternative.
Thus, it becomes necessary to examine as to how far the principles of mimamsa could supplant or supplement the canons of construction presently adopted by the Indian courts as compared to the Maxwellian system. Here it is necessary to make a brief survey to highlight the broad thinking of the Indian systems of knowledge.
Three broad schools of Indian philosophy need to be noticed. Each has developed highly refined theories of knowledge transmission which would be relevant to our discussion. The theories developed were interdisciplinary, but with convergence of the principles of vyakarana (grammar), mimamsa (exegesis) and nyaya (logic), each enriching the others by the cross-fertilisation of ideas and concepts. In fact, these three are respectively described as the shastras of pada, vakya and pramana. Pada comprises the theories of grammarians with regard to semantics, etymology, construction of words, their meanings and rules of grammar. Vakya comprises construction of words in syntactical sentences and intricate rules for resolution of conflict or ambiguity in the sentences of a text. Pramana consists of the rules of the Indian system of logic which determine the theoretical basis for validation of any kind of knowledge including knowledge gained through words.
According to Bhartrihari, philosopher and grammarian par excellence, who flourished during the second half of the 5th century BC, there are three levels of speech — vaikhari, madhyama and pashayanti. Vaikhari is the most distinguished level when speech is uttered and heard by the listener. Madhyama is known only to the speaker and arises to the intellect; at this stage speech would not have a temporal construct of a final sentence, but word and meaning are still distinct. Pashayanti is the one where there is a sphota (a flash or explosion) which results in the meaning of the word bursting or shining forth. This is perceived by the mind as pratibha, the immediate supersensuous intuition and one of the terms for description of knowledge as “direct knowledge”. This is then experienced as an impulse to communicate, which Bhartrihari calls kratu. The communication has two aspects — the objective meaning, artha, and the word or sound to be uttered, dhvani. Although these are differentiated in the mind, they are but two sides of the same coin, the sphota. As each letter sound emerges from the speaker, the whole sphota is communicated and the meaning of the sentence flashes in the mind of the listener4.
The nyaya shastra, school of Indian logic, holds that tatparya or the intention of the speaker is instrumental in transmitting the meaning of an uttered sentence to the listener. According to the naiyayikas, every word has two levels of meaning — vachyartha and vyangyartha (also known as abhida and lakshana). Vachyartha is the direct meaning of the word; vyangyartha is its indirect or implied meaning. The naiyayikas postulate that tatparya is the prime cause of shabdabodha, the meaning of a sentence desired to be conveyed by the speaker5. That is why where no meaning can be extracted from a sentence by its syntactical analysis, they postulated that the situation would give rise to the second variety of meaning called “lakshana” or figurative meaning6. Thus, if a sentence like “Gangayam ghoshah” is uttered, literally it means that the village is in Ganga. Obviously, the village cannot be in the waters of the river Ganga. Hence, there is tatparyaanupapatti or incomprehension. Consequently, the sentence is interpreted as being merely figurative in the sense that the village is on the bank of the river, almost touching it.
What exactly is the meaning of the term “tatparya”? While the Bhashaparichheda defines it as the desire of a speaker, the Tarkasangraha gives a more logical definition and states that when there is utterance of a particular word with a desire to convey one’s idea to others, such desire or intention of the speaker is called tatparya7.
The meaning of a word which goes by the technical term 'kCn’kfDr, according to the naiyayikas, is learnt in one of the following eight ways8:
1. By grammar, as the meaning of roots, terminations and declensions.
2. By comparison, as when the meaning of the word “gavaya” is known because of its similarity with a cow.
3. By reference to a lexicon.
4. Express assertion by a credible person (such as “kokila” is also known as “pika”).
5. Usage of elders — when an elder tells another to bring, or to take away a cow or jar, the child notices on each occasion the meaning of the action “to bring” and of the nouns like “jar” and “cow”, which get conveyed to and fixed in its mind.
6. By the context.
7. By explanations or paraphrase.
8. By association with another known word.
Broadly speaking, the Tarkasangraha postulates three criteria on the basis of which the intention of the speaker can be ascertained. They are prakarana (context) visheshana (qualifier) and desha (space). For example, the word lSU/ko in Sanskrit means “horse” and also “salt”. If the occasion is one of going for a battle, then the sentence lSU/koeku; (“bring the saindhava”), means “bring the horse”; but when uttered during a meal, it would obviously refer to salt. Similarly, the word }kja (door), when uttered by a speaker is ambiguous by itself for it is not known as to what is to be done with reference to the door. If it is summer, and the room is hot, the intention of the speaker can be gathered as a request to open the door to allow in air; when there is biting cold, the intention would be a request to shut the door. Dinakara says that when a particular sentence is uttered in order to convey a particular intention, the knowledge of such intention of the speaker is the cause of verbal comprehension9.
After discussing various theories as to resolution of ambiguousness in the usage of words and sentences, Dinakara postulates his final conclusion by saying that, if there is a doubt or confusion as to the intention of the speaker, or if there is the ascertainment of that which is not intended by the speaker, the verbal comprehension from the sentence is not at all possible. Hence, according to him, the knowledge of intention has to be taken as the cause of shabdabodha or verbal comprehension10.
Bhartrihari in his Vakyapadiya postulates a few more criteria for determining the tatparya of a sentence. According to him, association, contradiction, context, connotation, proximity of other words, place, time and intonation are also indicia on the basis of which the tatparya of the speaker is ascertained11.
If a speaker of a sentence is present before us, and we are unable to grasp his tatparya, it is possible to ask him as to what exactly he means by his sentence. If, however, this process of ascertainment of the true intention is not possible, then an alternative means of ascertainment of the tatparya has to be devised. This was the situation faced by mimamsakas who were concerned with the interpretation of the sentences in the shruti (Vedas). The shruti, according to them, was eternal and had no known origin or originator. Hence, there was no way of ascertainment of the meaning of the sentences in the shruti by interlocution. This led them to construct hyperfine doctrines for ascertainment of the meaning of the sentences used in the shruti. This also led them to an elaborate process of reconciliation of conflicts and resolution of doubts arising from apparent inconsistencies or contradictions in the shruti texts.
In course of time, the principles of interpretation of shrutivakyas evolved by the mimamsakas became formalised. Their formal expression appears in the aphorisms or sutras of Jaimini on which an explanatory work (bhashya) was written by Shabaraswami. Further subcommentaries like the Shlokavartika, Tantravartika and Tuptika of Kumarilbhatta followed by other treatises by mimamsakas like Prabhakara, Parthasarathi Mishra, Sayanacharya and others have built up this elaborate system. Thus developed an expert system of knowledge which came to be recognised as one of the six schools of Indian philosophy by the name of purvamimamsa.
The mimamsakas were basically concerned with the resolution of conflicts, ambiguities and apparent contradictions noticed in shrutivakyas. This they considered necessary for a correct exegesis of the shruti so that the rituals prescribed therein could be accurately performed, leading to the achievement of merit. Although, these rules were basically intended to apply to shrutivakyas dealing with religious injunctions, subsequently, they came to be applied for resolution of apparent contradiction, conflict or ambiguity in textual sentences in smritis, which were applicable both in the sphere of religion as well as secular legal relationships.
Prior to the codification of Hindu law in 1955-56, different aspects of the personal law of Hindus such as marriage, adoption, testamentary and intestate succession and guardianship were determined by detailed and intricate rules found in a number of smriti texts of Yagnyavalkya, Prashara, Manu, Haritha and so on. Several scholars well versed in the mimamsa rules brought to bear the method of interpretation followed by mimamsakas to reconcile, harmonise and interpret the conflicting or ambiguous statements contained in different smritis or in the same smriti. Foremost amongst them are Vijnaneshwara and Jimutavahana.
The successful application of mimamsa rules to the conflicting smriti texts led the British courts in India to apply them in adjudication of legal disputes pertaining to the personal law applicable to Hindus. After the codification of most of the personal law of Hindus, recourse to the mimamsa principles has fallen into desuetude. There have been some attempts to revive the mimamsa principles of interpretation and apply them to real time legal disputes — not necessarily based on shastraic Hindu law — in recent times. A critical appraisal of such attempts reflected in some judgments is called for.
U.P. Bhoodan Yagna Samiti, U.P. v. Braj Kishore12 is one such instance. Section 14 of the U.P. Bhoodan Yagna Act, 1952, as it stood in the year 1968, provided for allotment of land to “bhumihin kissan” (landless agriculturists) and reads as under:
“14. Grant of land to landless persons.—The Committee or such other authority or person, as the Committee may, with the approval of the State Government, specify either generally or in respect of any area, may, in the manner prescribed, grant lands which have vested in it to the landless persons, and the grantee of the land shall—
(i)-(ii) * * *”
Certain persons, who were rich traders in Lucknow city, applied to the Government under Section 14 on the ground that they were landless persons and land was allotted to them. This came to be cancelled by the Additional Collector on a complaint. The allottees challenged the action of the Collector before the Allahabad High Court and contended that the intendment of Section 14 was to grant lands vested in the State Government to the “landless persons”; that they were landless persons, because they did not have any agricultural land in the villages, and, therefore, they were entitled to the land. By referring to the Statement of Objects and Reasons and applying the well-known Heydon’s rule, the Supreme Court held that the words “landless persons” in the Act can only be taken to mean “landless agricultural labourers”. Inasmuch as the judgment applies Heydon’s rule by ascertaining the mischief prevalent before the statute was enacted, which was sought to be avoided by the statute, and inasmuch as reference is made to the other sections of the Act and to the Statement of Objects and Reasons, the Supreme Court was applying the well-known Maxwellian principles of interpretation of statutes. However, in para 12 of the judgment, the Supreme Court suddenly refers to the well-known shloka
mi(ekssilagkjkoH;klkssiwoZrk Qye~ A
vFkZoknksiiRrh p fyaxa rkRi;Zfu.kZ;s AA
“““Prologue, epilogue, repetition, novelty, utility, praise and deduction are the indices to determine the tatparya.”
Then, in the next sentence (vide para 14), the Court says: “This exactly is the principle which deserves to be considered.”
A careful reading of the judgment does not indicate how the Supreme Court has applied the cited principles for determination of tatparya. Was it being applied to the entire statute? It could not be, because the entire statute was not ambiguous. The subject of discussion was the phrase “landless persons” used in Section 14 of the Act. So, what was the upakrama (prologue) or upasamhara (epilogue) in the context? Where was abhayasa (repetition), apurvata (novelty), phalam (result), arthavada (praise) or upapatti (logical deduction)? In the statute or in the phrase in question? A reading of the judgment does not throw light on these questions. Nor does it show that any of these principles were employed with reference to the phrase to be construed. Apart from a sidewind and sudden reference to the shloka, it is not possible to discern any discursive exercise as to its application. The attempt, I must say with great respect, however laudable, leaves one no wiser.
In K.L. Sarkar: Mimamsa Rules of Interpretation13 in Part III of the book, there is reference to some judgments in which the mimamsa rules of interpretation illustrated in the book are stated to have been successfully applied.
The judgment of the Full Bench of the Allahabad High Court in Beni Prasad v. Hardai Bibi14 is a classic example of how the English judges successfully applied the mimamsa rules in resolution of a dispute with regard to adoption under the uncodified Hindu law. A reading of the judgment suggests that the learned Chief Justice John Edge, despite his complete reliance on English translations of several authorities, correctly abstracted the principle evolved in Jaimini’s Mimamsasutra (1-30) discussed under the topical title gsrqefUuxnkf/kdj.ke~ (1/2/26-30).
Under this topic, after debating the pros and cons, Jaimini arrives at the conclusion that where the sentence of the shruti gives a reason for the injunction, the entire sentence must be considered not as an obligatory injunction (vidhi), but only as praise or arthavada. In the purvamimamsa tradition it is only the injunctive part that is authoritative. Other sentences which are merely descriptive or eulogistic are considered relevant only as subordinate to the injunctive shrutivakyas. An arthavada is not independently authoritative, but derives its authority only as supporting a vidhi15. That is why mimamsakas are astute to assign a secondary authority to such vakyas by discovering a vidhivakya and by subordinating the laudatory sentence or arthavada to the vidhivakya on the basis of ekavakyata (subordination)16.
Jaimini exemplifies the principle of hetumannigada by reference to the vakya from Taittireeya Brahmana “he performs the sacrifice by a winnowing basket; it is by it that anna (food) is made”17. A doubt arises as to whether the sentence should be treated as an obligatory injunction or as a mere eulogy or arthavada. This sentence, according to Jaimini, is not to be interpreted as an injunction, but as praise of the shurpa. Jaimini concludes that where a Brahmanavakya contains a reason for an injunction, it is to be treated merely as a praise (arthavada) and not as an obligatory injunction.
The Full Bench of the Allahabad High Court applied this principle in resolving the doubt with regard to Vashishtha’s text pertaining to adoption. The relevant part of the smriti text (as quoted in Colebrooke, p. 387) said:
“but let no man give or accept an only son, since he must remain to raise up a progeny ‘for the obsequies of ancestors’ ”.
Hence, it was held that the text was not injunctory and that the adoption of an only son was not null and void under the Hindu law as it existed then.
In the judgment of the Bombay High Court in Narayan Pundlik Valanju v. Laxman Daji Sirsekar18 the Court was concerned with the question as to whether certain property which was acquired by a woman by prostitution could be inherited by her sister or whether the property must go by escheat to the Crown. The Court noticed that there was no express smriti text relating to the succession to the estate of a prostitute. The Court applied the principle of atidesha from Jaimini’s Mimamsasutras (Chapters 7 and 8) and held that in order to determine the right of a sister to succeed to the property of the prostitute, the texts relating to her right to succeed to sapratibandha daya of a male may be considered as applicable by analogy. Thus, it was held that she would be liable to succeed, if the female prostitute is her nearest sapinda. The Court came to the conclusion that sapindata relationship lies in the connection through the particles of the same body in view of Mitakshara’s definition19. Consequently, the doctrine of escheat was held not applicable as the sister was entitled to succeed to the property of the deceased prostitute.
Similarly, the principle of atidesha was applied in Subramania Ayyar v. Rathnavelu Chetty20. Relying on the principle of atidesha in Jaimini (Adhyayas 7 and 8), it was held that, though there was no text in the smritis expressing the right of a shudra to succeed to the property of a concubine’s son with no brothers and other heirs, such a right could be founded on analogy and atidesha.
As far as application of the mimamsa rules to the resolution of legal disputes turning upon the interpretation of smritis is concerned, there would appear to be lesser difficulty for more than one reason. First, a smriti is accepted as pramana as it is supposedly based upon recollection of shruti injunctions, according to the tenets of mimamsa. Secondly, the writers of the smritis were themselves well versed with the pada, vakya and pramana shastras. Nonetheless, there were some conflicting opinions rendered by smritikaras, possibly enhanced by subsequent commentaries. In such circumstances, resolution of doubts by recourse to principles of mimamsa appeared to be not only legitimate, but entirely desirable, despite the candid admission by some of the English judges that they were handicapped by lack of knowledge of Sanskrit language.
How do we apply these principles to words, not of a shruti or smriti, but of secular origin found in legislative enactments? While principles which flow from common sense and worldly wisdom may be applied — regardless of whether they are recognised by mimamsa — there is considerable difficulty in application of the technical rules of mimamsa to current statutory interpretation for several reasons.
Some judgments of the Allahabad High Court have attempted to use the rules of mimamsa for resolution of disputes in situations which did not concern the shastraic Hindu law. In my respectful view, the results have been unsatisfactory and somewhat confounding as the following discussion of such cases would show.
Sardar Mohammad Ansar Khan v. State of U.P.21
The petitioner and the respondent in this case were all appointed as clerks in a college. The question was one of determining the inter se seniority. Though the petitioners relied upon the U.P. Directorate of Education Ministerial Service Rules, 1983, the learned Judge came to the conclusion that the said Rules had no application as they applied only to employees of the Directorate of Education and only to teachers. Rule 3(1)(b) of the U.P. Intermediate Education Rules states that if two or more teachers are appointed on the same date, their inter se seniority shall be fixed on the basis of age. Despite the finding that the said rules had no application to non-teachers, the learned Judge claimed to use the atidesha principle of mimamsa and applied this rule to a non-teacher. The reasoning of the learned Judge is that, since there was no express rule as to how the seniority of nonteaching employees in educational institutions appointed on the same day was to be reckoned, the Court could justifiably use the atidesha principle to apply the rule which was framed in respect of teachers. Assuming that it has not been set aside in appeal, the judgment is open to several objections.
In the first place, the word atidesha only means extrapolation. This principle has been used by Jaimini in Adhyayas 7 and 8 of his sutras. To consider its true purport it is necessary to explain two technical terms, prakriti and vikriti used by him. The shruti lays down a model sacrifice called prakriti. Let us assume that a model sacrifice had steps 1-50, which had to be performed as prescribed in the shruti. Another sacrifice, wherein only some of the steps were similar, would be called vikriti, wherein, say the steps 40-50, were different. In such a situation, Jaimini advocates the extrapolation of the required steps prescribed in the prakriti into the vikriti. Thus, the basis of atidesha is that the vikriti is to be modelled upon the prakriti, but with stated differences. In such a situation, where only some of the steps of the vikriti are delineated in shruti, the principle of atidesha would apply and rest of the steps could be extrapolated from the prakriti and read into the vikriti.
In the situation arising before the Allahabad High Court, which was the equivalent of the prakriti and which was the equivalent of the vikriti? The legislation neither defined them nor gave any indication. In the absence of a well-defined prakriti and a vikriti, application of atidesha would be wholly arbitrary and based upon the fancy or the ipse dixit of the court.
Udai Shankar Singh v. Branch Manager, LIC, Bharwari22
The petitioner had taken two insurance policies from LIC. While travelling on a two-wheeler, he met with an accident with a truck due to which his right leg had to be amputated above the knee and his right hand was also paralysed. LIC repudiated its liability on the ground that the disability sustained by the petitioner was not a “permanent disability” as defined in the policy and, therefore, the petitioner was not entitled to the payment for permanent disability. The definition of “permanent disability” in para 10 of the policy of insurance inter alia declared:
“... or in the amputation of both hands at or above the wrist, or in the amputation of both feet at or above ankles, or in the amputation of one hand at or above the wrist and one foot at or above the ankle shall also be deemed to constitute such disability”.
Thus, while an accidental injury resulting in amputation of one hand and one foot was contractually defined to be a permanent disability, since the victim had suffered only the amputation of one leg and paralysis of the hand, it did not strictly fall within the definition of “permanent disability” in para 10 of the policy. After referring to several judgments on purposive construction, the Court referred to Nageshabhatta’s Parama Laghu Manjusha and the concept of lakshana discussed therein. It also referred to Kavya Prakasha of Mammata and Sahitya Darpana by Vishwanatha as well as the Shlokavartika of Kumarilbhatta and deduced that in the present case “amputation of hand” should be construed to mean “the hand becoming useless” (whether by amputation, paralysis or otherwise) and that amputation of the hand was only illustrative, and not exhaustive, of the intent. On this reasoning, a writ of mandamus was issued to LIC to pay the claim of the petitioner.
What was the principle on which the claim was allowed despite the contraindication in the contract of insurance evidenced by the terms of the policy? In the first place, it was not a situation of lakshana. The words used were explicit and clear and there was no question of tatparyanupapatti so as to give rise to lakshana. Lakshana or figurative meaning may be admirable as a figure of speech in literature, but would hardly be acceptable in a judgment deciding the rights and liabilities of parties. The judgment also refers to the oft-quoted sentence “kakebhyo dadhi rakshyataam” which literally means “protect the curd from crows”, but is held to be indicative of the intent that the protection must be from all animals and insects which could harm or spoil the curd. (Incidentally, this would not be an instance of lakshana but of upalakshana.) This principle is no different from the principle of ejusdem generis. It would, however, be dangerous to apply the principle of ejusdem generis for interpretation of a contractual term. Indubitably, an insurance policy is a contract between two parties. If the doctrine of upalakshana were to apply to para 10 of the insurance policy, there could be myriad cases where the insurer would become liable for compensation, though the parties had been careful to limit the liability by defining the term “permanent disability” in para 10 of the policy. Even if the judgment be right on equity, I am afraid that resting it on the mimamsa principle quoted therein does not appear to be justified, with great respect.
Amit Plastic Industry, Ghaziabad v. Divisional Level Committee, Meerut23
The petitioner had sought a writ of mandamus against the respondents for issue of an eligibility certificate under Section 4-A of the U.P. Sales Tax Act and for a further direction restraining the respondents from passing assessment orders for the period covered by the eligibility certificate. Section 4-A of the Act gave certain benefits to new units set up during the period ending with 31-3-1990. The relevant part of the Explanation to Section 4-A reads as under:
“Explanation.—For the purposes of this section,—
(1) ‘new unit’ during the period ending with 31-3-1990 means an industrial undertaking set up by the dealer on or after 1-10-1982 but not later than 31-3-1990—
* * *
(d) using machinery, accessories or components not already used, or acquired for use, in any other factory or workshop in India.”
The Court came to the conclusion that the writ petition was to be allowed for the reason that the condition in clause (d) could not be interpreted in a narrow or strict manner, as the object of Section 4-A was to give a fillip to development of industries. Hence, a strict literal definition would defeat the said object. Consequently, the Court opined:
“In our opinion clause (1)(d) of the Explanation of Section 4-A of the U.P. Sales Tax Act should not be interpreted literally for that would subvert the very intention of Section 4-A viz., to encourage the industrialisation of the State. In our opinion sub-clause (d) should be interpreted to mean that to get the benefit of exemption a substantial part of the factory machinery should not have already been used in any other factory or workshop.”
While this reasoning may be justified, it is difficult to appreciate the strained application of gunapradhana maxim of mimamsa or the pejorative comment:
“... It is deeply regrettable that in our courts of law, lawyers quote Maxwell and Craies but nobody refers to the mimamsa principles of interpretation. Today our so-called educated people are largely ignorant about the great intellectual achievements of our ancestors and the intellectual treasury they have bequeathed us.”
Examples of gunapradhana maxim given from Jaimini sutras 3-3-924, 63-3925 and 3-1-326 and their application to the facts of the case appear to be somewhat strained and far-fetched. A reading of the judgment does not indicate to an ordinary reader the true basis on which the principle rests and the manner of its application to the fact situation to resolve the legal dispute.
The basic tenet of the mimamsakas is that the commands expressed in the Vedas (shrutivakya) are a self-validating source of knowledge (pramana). However, they distinguish between injunctory statements and non-injunctory statements in the shruti. They firmly hold that the entire purpose of the shruti is to teach such action as is otherwise incapable of being learnt from other valid sources of knowledge. Hence, they deny authority to statements which do not fulfil this purpose27. Consistent with this view, they divide the shruti texts as vidhi, mantra, namadheya, nishedha and arthavada:
Vidhi is an injunction commanding that something be done. This is of four types:
Utpatti vidhi which is an originative or creative injunction28.
Viniyoga vidhi which is an applicatory injunction and lays down the details of the sacrifice29.
Prayoga vidhi indicating speedy performance of the injunction and lays down the performance of the principal and subsidiary parts of the sacrifice.
Adhikara vidhi which declares the person entitled to carry out the act.
Mantra is the text which helps to remember the procedure for a sacrifice.
Namadheya is the text which designates or names the materials to be used for the sacrifice.
Nishedha is the prohibitory injunction.
Arthavada is the text which extolls or denounces some action.
According to the mimamsakas, the performance of the prescribed sacrifice produces merit or apoorva which inheres in the performer and leads to production of the desired result. They call the principal part of the prescribed sacrifice as angi and all its subsidiary parts as angas. These are also known by the terms pradhana and guna. The efforts of the mimamsakas were always directed to ensure that the pradhana is fulfilled. Towards this end, they modify and read as subordinate all texts which are guna. This is the real meaning of the terms. Hence, to apply this principle, one must correctly identify the shruti text which prescribes the pradhana and then read all other guna texts as subsidiary thereto and in a manner not inconsistent therewith. The pradhana and guna cannot be arbitrarily decided by anyone’s ipse dixit.
Keeping these principles in mind, we may now critically scan the judgment in Amit Plastic Industry23. Even assuming the Act to be similar to a shruti text, how does one determine the pradhana there? The Act does not declare it. First, we make an assumption as to what the intent of the Act is; then we have to read clause (1)(d) of the Explanation to Section 4-A to conform to this discovered intent of the legislation by artificial application of the gunapradhana maxim and then discover its true construction. The effort made, while commendable for its novelty, resembles the attempt to count sheep by counting the number of legs and then dividing the total by four!
The concept of atidesha, which has been advocated as a mode of interpretation, needs to be further analysed. Atidesha is not any arbitrary extrapolation, but controlled referential reading as enjoined by the shruti.
Jaimini classifies vidhis into three further kinds — anarabhayavidhi, prakritivakya and chodakavakya. The anarabhayavidhi is a scattered text which belongs to no context. The prakritivakya lays down the procedure of model sacrifice. The chodakavakya is the text showing the relation between the model (prakriti) and modified (vikriti) sacrifices. According to mimamsa, a chodakavakya is indispensible for determining the relationship between the model and the modified sacrifice, and the relationship between the parts and the whole; it helps in determining which actions are parts of a whole and which is the whole of which they are parts. It is this which determines if the modification of the model is to be determined by qualifications (vishishtha) or by extrapolations (atidesha).
In Mahavir Prasad Dwivedi v. State of U.P.30 the petitioner who was elected as the Chairman of Town Area Oran, was removed from the Chairmanship by an order of the District Magistrate, Banda dated 10-1-1992 made under Section 7-A of the U.P. Town Areas Act. This order was confirmed by the State Government by an order made on 21-1-1992. Both these orders were challenged by the petitioner before the Court. Section 7A(1) of the Act concerned lays down the procedure for removal of the Chairman or a member of a Committee. Sub-section (1) clauses (a), (b) and (c) indicate the disqualifications upon incurring of which the Chairman or member may be removed. The two relevant provisos to sub-section (1) of Section 7-A provide as under:
“Provided, firstly, that before making an order removing the Chairman or the member, as the case may be, he shall be allowed an opportunity to submit his explanation on the charges or charge against him:
Provided, secondly, that no order for removal shall take effect unless it is confirmed by the State Government.”
The first proviso is the formulation of the principle of natural justice that before removal one should be given an opportunity to be heard. The second proviso merely postulates that no order for removal shall take effect unless it is confirmed by the State Government.
The contention of the petitioner was that the State Government had granted its approval under the second proviso without giving him an opportunity of hearing. The question before the Court was whether a second opportunity of hearing before approval by the State was necessary. It was possible to take the view, as held by the learned Judge, that the compliance with natural justice must be read into every part of the statute. It was also possible to argue that the said principle should be read into the second proviso. The learned Judge having relied on a number of authorities to support this view, thereafter went into a tangential discussion of the mimamsa principles of interpretation. The judgment states:
“In mimamsa, casus omissus is known as adhyahara. The adhyahara principle permits us to add words to a legal text. However, the superiority of the mimamsa principles over Maxwell’s principles in this respect is shown by the fact that Maxwell does not go into further detail and does not mention the subcategories coming under the general category of casus omissus. In the mimamsa system, on the other hand, the general category of adhyahara has under it several subcategories, e.g., anushanga, anukarsha, etc. Since in this case we are concerned with the anushanga principle, I may explain it in some detail.”
The principle of adhyahara does not permit the random and arbitrary interpolation of words into a shruti text. The concepts of anushanga, anukarsha, tadutkarsha and tadapakarsha have all to be read and understood within the context of the basic principles of mimamsa. It is only by useful application of these principles that the smriti writers resolved the dispute. On the words of the statute concerned, one cannot say that the opportunity to submit an explanation, which is prescribed in the first proviso, must necessarily be read into the second proviso. It is also not possible to say that the two provisos can be read as principal and subordinate with the same theme. The purposes of the two provisos appear to be different. While the first requires compliance with natural justice, the second proviso ensures that the removal of the incumbent is confirmed at the highest level of the State Government. Requirement of confirmation by a high authority is an accepted principle in administrative law to ensure that justice is done. Even without recourse to the principles of mimamsa, it was possible to arrive at the same conclusion by reliance on the principles of interpretation à la Maxwell.
Although, the nyayas or principles developed by mimamsakas were intended to resolve doubts arising with reference to performance of sacrifices ordained by the shruti, they are also based on robust common sense and worldly experience. To that extent they can be adapted for the task of interpretation of statutes. This can be demonstrated by reference to some of the mimamsa nyayas and the identification of the principles underlying them.
Aruni nyaya
There is a text in the Taittireeya Samhita which says “v:.k;k fiUxk{;Sdgk;U;k lksea (h.kkfr”31 “he buys soma with a red, yellow-eyed, year-old (cow)”. The principal object here is the buying of soma; the description of the animal is merely an adjunct. Since the cow is merely the means of buying the soma, the adjectives describing its qualities are held not to be the conditions precedent to the purchase of soma. Thus evolved the Aruni nyaya which means that when a desired object is described by qualities which are mere accidents, they would be treated as superfluous in the transaction.
Grahaikatva nyaya
Take the vakya “n’kk ifo=s.k xzga lEekf"VZ” (“he washes the cup with the filtering cloth”). In the soma sacrifice several cups are used for drinking. Though here the reference is in the singular to one cup, the word cup is used to denote all cups used in the said sacrifice. Thus, the principle postulated is that when an object predicated belongs to a class, what is predicated of one applies to the class.
Varcho nyaya
The priest chanting the karana mantra “eekXus opksZ fogos"oLrq” (“O Agni, let there be my splendour in the offering”) does not recite it for himself, but on behalf of the yajamana.
Pashvekatva nyaya
The number gender used in the noun is significant and represents an object of that number or gender.
Rathakara nyaya
The shruti text o"kkZlq jFkdkj vkn/khr enjoins that a rathakara shall perform agnyadhana in the monsoon. The doubt here is whether the word rathakara means a maker of chariots, as the etymological meaning of the word suggests, or if it means a man of mixed caste, as the conventional meaning of the word denotes. By adopting the rule that the conventional meaning is stronger than the derivative meaning32, the word rathakara is held to mean a person of mixed caste.
There are many more such nyayas which are frequently referred to in mimamsa texts. An exhaustive discussion of all such nyayas is neither feasible nor necessary here. But the point to be driven home is that each nyaya needs to be examined against the background in which it has developed and the universal rule behind it needs to be extracted and formally recognised before the nyaya as such can be used in legal interpretative exercises.
Conclusion
MM Dr. P.V. Kane in his History of Dharmashastra, taking the view that mimamsa is not concerned with legislation by the king or a sovereign of the country, observes thus33:
“It should not be forgotten that the mimamsa is not concerned with legislation by the king or a sovereign popular assembly. It promises to convey correct knowledge of dharma (meaning religious rites and matters connected therewith) and the means of arriving at that knowledge is the Veda itself and the main purpose of the mimamsa is to regulate the procedure (itikartavyata), the various auxiliary and principal matters in Vedic sacrifices.”
Consistent with his view that it is only the bfrdrZO;rk of the shruti which is fulfilled by mimamsa, he seems to be categorical in his stand that mimamsa principles are entirely unsuited for interpretation of man-made statutes. In strong words he criticises late Kishorilal Sarkar’s Tagore Law Lectures published in 1909, where an attempt was made to adapt Jaimini’s rules for interpretation of statutes, in the following words34::
“There is a great deal of difference between the interpretation of statutes and the mimamsa rules of interpretation. In the first place, statutes are man-made, they express the will of the enacting authority, have mostly secular purposes, may be amended or even repealed and have to be expounded according to the intent of those that made them. But the mimamsa is concerned with the Veda that is deemed eternal and self-existent (and not man-made), that deals with religious matters, cannot be amended or repealed and is to be expounded according to the intent of the Vedic words. Therefore, though some rules of the interpretation of Vedic texts evolved by the Purvamimamsa are identical with or resemble the rules of the interpretation of statutes developed in such works as Maxwell on the Interpretation of Statutes, the author will not enter into any detailed treatment showing the parallelisms between mimamsa rules and Maxwell’s rules. This task was attempted over fifty years ago by Mr Kishorilal Sarkar in his Tagore Law Lectures published in 1909. It would appear ungracious on the part of the present author to offer criticisms against a predecessor in the same field who wrote more than half a century ago when mimamsa studies by modern educated Indians were in their infancy. But the author cannot help stating that Mr Sarkar was obsessed by the notion that he must show somehow or other that Jaimini’s rules of interpretation were not inferior to those of Maxwell’s and agreed closely with him. For this purpose he relies often on far-fetched analogies and employs obscure explanations. In several cases it appears that he had not been able to grasp correctly what Jaimini and Shabara meant.”
This view of Dr. Kane appears to be extreme, apart from being unduly harsh. It is not possible to agree with his implied postulation that under no circumstances could the rules of mimamsa be adapted for interpretation of statutes. The rules of mimamsa were not esoteric or arcane in origin, coming down from sources unknown. Even if the shruti is vikS:"ks;, mimamsa was not. It sprang from the human intellect; it was based on rational thinking, logic, rules of language and worldly wisdom, albeit that the rules were applied to resolve conflicts and doubts with regard to sentences and injunctions of the vikS:"ks; shruti. The fact that mimamsa rules were applied to determine the bfrdrZO;rk of the shruti need not, for that reason alone, deter us from adapting them for secular purposes. There is no reason to summarily dismiss or offhand debunk the attempt as utterly unfeasible, without deeper study.
The application of the mimamsa principles for resolution of doubts and conflicts in statutory interpretation, though, at least as at present advised, appears to be beset with formidable difficulties.
First, the correct application of the mimamsa principle would require precise knowledge of Sanskrit language, particularly the principles and rules of its grammar. It would also require precise appreciation of the schematic representation of the sutra text. Commentators like Shabara, Kumarilbhatta and others repeatedly refer to Pannini’s rules of grammar as to nominal case terminations, adjectival derivatives and compound words, all of which have great significance in Sanskrit. Any attempt to understand the mimamsasutras without a good working knowledge of Sanskrit language would be counterproductive.
Secondly, several of the terms used in the system of mimamsa have acquired conventional meanings by usage over millennia, just like the technical terms used in the language of law. These conventional meanings may often differ from the lexical meanings. Unless there is familiarity with the technical meanings of terms used in the system, their usage would become indiscriminate, resulting in chaos.
Thirdly, adeptness in the use of English language in jurisprudential parlance has been achieved over centuries as a result of debates in courts of law both in England and in India. Generations of lawyers have imbibed it and internalised it. While it may not be impossible effectively to substitute it by an indigenous system based on the mimamsa principles, it can only be attempted after at least two generations of lawyers are equally well trained in the discipline of mimamsa. This can only come about if mimamsa discipline along with the requisite study of Sanskrit language, together with its grammar and a basic knowledge of the principles of nyaya, are taught to the law students. In the absence of such academic training, to expect the lawyers or the judges to understand the fine-tuned technical arguments of mimamsa would be impracticable, if not impossible.
Fourthly, a judgment, particularly of the superior courts, is an authority not only for what it decides inter partes, but also because it is declaratory of the law which it lays down to be followed by the subordinate courts. If, suddenly, the principles of mimamsa are introduced in the judgments of the High Courts or the Supreme Court, it will be difficult for the subordinate courts to follow the principle on which the decision of the superior court rests. A judgment not being an occasion for explanation of the principles, but only for their application, it would be impossible to discover or discern the ratio decidendi. The lawyers and the judges need to become thoroughly familiar with the idioms and expressions of the discipline of mimamsa before they can debate them in courts of law.
Finally, the different nyayas of mimamsa need to be formally reduced to universally identified rules, like the theorems of Euclid or Newton’s laws of motion, so that the lawyers and judges may be ad idem on the true principle to be applied.
Any hasty attempt to introduce mimamsa to supplant the Maxwellian system may backfire and result in immense chaos. As the Garuda Purana apophthegmatically says:
;ks /kzqokf.k ifjR;T; v/kzqoa ifj"ksors A
/kzqokf.k rL; u’;fUr v/kzqoa u"Veso p”
“He who forsakes something stable in favour of something unstable, suffers doubly; he loses that which is stable, and, of course, loses that which is unstable.”
———
|
