(3) LATER SOCIAL,
POLITICAL AND
ECONOMIC
DEVELOPMENTS AND
SCIENTIFIC
INVENTIONS
Two strands of thoughts
Originalism
“as if one were interpreting
Statutes must be
it the day after it was
historically interpreted
passed”
Statute should be presumably
Organic
• When a change in social conditions
produces a novel situation, which was not
in contemplation at the time when a
statute is first enacted, there can be no a
priori assumption that the enactment does
not apply to the new circumstances.
Statutes: ‘Always speaking
variety’
Statutes are
presumably
organic
Changed social
psyche and
expectations are
important factors to
be considered
Should be
To be applied to
applied to the
the legal system
world as it exists
today as it exists today
Statutes have
considerable
breadth
Some examples….
Representation of In 1909 ‘person’
the People ‘person’ did not include
(Scotland) Act, 1868 women
In any part of With present social
Punjab Excise Act 1914
premises in which conditions, the law
prohibited the liquor were consumed was declared as
employment of women by the public invalid
Changed circumstances must be
taken into account
By marriage the
Common Law consents irrevocably
Fiction to sexual intercourse
This position has
now become
anachronistic
The husband Under the Sexual
Offences
can be convicted (Amendment) Act,
of rape 1976
If he has sexual
R v. Clarence (1889) 22 QBD 22
A man
His wife with
recklessly
HIV or any STD
infecting
Even in
consensual sex
When the lady did
Man could be held
not know the man
guilty of inflicting
suffering from such
grievous bodily harm
disease
u/S.20 of the
The stretching is possible….
• When the ‘contents of the concept has
been substantially added’.
• When new grounds are added to the pre-
existing concept.
• The stretching is not possible when the
subject matter is different in kind or
dimension from that for which legislation
was passed.
State of Punjab v. Sodhi Singh Sukhdev
AIR 1961 SC 493
Ghaidan v. Mendoza
(2004) 3 All ER 411 (HL)
●
The persons of the same-sex living
1.) together were not considered as
husband & wife till some time back.
●
Now after the enforcement of the Human Rights
2.) Act, 1998 in England, giving effect to the ECHR,
Art.14 of which makes sexual orientation as an
impermissible grounds of discrimination.
●
Thus, now the same-sex partners are
3.) considered Husband & Wife to avoid
incompatibility with human rights.
Obergefell v. Hodges 576 U.S. (2015)
Transgender- Male to female Surgery
Bellinger v. Bellinger Goodwin v. U.K.
(2003) 2 All ER 593 (HL)
[2002] 2 FCR 577
Male to female transsexual The ECHR endorses rights of
transsexuals
Underwent irreversible gender For personal development &
re-assignment surgery physical & moral security
Court in the absence of a legislation did not The rights of such persons be
treat her as female for marriage to a man accepted
A v. Chief Constable of Yorkshire
(2003) 1 All ER 255 (CA)
Same Principle for Later Scientific Developments
For scientific
advances
Upholding the
purpose, prevent
defeat of the
statute
Court stretches
the language of
the statute
For
accommodatin
g new changes
For example…..
Telephone was included in Telegraph w/in the meaning of the
Telegraph Act, 1863
R v. Secretary of State for Health,
(2002 ) 2 All ER 625
• Sec 1(1) of the HFEA, 1990 defines ‘embryo’ to mean ‘a
live human embryo where fertilization is complete’.
• This definition was construed to cover even an embryo
produced not by fertilization but by cell nuclear
replacement (CNR), a method developed by scientists after
1990, by reading the definition of embryo to mean ‘a live
human embryo where if it is produced by a new technique
and the fertilization is complete.’
CONSTITUTION
ACTS
A Constitution is intended to provide an
‘enduring instrument’ to serve through a
long lapse of ages without frequent
revision.
It is not only designed to meet the needs
of the day when it is enacted but also the
needs of the altering conditions of the
future.
Constitution- Not a Mummified
Document!!
ARTICLE 21: - No person
shall be deprived of his life
or personal liberty except
according to procedure
established by law. Present version
includes wide
variety of rights
Over the from speedy trial,
years the to pollution free
ambit was air, dignity,
privacy, good
Original widened health, right to
understanding. education etc.
Narrow,
restricted.
Aruna Ramchandra Shanbaug v. Union of India (2011)
4 SCC 454
Another example….
• Art.253 Legislation for giving effect to
international agreements
Notwithstanding anything in the foregoing
provisions of this Chapter, Parliament has power
to make any law for the whole or any part of the
territory of India for implementing any treaty,
agreement or convention with any other country
or countries or any decision made at any
international conference, association or other
body.
Vishakha v. State of Rajasthan,
AIR 1997 SC 3011
The Doctrine of
Sovereign Immunity
From Sovereign
Immunity
To Public Law
Wrongs
• Historical Origin- Peninsular & Oriental Steam
Navigation Co v. Secretary of State for India, 1868
Article 300 Sovereign Immunity
• Kasturilal Ralia Ram Jain v. State of U.P. (1965)
• Nilbati Behra v. State of Orissa (1993)
• [Link] v. State of West Bengal ( 1997)
• Hindustan Papers Corporation v. Ananta
Bhattacharjee (2004)
The Decline of Sovereign Immunity
Public Violation of
Law Fundament
Wrong al Rights
State, its Evolving
instrument-
alities and dimension
other officers s of Art.21
But…the doctrine has its limitations
• The language of an old statute cannot
be construed to embrace something
conceptually different.
***
