Wednesday, August 08, 2007

Legal conundrums

"Words, words, words", says Hamlet, in response to Polonius' question, "What do you read, my lord?" Of course, Polonius wants to know the meaning of the words in the book that Hamlet is reading, but Hamlet's answer suggests that they are meaningless. Polonius then follows up with a clarification, "What is the matter, my lord?" By "matter," Polonius means "subject matter," but Hamlet again deliberately misinterprets. He takes "matter" to mean something wrong (as we do when we say "What's the matter with you?") and answers Polonius' question with a question ("Between who?"), as though someone were quarrelling with someone else.
Shakespeare exposes but a facet of comic situation when every word that we say gets misinterpreted the wrong way and the whole conversation gets to circumlocution. This is not just among ordinary persons’ oral exchanges. What do you think happens in statutory texts, where the desired goal is certainty but words fail? When words convey more than what they are intended?
You have to grapple with a whole lot of rules of statutory interpretations, as when “singular” means the “plural”; “masculine” includes “feminine”; the “present” includes the “future”; “shall” means “may” or vice versa. The expressions may pertain to tense, sex, numerals and what have you!
Recently, the issue before the court was what the expression, “children” meant in a college prospectus; whether it included “grand children” and all the progeny through successive generations. In curtailing the meaning to what the word meant in common parlance, in the context of extending privileges of reservation of seats for admission to educational institutions to children of freedom fighters, the judge showed the absurdity of argument by taking it to the logical end. He wondered if the extended meaning canvassed would not make possible a claim by a descendent of a freedom fighter that participated in the First War of Indian Independence.. He rejected, by the same breath, that even if there might not be any person among the present generation of students who could be children of freedom fighters, it shall not avail to a student to make an artificial construct for a plain meaning of an English expression.
Even under the Indian Succession Act, if the child who is a beneficiary predeceases the testator, the legacy does not lapse but survives to the grandchild. However, a bequest to A and his children or to A and his heirs or to A and his family will be taken as gift to A only. Here the reference to “children” or “heirs” or “family” would be taken as superfluous and discarded. How will you interpret it, if the bequest is to A and his brothers? Discard “his brothers” and give the legacy to A? No, logically, it may be so, but the provision of law would state that the legacy would be taken by A and his brothers. Please also note that the masculine does not include the feminine! The sisters cannot be taken as included, in the absence of specific expression in the bequest.
Again, words which express relationship, such as ‘child’, ‘son’, and ‘daughter’ must be understood as denoting a legitimate relative, says a provision under the Indian Succession Act. How do you reconcile this rule when the traditional Hindu Law accorded to an illegitimate son, subject to some exceptions, a share in the property of the putative father equal to half as much as a legitimate son could get? Later amendment to the marriage law enabled a child born through void or voidable marriages to claim a share to the property of the father as if he were a legitimate child. This change in law did not help, said even a liberal-minded judge, in restricting the bequest only to a legitimate child.
Just not the succession laws, the General Clauses Act have whole lot of expansive definitions. There, the ‘person’ will include any company or association or both, of individuals, whether incorporated or not. The expression ‘sign’ says another definition as including a mark, if it is with reference to a person who is unable to write. A will would include a codicil and a son would include an adopted son.
All this, give us lawyers privileges to be imaginative. Any accidental slip in a document could be explained by supplying words. Poor legislative draftsmanship could be buttressed by expansive interpretation. Expressions in judgments could be given extended meanings or restrictive interpretation, depending on what favors your client. Words, words, words… now, the expression is used not in the sense that Hamlet used but in the sense Polonius wanted to know!

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