Doctrine of Harmonious Construction

HISTORY

1st amendment came in the case of Sankari Prasad before SC. The court unanimously decided to resolve the conflict between Fundamental Rights and Directive Principles by placing the reliance of the line of doctrine of harmonious construction. The court held that the FRs impose limitation over the legislature and executive power. They are not inviolable and parliament can amend them to bring in conformity to directive principles. The result was generally all law providing for the acquisition of state and interest therein and specially certain state including land reform acts of U.P., Bihar and M.P. were immune from the attack based on article 13 read with other provision of part III.

DOCRTINE OF HARMONIOUS CONSTRUCTION

It is a sound canon of interpretation that courts must try to avoid a conflict between the provisions of Statute. The rule of reconciliation on the Entries was propounded for the first time in the case of in re C.P. and Bare Act.

It is the province of the courts to determine the extent of the authority to deal with subjects falling within the legislative purview of each legislature. To avoid conflict, the Courts should read Entries of two Lists together and the language of one Entry can be interpreted, and modified too, with the help of another Entry. Interpreting Entries 24 and 25 of the State List harmoniously, the Supreme Court held that ‘gas and gas works’ being in Entry 25 would not fall in the general Entry 24’Industry’ and observed:

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It is also well settled that widest amplitude should be given to the language of Entries but some of the entries in the different Lists…may overlap and sometimes may also appear to be in direct conflict with each other, it is then duty of this court to reconcile the entries and bring about harmony between them. In this way it may, in most cases, be found possible to arrive at a reasonable and practical construction of the language of the sections, so as to reconcile the respective powers they contain and to give effect to all of them. In Tika Ramji v. State of Uttar Pradesh, [3] the position of the industries was clarified by Supreme Court. In the instant case the vires of U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 was involved. It was contended that sugarcane being ‘controlled’ industry fall within the jurisdiction of the Union List by virtue of Entry 52 of List I falls within the legislative purview of Parliament. The Supreme Court, therefore, had to explain the Inter-relation between Entries 52 of List I, 24 and 27 of List II and 33 of List III. Entry 24 of List II and 52 of List I establish that except ‘controlled’ industries, the industries generally fells within the State Sphere. Entry 27 of List II gives power to State to regulate the production, supply and distribution of ‘goods’ subject to provisions of Entry 33 of List III. The sugar industry being controlled industry, the distribution, supply and production of the product of this controlled industry viz. Sugar as a finished product,

Principle of Harmonious Construction

The principle of harmonious interpretation is similar to the idea of broad or purposive approach. The key to this method of constitutional interpretation is that provisions of the Constitution should be harmoniously interpreted. “Constitutional provisions should not be construed in isolation from all other parts of the Constitution, but should be construed as to harmonize with those other parts.” A provision of the constitution must be construed and considered as part of the Constitution and it should be given a meaning and an application which does not lead to conflict with other Articles and which confirms with the Constitution’s general scheme. When there are two provisions in a statute, which are in apparent conflict with each other, they should be interpreted such that effect can be given to both and that construction which renders either of them inoperative and useless should not be adopted except in the last resort. This principle is illustrated in the case of Raj Krishna vs Binod AIR 1954. In this case, two provisions of Representation of People Act, 1951, which were in apparent conflict were brought forth. Section 33 (2) says that a Government Servant can nominate or second a person in election but section 123(8) says that a Government Servant cannot assist any candidate in election except by casting his vote. The Supreme Court observed that both these provisions should be harmoniously interpreted and held that a Government Servant was entitled to nominate or second a candidate seeking election in State Legislative assembly. This harmony can only be achieved if Section 123(8) is interpreted as giving the govt. servant the right to vote as well as to nominate or second a candidate and forbidding him to assist the candidate it any other manner. Upon looking at various cases, the following important aspects of this principle are evident – The courts must avoid a head on clash of seemingly contradicting provisions and they must construe the contradictory provisions so as to harmonize them. The provision of one section cannot be used to defeat the provision contained in another unless the court, despite all its effort, is unable to find a way to reconcile their differences. When it is impossible to completely reconcile the differences in contradictory provisions, the courts must interpret them in such as way so that effect is given to both the provisions as much as possible. Courts must also keep in mind that interpretation that reduces one provision to a useless number or a dead lumbar, is not harmonious construction. To harmonize is not to destroy any statutory provision or to render it otiose.

Case 1:

Unni Krishnan, J.P. and ors., etc. v. State of Andhra Pradesh and ors.

The writ petition was filed challenging whether the ‘right to life’ under Article 21 of the constitution guarantees a fundamental right to education to the citizens of India and right to education includes professional education. This was challenged by certain private professional educational institutions and also in respect of regulating capitation fees charged by such institutions. The Supreme Court held that right to basic education was implied by the fundamental right to life when read with article 41 of directive principle on education. As per article 45 of the constitution, the state is to provide free and compulsory education for all children below the age of 14 years and there is no fundamental right to education for a professional degree that flows from article 21. Several states have passed legislation making primary education compulsory and there is no central legislation to make elementary education compulsory. In addition, the Court held that, in order to treat a right as fundamental right, it is not necessary that it should be expressly stated as one in Part III of the Constitution: “the provisions of Part III and Part IV are supplementary and complementary to each other”. The Court rejected that the rights reflected in the provisions of Part III are superior to the moral claims and aspirations reflected in the provisions of Part IV.

Case:2

Smt. Rani Kusum vs Smt. Kanchan Devi And Ors on 16 August, 2005

Showing the contexts in which harmonious construction author:A Pasayat appears in the document have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word ‘shall’ is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure are handmaid of justice stress. In the present context, the strict interpretation would defeat justice.

In construing this provision, support can also be had from Order VIII Rule 10 which provides that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him, or make such other order in relation written statement under this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit. In the context of the provision, despite use of the word ‘shall’, the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII Rule 1. There is no restriction in Order VIII Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to ‘make such order in relation to the suit as it thinks fit’. Clearly, therefore, the provision of Order VIII Rule 1 providing for upper limit

State Of Orissa And Ors vs Arakhita Bisoi on 14 April, 1977

Showing the contexts in which harmonious construction appears in the document respondent was allowed by the Orissa High Court by its order dated 15-7-1976 holding that the Additional Magistrate had powers to revise an order of the appellate authority passed u/s 44 by virtue of the powers conferred on him under s. 59of the Act.

Dismissing the appeal by certificate, the Court, HELD: (i)The language of S. 59(1) of the Orissa Land Reforms Act is wide enough to enable the Collector to revise any order including an appellate order under S. 44 of the Act.[561B]

(ii) In applying the rule of harmonious construction with a view to give effect to the intention of the legislature the court will not be justified in putting a construction which would restrict the revisionary jurisdiction of the Collector and the Board of Revenue. [560E] In the instant case, the Act is of expropratory nature and the determination of the excess lands is done by the Revenue Officer. The legislature intended that any error or irregularity should be rectified by higher authorities like the Collector and the Board of Revenue. [560E] J. K. Cotton Spinning & Weaving Mills Co. Ltd. v. State revise such order. Though the amendment to section 44(3) makes it clear that a right to revision is provided for orders passed under section 44(2), we do not think that this could mean that section 44(2) as it originally stood did not provide for power of revision to the Collector under section59. In our opinion, amendment does not make any difference. The learned counsel for the appellant submitted that section 44(3) is in the nature of a special provision and should be construed as an exception to section 59 on the principle of harmonious construction. In support of this plea the learned counsel referred to the decision in The J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. State of U.P. & Ors. (1). In construing the provisions of clause 5(a) and clause 23 of the G.O. concerned, this Court held that the rule of harmonious construction should be applied and in applying the rule the court will have to remember that to harmonise is not to destroy and that in interpreting the statutes the court always presumes that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect, and a construction which defeats the intention of the rule-making authority must be avoided. This decision does not help the appellant for in our view in applying the rule of harmonious construction with a view to give effect to the intention o(the legislature the court will not be justified in putting a construction which would restrict the revisionary jurisdiction of the Collector and the Board of Revenue. It may be noted that the Act is of exproprietory nature and the determination of the excess lands is done by the Revenue Officer and on appeal by the Revenue Divisional Officer. In such circumstances, it is only 13roper to presume that the legislature intended that any error or irregularity should be rectified by higher authorities like the Collector and the Board of Revenue. In our view it will be in conformity with the intention of the legislature to hold that section 59 confers a power of revision of an order passed under section 44(2) of the Act. The learned counsel next referred to a decision of this Court in The Bengal Immunity Company Limited rule of construction is stated at p. 791 in the following terms by Venkatarama Ayyar, J. speaking for the Court: “It is a cardinal rule of construction that when there are in a Statute two provisions which are in conflict with each other such that both of them cannot ‘stand, they should, if possible be so interpreted that effect can be given to both, and that a construction which renders either of them inoperative and useless should not be adopted except in the last resort. This is what is known as the rule of harmonious construction. One application of this rule is that when there 561

is a law generally dealing with a subject and another dealing particularly with one of the topics comprised therein, the general law is to be construed as yielding to the special in respect of the matters comprised therein.” Construing section 59 as conferring a power of revision against an order passed under section 44(2) is not in any way contrary to the principle laid down in the above decision.

Jagdish Singh vs Lt. Governor Delhi And Others on 11 March, 1997

Showing the contexts in which harmonious construction appears in the document later. The Registrar, however, committed serious error in interpreting Sub-rule (2) of Rule 25 and directing cessation of membership of the appellant from both the societies. Mr. Bobde also argued that if Sub-rule (2) of Rule 25 is interpreted to mean that on incurring such disqualification by operation of law one ceases to be a member of both societies, then Rule 28 conferring power on the Registrar to give a written requisition to either or both the co-operative societies for cessation of the membership, would become inoperative, and therefore, efforts should be made” for harmonious construction where under both the provisions can operate. Mr. Bobde also argued that under Rule 25(1) the embargo upon a person to become a member of a co-operative society is there if the said person or his spouse or any of his dependent children is a member of any other housing society. The disqualification in question is thus attached to becoming a member of co-operative society if he is already a member of another society. Under Sub-rule (2) of Rule 25 a deemed cessation accrues obviously in relation to a society in respect of which the disqualification is attached question that arises for consideration is: whether a person who is a member of a housing co-operative society having incurred the disqualification under Rule 25(1)(c)(iii) on being a member of a subsequent housing society would cease to be a member of both the societies with effect from the date of the disqualification incurred by him. It is a cardinal principal of construction of a statute or the statutory rule that efforts should be made in construing the different provisions, so that, each provision will have its play and in the event of any conflict a harmonious construction should be given. Further a statute or a rule made there under should be read as a whole and one provision should be construed with reference to the other provision so as to make the rule consistent and any construction which would bring any inconsistency or repugnancy between one provision and the other should be avoided. One rule cannot be used to defeat another rule in the same rules unless it is impossible to effect harmonisation between them. The well-known principle of harmonious construction is that effect should be given to all the provisions, and therefore, this Court held in several cases that a construction that reduces one of the provisions to a ‘dead letter’ is not a harmonious construction as one part is being destroyed and consequently court should avoid such a construction. Bearing in mind the aforesaid rules of construction if Sub-rule (2) of Rule 25 and Rule 28 are examined the obvious answer would be that under Sub-rule (2) the deemed cessation from membership of the person concerned is in relation to the society pertaining to which disqualifications are incurred. A plain reading of Rule 28 makes it crystal clear that the Registrar when becomes aware of the fact that an individual has become a member of two co-operative societies of the same class which obviously is a disqualification under Rule 25 then he has the discretion to direct removal of the said individual from the membership of either or both the co-operative societies. If Sub-rule (2) of Rule 25 is interpreted to mean that deemed cessation of the person concerned from membership of both the societies then the question of discretion of the Registrar under Rule 28 will not arise .If the interpretation given by the Registrar incurred. In the case in hand the disqualification which the appellant incurred was in respect of his membership of the Tribal Co-operative Housing Society Ltd. as he could not have become a member of the said society as he was already a member of Dronacharaya Co-operative Group Housing Society, and therefore, by operation of Sub-rule (2) he would deem to have ceased to be a member from the Tribal Co-operative Housing Society right from the inception in November, 1983 and not from the Dronacharaya Co- operative Group Housing Society.

8. Apart from the aforesaid harmonious construction of Sub-rule (2) of Rule 25 and Rule 28, on a plain construction of Rules 25 also the same conclusion has to be arrived at. Sub-rule (1) disqualifies a person for admission as member of a housing society if he or his spouse or any of his dependent children is a member of any other housing society. The disqualification in question obviously attaches to membership of the second society and has no connection with his membership of the first society. In view of the aforesaid embargo contained in Sub-rule (1) to Rule 25, Sub-rule

Significance

1. The courts must avoid a head on clash of seemingly contradicting provisions and they must construe the contradictory provisions so as to harmonize them.
2. The provision of one section cannot be used to defeat the provision contained in another unless the court, despite all its effort, is unable to find a way to reconcile their differences.
3. When it is immpossible to completely reconcile the differences in contradictory provisions, the courts must interpret them in such as way so that effect is given to both the provisions as much as possible.
4. Courts must also keep in mind that interpretation that reduces one provision to a useless number or a dead lumbar, is not harmonious construction.
5. To harmonize is not to destroy any statutory provision or to render it otiose.

Conclusion

As per this doctrine the courts must try to avoid conflicts between the provisions of the statutes. Thus the provisions must be so interpreted that the conflict between the two is avoided and each of them is given effect and, for that purpose the scope and meaning of one may be restricted so as to give meaning to the other also.