Doctrine of Harmonious Construction

Introduction

The various statutes, or laws if we were to speak broadly, that we follow, are formulated in the legislature, but the responsibility of interpretation of the laws sometimes falls upon the judiciary. The need for interpretation of statutes may arise because of lack of consensus in the Parliament on the issue, or simply because it would be better if the issue were decided on a case to case basis. During the interpretation and construction of different statutes, the judiciary has the ease of adhering to the various doctrines available under the law. One such doctrine is the doctrine of harmonious construction. It is envisaged in the Indian Constitution and has been used in a number of case laws as well.

The doctrine of harmonious construction stands for is that a statute should be read as a whole, and a provision of the statute should be interpreted keeping in view the entirety of the statute. It should not be isolated and then interpreted. This ensures that the statute so enacted is consistent, and also that any kind of repugnancy within the different provisions is avoided, so far as it is acceptable.

According to Salmond, construction is a process through which courts can determine the meaning of pieces of legislations through the medium of authoritative terms in which they are expressed. The Indian Constitution, in Schedule 7, mentions three lists on which the Centre and States can legislate: The Union List (List I), the State List (List II), and the Concurrent List (List III). The doctrine of harmonious construction helps in achieving harmony among these Lists. Moreover, provisions of a legislation can be harmoniously construed by the judiciary in order to clarify any point(s) of issue.

Origin of Doctrine of Harmonious Construction

The doctrine of harmonious construction evolved through interpretations of the courts. The judiciary, from time to time, decided typical matters that involved a pitting between two distinct provisions. In India, this doctrine initially came disguised as the rule of conciliation in the case of C. P. and Berar Act[1], wherein the concerned court dissolved the inconsistency between Entries 24 and 25 of the State List (List II in the Indian Constitution) and interpreted them harmoniously.

Later, the first amendment to the Constitution came after the landmark case of  Prasad v. UShankarinion of India[2], where the conflict was between the Fundamental Rights and Directive Principles of State Policy. The court held that since the Fundamental Rights are rights against the State, they can be taken away or amended. Both, the Fundamental Rights and the Directive Principles, are essential for the working of the State; they can be said to be two sides of the same coin.

Objective of Doctrine of Harmonious Construction

Every statute has a particular intention, a particular purpose that it seeks to fulfil. The Parliament is trusted with the responsibility to formulate laws, and it should not be curtailed simply because an isolated provision of a particular statute is questionable. The doctrine of harmonious construction implies that any discrepancy within the sections of a particular statute should be avoided if that statute is up for interpretation. Any interpretation that would result in injustice or hardship to anyone should be avoided, and the interpretation that comes the closest to delivery of justice should be chosen.[3] The judges of the courts should look for the provision(s) that is more general in nature, and exclude any specific provision that would result in inconvenience.

The doctrine of harmonious construction rests in two maxims: generalia specialibus non-derogant, which means that general things do not go against special things, and generalia specialibus derogant, which means that special things go against general things.

The doctrine proves as an aid in matters involving conflict between two provisions of the same Act[4], or of provisions of different Acts of the Parliament[5], and even in the making of statutory rules[6] and orders[7]. But if an individual can access two remedies, one being general in nature and the other being specific, they will remain so unless the individual himself elects one of them.[8]

Principles Doctrine of Harmonious Construction

In Commissioner of Income Tax v. Hindustan Bulk Carrier[9], the Supreme Court laid down certain principles that govern the doctrine of harmonious construction:

  1. While interpretation of the provisions, the courts need to avoid all circumstances of ‘head-on clash’ between the provisions. They must be construed harmoniously.
  2. Interpretation by the courts should be done in such a way that one provision does not defeat the other provision unless there seems no possible construction.[10]
  3. If the situation is so that it becomes impossible to reconcile the provisions in conflict, the courts must decide in such a way that both provisions are given effect.
  4. Any construction that renders one provision of the statute (or another statute, in case of two different statutes) ‘useless lumber’ or ‘dead letter’ should not be given effect. Such construction is not a harmonious construction.
  5. A harmonious construction is one which does not defeat any other provisions.

Judicial Approach

It depends on the judiciary to interpret the statute according to the doctrine of harmonious construction. The intention should always be to render the provision operative. Any inconsistency should neither be created nor inferred. Where a provision signals confusion, the whole statute should be considered and the provision should be studied in the light of the same. Where there are alternative constructions, the construction that promotes consistency should be adopted. Where two provisions of a statute are contradictory, it is not possible to apply both of them. In such a case, the provision that is conflicting will be disregarded. However, this goes against the very maxim ut res magis valeat qauam pereat, which literally means that it is better for a thing to have effect than to be made void.

If two provisions of the same enactment cannot be reconciled, effort should be made to give effect to both of them.[11] If the judiciary finds that it is impossible to give a harmonious construction, then it is in the hands of the judiciary only, to give the final judgement on the matter.

The usual approach is to identify the various possible constructions, and then avoid the more general one as against the more specific one.[12] This is determined according to the extent of the application of the provisions, both in general as well as specific situations.

Application of Doctrine of Harmonious Construction

In M. S. M. Sharma v. Krishna Sinha[13], the issue was that whether the privileges under Article 194(3) of the Indian Constitution should be allowed to prevail over the Fundamental Right of Speech under Article 19(1)(a). The Supreme Court held that although the Fundamental Right to Privacy enshrined under Article 21 of the Constitution supersedes Article 194(3), a person may be expunged from publication of proceedings of an Assembly, and it would not amount to a complete violation of the Fundamental Right under Article 19(1)(a). After this judgement, in a Special Reference, No. 1 of 1964[14], it was observed that Article 194(3) was, in fact, subordinate to Articles 21, 32, 211 and 226.

In the case of Venkataramana Devaru v. State of Mysore[15], the Supreme Court, by applying the doctrine of harmonious construction, resolved the conflict between Articles 25(2)(b) and 26(b) of the Constitution. It held that every religious denomination or section had the right to manage its own religious affairs.

In Sirsilk Ltd. v. Govt. of Andhra Pradesh[16], disputes between the workmen and employer were referred to an industrial tribunal after the adjudication of which, the award was sent for publication. But before the publication could be done, the parties settled amongst themselves and jointly wrote a letter to the government, informing it about the settlement as well as for non-publication of the award. The government refused, and the parties moved to the High Court through a writ petition, which was also turned down. Ultimately, the parties moved to the Supreme Court through a special leave petition. The issue was that Section 17 of the Industrial Disputes Act, 1947, in regard to the award made by the tribunal and its publication, was only directory in nature, and not mandatory. The Court held that on reading Sections 17 and 17A, the duty of publishing the award was, in fact, mandatory. The Court went further and scrutinised Section 18 of the Act, and found that Sections 17 and 18 were opposing each other. Thus, the Court finally applied the doctrine of harmonious construction and held that if a settlement has been reached before the award is published, the government should refrain from publication of the award. This case clearly showed that how one provision can be affected without nullifying another provision of a piece of legislation.

In K. M. Nanavati v. State of Bombay[17], the Bombay High Court passed the sentence against the accused, leading the accused to approach the Governor, who passed an order of suspension against the High Court’s sentence. The matter reached the Supreme Court and it held that the power of granting suspension of the governor under Article 161 of the Constitution stands absolved if the matter becomes sub judice.

In Raj Krushna v. Binod Kanungo[18], provisions of the Representation of the People Act, 1951, were in dispute. Section 33(2) provides that a government servant could nominate or second any person in an election, whereas 123(8) provides that a government servant cannot assist any election candidate except when he casts his vote. The Court applied Doctrine of harmonious construction and held that a government servant had the powers under Section 33(2) and also the right to vote, but he could not assist any candidate in any other manner.

Conclusion

The duty to interpret statutes should be exercised with care and caution. The judiciary can always interpret any statute according to its will and wishes, but that would result in defeat of the powers of the legislature. It is also important to keep in mind that any interpretation or construction put forward must be clear and unambiguous, otherwise the whole purpose of the doctrine of harmonious construction would fail. The doctrine, to some extent, gives a free hand to the judges in the interpretation of statutes. Thus, it is a critical instrument that needs to be used effectively and only to reach the ends of justice and clarification. The rights and interests of the society should be protected at all costs.

In India, the judiciary is an independent body and exercises its powers vigilantly. Time and again, it has used the doctrine as an efficient tool in removing complexity in argumentative laws. The doctrine of harmonious construction gives a lot of scope to the legislature and is of much use in the present times due to increase in formulated laws.

[1] Re C. P. and Berar Act, AIR (1939) FC 1.

[2] AIR (1951) SC 455.

[3] Union of India v. B. S. Aggarwal, AIR 1998 SC 1537.

[4] Collector of Central Excise, Jaipur v. Raghuvar (India) Ltd., JT 2000 (7) SC 99.

[5] Iridium India Telecom Ltd. v. Motorola Inc., (2005) 2 SCC 145.

[6] J. K. Cotton Spinning and Weaving Mills Ltd. v. State of U.P., AIR 1961 SC 1170.

[7] Jagdish Singh v. Lt. Governor, Delhi, AIR 1997 SC 2239, p. 2242.

[8] Bihar State Co-operative Marketing Union Ltd. v. Uma Shankar Saran, AIR 1993 SC 1222, p. 1224.

[9] (2003) 3 SCC 57.

[10] Raj Krushna v. Binod Kanungo, 1954 AIR 202.

[11] Venkataramana Devaru v. State of Mysore, 1958 AIR 255.

[12] State of U. P. v. Renusagar Power Co., AIR 1988 SC 1737.

[13] AIR (1959) SC 395.

[14] AIR 1965 SC 745.

[15] Supra note 11.

[16] AIR 1964 SC 160.

[17] AIR 1961 SC 112.

[18] Supra note 10.

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Zara Suhail Ahmed

Zahra is a student at Aligarh Muslim University, pursuing a 5-year B.A. LLB course. Currently in her 4th year, Zahra opted for Law after completing most part of her schooling from Cambridge School, New Delhi. Zahra has interned under a few lawyers and firms, participated in various moot courts and similar events, and is proficient in research and written content. A strong believer that education is the greatest virtue, Zahra seeks to learn from every platform and individual, whether working alone or as a team. Although Zahra is keenly interested to pursue ADR (Alternate Dispute Resolution) as a career, she has kept her options open and is interested in examining the different career prospects that her profession has to offer. Zahra has diversified interests apart from her professional life as well. Not only a successful lawyer, but she also aspires to become a productive human being.

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