The Golden Rule

The Indian statement

Tirath Singh v. Bachittar Singh, AIR 1955 SC 830, is the Indian authority and it applies the rule in an unusually clean way, because the Court accepted that the literal reading was available and departed from it anyway.

Facts. Tirath Singh v. Bachittar Singh, AIR 1955 SC 830. An election petition alleged corrupt practices. Section 99(1)(a) of the Representation of the People Act 1951 required the tribunal to record the names of all persons proved to have been guilty of a corrupt or illegal practice. The proviso said that no person shall be named in the order unless (a) he has been given notice to appear before the tribunal and to show cause why he should not be so named, and (b) if he appears in pursuance of the notice, he has been given an opportunity of cross-examining any witness already examined against him, of calling evidence in his defence, and of being heard. The appellant, who was already a party to the petition and had contested it throughout, argued that on the literal words he too was entitled to a fresh notice before being named.

Held. The appellant's construction was rejected. The Court accepted that if the language of the enactment is interpreted in its literal and grammatical sense there could be no escape from the conclusion that parties to the petition are also entitled to notice under the proviso, and then applied the rule of interpretation that where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. Reading the proviso with clause (b), which speaks of cross-examining witnesses already examined and of calling evidence, the Court held that, notwithstanding the wideness of the language, the proviso contemplates notice only to persons who are not parties to the petition, because the object of the notice is to give a person an opportunity of being heard before a finding is recorded against him, and a party has already had exactly that.

Why it matters. It is the golden rule applied by name, in substance if not by label, and it shows both halves: the literal reading is acknowledged, and the departure is justified by an absurdity, namely giving a fresh hearing to a person who has been heard throughout.

When the golden rule is used

Two situations are traditionally distinguished, and using the labels is worth marks.

The narrow use. The words are capable of more than one meaning, and the court chooses the meaning that avoids the absurdity. Here the golden rule is really a rule for selecting between available meanings, and it hardly departs from the text at all.

The wide use. The words have only one meaning, and that meaning is so absurd, or so repugnant to the rest of the Act, that the court modifies them. This is the controversial use, and Tirath Singh is close to it: the Court read a general word as though it carried an unexpressed qualification.

Even in the wide use the limit holds. A court may modify the meaning, and even the structure of the sentence, so far as is necessary to remove the absurdity, and no further.

What counts as an absurdity

This is the question on which the whole rule turns, and the honest answer is that no exhaustive test exists. What the cases show is that the following will do.

A result that contradicts the apparent purpose of the enactment, which is the formulation in Tirath Singh.

A result that is self-defeating, so that the provision would achieve the opposite of what it plainly sets out to achieve.

A repugnance between two provisions of the same Act, where reading one literally makes the other impossible to operate.

A result so unreasonable that the legislature cannot be supposed to have intended it, which is the presumption against absurdity worked in [Presumptions in Statutory Interpretation].

What will not do: that the result is harsh; that it is inconvenient to administer; that a different rule would be better policy; or that the court would have drafted it otherwise.

A worked example

A fictitious Public Examinations Act provides:

12. Any candidate found in possession of a mobile telephone in an examination hall shall be debarred for three years, and the invigilator shall report every such candidate to the Board.

13. Every invigilator shall deposit his own mobile telephone with the superintendent before entering the examination hall, and shall carry it into the hall only for the purpose of photographing an answer book that is to be seized.

Ravi, a candidate, is found with a mobile telephone. Nisha, an invigilator, carries hers into the hall to photograph a seized answer book, as section 13 requires.

Ravi. The literal rule disposes of it. The words are plain and cover him, and whether three years is severe is not the court's business.

Nisha. On the literal words of section 12, "any candidate" does not cover her, so there is no difficulty. Now change the section to read "any person found in possession of a mobile telephone in an examination hall". Section 12 would then debar an invigilator for doing exactly what section 13 obliges her to do. That is not harshness, it is repugnance between two provisions of the same Act, and the golden rule applies: "any person" is read as not extending to an invigilator acting under section 13.

And the limit. Having made that modification, the court stops. It does not go on to read "any person" as confined to candidates generally, because that goes further than is necessary to remove the repugnance, and a superintendent smuggling a telephone into the hall would still be caught.

A second variation. Suppose section 12 said "shall be debarred for three years" and another section said "shall be debarred for five years" for the same conduct. That is an inconsistency within the Act, and the golden rule permits the court to reconcile them, ordinarily by treating the specific provision as controlling the general one.

Distinctions table

What the rule does NOT mean

It is not a licence to improve a statute. Harshness, inconvenience and bad policy are not absurdities.

It does not let a court begin with the purpose. The starting point is always the ordinary meaning, and the purpose comes in only to show that the ordinary meaning contradicts it.

It does not permit an unlimited modification. "But no farther" is part of the rule, not a gloss on it.

It is not the mischief rule. The mischief rule asks what defect in the earlier law the Act was passed to cure, and it can be used where the words are merely ambiguous. The golden rule asks whether the ordinary meaning produces an absurdity, and it operates on the words the court already has.

It is not confined to statutes. Grey v. Pearson was a case on a will, and the formula speaks of "the instrument".

Limits and criticism

"Absurdity" is undefined and is in the eye of the court. That is the standing objection, and it has force: two judges can differ on whether a result is absurd or merely severe, and the rule then decides nothing until one of them has decided it.

It can become the wide use by stealth. A court that finds an absurdity may modify the words far enough to reach the result it prefers, and the "but no farther" limit is easier to state than to police.

It works better on repugnance than on absurdity. Where two provisions of the same Act cannot both operate, the difficulty is objective and the modification is disciplined by the need to make both work. Where the complaint is that the result is absurd, there is no such discipline.

Quick revision

Statement: the grammatical and ordinary sense of the words is to be adhered to unless it leads to some absurdity, repugnance or inconsistency with the rest of the instrument, in which case that sense may be modified so as to avoid the absurdity and inconsistency, but no farther. Grey v. Pearson, 1857.

Indian form: where the language, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. Tirath Singh v. Bachittar Singh, AIR 1955 SC 830.

Tirath Singh: an election petition; the proviso to s.99(1)(a) required notice before naming a person for a corrupt practice; the literal reading would have given a fresh notice to a party who had contested throughout; the Court read the proviso as contemplating notice only to persons who are not parties.

Two uses: narrow, choosing between available meanings; wide, modifying the only available meaning.

Triggers: absurdity, repugnance, inconsistency. Not harshness, inconvenience or bad policy.

Test yourself

1. State the golden rule in its classic form.

That the grammatical and ordinary sense of the words is to be adhered to unless it would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no farther. The formula is Lord Wensleydale's in Grey v. Pearson, decided in 1857, and its three limbs are the ordinary meaning as the starting point, three defined triggers, and a strict limit on how far the modification may go.

2. How did the Supreme Court state and apply the rule in Tirath Singh?

It stated it in the form that where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. It applied it by holding that the proviso to section 99(1)(a) of the Representation of the People Act 1951 contemplated notice only to persons who were not parties to the election petition, notwithstanding the wideness of its language, since a party had already had the very opportunity the notice was designed to give.

3. What is the difference between the narrow and the wide use of the rule?

In the narrow use the words are capable of more than one meaning and the court selects the one that avoids the absurdity, so it is really a rule for choosing between available constructions and departs from the text hardly at all. In the wide use the words bear only one meaning, and that meaning is so absurd or so repugnant to the rest of the Act that the court modifies it, and even the structure of the sentence. The wide use is the controversial one, because the court is departing from the only construction the words will bear.

4. What counts as an absurdity, and what does not?

A result that contradicts the apparent purpose of the enactment, that is self-defeating, that makes another provision of the same Act impossible to operate, or that is so unreasonable that the legislature cannot be supposed to have intended it. What does not count is that the result is harsh on a particular person, that it is inconvenient to administer, that a different rule would be better policy, or that the court would have drafted the provision differently.

5. Distinguish the golden rule from the mischief rule.

The golden rule starts from the ordinary meaning of the words the court has in front of it and modifies that meaning only to escape an absurdity, repugnance or inconsistency. The mischief rule starts further back, with the state of the law before the Act and the defect the Act was passed to cure, and directs the court to prefer the construction that suppresses the mischief and advances the remedy. The golden rule is therefore an exception to the literal rule, while the mischief rule is a different technique, available where the words are ambiguous or where the ordinary meaning would leave the mischief untouched.

6. Why is "but no farther" part of the rule rather than a gloss on it?

Because without it the rule would have no boundary. Once a court is permitted to depart from the ordinary meaning to avoid an absurdity, the only thing preventing it from continuing until it reaches whatever result it prefers is the requirement that the modification go no further than the absurdity requires. The limit is also what keeps the golden rule an exception to the literal rule rather than a substitute for it, and it is the answer to the objection that the rule lets judges rewrite statutes.