By Prof Upendra Baxi
If there is one thing we know for sure, it is this: words have a meaning and very often, words de-create and recreate the world. The great philosopher Ludwig Wittgenstein aphoristically said it all: “The limits of language are the limits of my world” and “Whereof one cannot speak, thereof one must be silent.” However, Justices, bound by the constitutional oath, or tradition of the law, have a duty to decide a case or controversy and cannot exercise the right to silence. They have a unique duty to speak in public through a judgment delivered in open court and published officially.
The extraordinary thing about law is that the language it uses and the meanings it creates lead to new social realities. Many words which are neither used in society nor nature are, in fact, invented by languages of law, such as the legal personality of a corporation, citizens, a deity, a river, a forest or a mountain. A great linguist—AJ Griemas—spoke of production juridieque; (legislative production of norms) and verification juridique (adjudicative interpretation of legal norms). The commonplace, but thoughtless, indictment of “judicial overreach” overlooks the fact that legal meanings are always co-produced jointly by legislatures and courts—a phenomenon I call “demosprudential co-governance” of the nation.
In most systems of law, the final power of law-saying and law-making rests with Supreme Courts. However, what prevails in the end is not “natural” reason, but what Lord Coke said immortally to King James 1 (circa 1628): the law has “artificial reason of its own”. No monarch by use of “natural reason” may supersede the law. Even the monarch’s natural reason must yield to the collective, adjudicative and generational “wisdom of the law”, which is “the perfection of reason” based on rival contentions in the public realm. Perhaps, the dark side of judicial processes worldwide suggests some caution concerning the panegyric of the adjudicative law, but there is no gainsaying that there is cumulative judicial wisdom which may be ignored at great peril.
Both the apex courts—the Supreme Court of the United States (SCOTUS) and the Indian Supreme Court (SCI)—have inherited this conception of judicial power and review, and followed a certain rectitude in interpretation of statues. They hunt for the legislative intent, but it is difficult, or even impossible, to say what the intent is or was. Hans Kelsen rightly insisted that the intention is after all an interpretive act of “imputation”. Justices and courts thus find a safe harbour in following the ordinary language in interpreting a statute.
But determination of “intention” often turns out to be a battleground as illustrated by a SCOTUS decision last week—Hollyfrontier Cheyenne Refining, which produced a 6:3 opinion written by (Gorsuch, J., and signed by Roberts, C J., Thomas, Breyer, Alito and Kavanaugh, JJ ), whereas Barrett J. led a dissent (joined by Sotomayor and Kagan, JJ). This in an interesting decision ideologically because:
 three women Justices dissented in unison
 two recent Trump elevatees differed
 distinctions typically drawn among the “liberal” and “conservative” camps of Justices were overrun. Leaving this dimension to connoisseurs and cognoscenti, I focus here on how the ordinary language/rule led to diametrically opposed results.
The US Congress amendment to the Clean Air Act to add the Renewable Fuel Program (RFP) gave small refineries a temporary exemption from compliance. Congress divested the Environmental Protection Agency (EPA) with authority to grant “extension[s] of the exemption” in certain instances. Domestic refineries were required by REP to blend renewable fuels into the transportation fuels they produce, but the Congress also created a blanket exemption for all small refineries until 2011. The EPA was empowered to extend the exemption for at least two years if the RFP obligations would impose “a disproportionate economic hardship” (emphasis added) on a small refinery. Finally, Congress offered the possibility of further relief in future years by providing that “[a] small refinery may at any time petition . . . for an extension of the exemption” against “disproportionate economic hardship.” The EPA gave exemption in 31 cases until 2018. The three small refineries in this case, never in the first place, sought any “exemption” but still sought “extension of the exemption”.
The Tenth Circuit had ruled that the “ordinary definitions of ‘extension’, along with common sense, dictate that the subject of an extension must be in existence before it can be extended”, but the SCOTUS majority differed. It urges deference to the context. That context is, indeed, a strange amalgam! It evoked the “phrase at any time” to signify that a refinery may move the Administrator for an “extension” even when the three companies here had actually not asked for exemption in the first place. As the dissent cogently points out, a refinery could ask to “extend” an exemption it had in 2010 in the year 2040, with “no need to connect the two periods”. To characterise this example as “extreme” and “highly unlikely” shows “just how far this interpretation strays from the term’s ordinary meaning”.
I do not delve further into the various intricacies and subtleties of the majority opinion dealing with sunset clauses, or the conflation of “exemption” with “exceptions” and even “waivers” which attract other various provisions and principles. The short question here is whether there is any such thing as “ordinary language” or “commonsense” before judicial construction happens. Obviously, when Justices differ on the ordinary meaning of words, this rule fails! In the final result, the judgment appears an act of judicial will to impute a context, which then creates the meaning of statutory language.
The same is true of the SCI, which invokes the “ordinary language” rule. However, a thriving multi-linguism makes the Indian situation a shade more complicated. At the SCI and High Court levels, the Court functions as a linguistically homogenous group—as (Indian) English is the official language of the courts. District level courts do transact work in the official language of the states. Given the Judges Cases, the transfers and elevations of Justices mean in practice that the High Court chief justice and some members of courts may not know the state or local languages. The ordinary language rule is tested rather severely then, at least in the appellate regions of law in India.
My favourite examples here come from the “ginger” cases. Washi Ahmed (1977) is one such case. Here a bench of the SCI (Justices PN Bhagwati and Syed Murtaza Faza Ali) decided that “ginger” was not included in the notion of “sabji, Tar-kari, or sak” within the meaning of Bengal Finance (Sales Tax) Act, 1941. Invoking Motipur Jamindary Co. and Ramavatar (decided in 1961 and 1962, though the latter was concerned with betel nut), the SCI deferred to ordinary language. It reiterated the observations made in Madhya Pradesh Pan Merchants’ Association, Santra Market (1954, per Chief Justice M Hidyatullah and Justice Mangalmurti) that “the word ‘vegetables’ cannot be given the comprehensive meaning the term bears in natural history and has not been given that meaning in taxing statutes before”.1
Leaving aside the question whether the citation of classic judicial precedents in other countries constitutes judicial overkill, or whether we need so much comparative judicial weight concerning so elementary a proposition, the real question is: what ends are being served by this insistence on commonsense? In the ginger cases, what really happens is a judicial delegation of the power to decide vested in the SCI on to the High Court.1 This appears wise as the SCI had then no means of knowing whether or not the ordinary usage in West Bengal, or any other linguistically reorganised state, was how ginger was treated. But by the same token how was the High Court better equipped to know whether the local folks regarded green ginger as “sabji, sak, or tarkari”? What warrants the assumption that Justices there were accustomed to folk linguistic ways? The Courts, usually, conduct no empirical enquiry; what if their understanding of popular usage is based on their elitist background, and what is to be done when there are a variety of responses in popular understanding?2 Indeed, Justice D Basu begins his judgment by saying that the case here raises “a tempest, not in a tea pot but in a pot of ginger”. Should the ordinary language rule be concerned with the container or the tempest?
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer
1The Court also cites, straddling centuries, Grenfell (1876); Planters Nut and Chocolate Co. Ltd. (1951); and 200 Chests of Tea (1824)—cases from Brittan, Canada and America—to support the ordinary language rule. This invokes the high authority indeed of Joseph Story, Justice B. Pollock, and the Canadian High Court.
2In fact, the learned Justice (in Paragraphs 9-10 respectively) seems a little unsure concerning the impact of other state legislations or languages concerning green ginger being treated as a ‘vegetable’. Justice D Basu further says that the petitioner is entitled to the benefit of such doubt, “because the statute is fiscal even if the connotation of these words be doubtful”. Does the ordinary language then have any relevance to the construction of a fiscal legislation? See also, Kuki Ginger Producers vs State of Assam (1999).