This article is written by Ashutosh Singh, a student at Amity law school, Kolkata. The article explains the doctrine of harmonious construction with the use of many case laws. 

This article has been published by Sneha Mahawar.

Introduction

A legal doctrine is a principle, a theory, or a position that is commonly applied and upheld by the courts. Different judicial doctrines have developed over time in the Indian constitutional law based on different judicial interpretations by the judiciary. These legal concepts did not form or take place at once but they are a result of disagreements, unrest, debates, and legislative solutions, and require improvement. These situations arise when the statutes and their provisions have more than one interpretation because of an ambiguity in the law. After the statute has been enacted, the legislature becomes functus officio (no longer has jurisdiction). The interpreters of the law are then unable to question or get back to the legislature to request the exact interpretation of the legislation while they were making it. Sometimes the lawmakers may not have considered such a broad range of circumstances when drafting any given statute. The thumb rule for interpreting any statute is then the rule of harmonious construction.

The doctrine of harmonious construction is followed when there arises an inconsistency between two or more statutes or sections of a particular statute. The fundamental principle behind this doctrine is, a statute has a legal purpose and should be read in its totality and after that, the interpretation that is consistent with all the provisions of that statute should be used. In a situation where harmonizing all clauses is unlikely the court’s decision on the provision then takes precedence. 

The history behind the doctrine of Harmonious Construction

The doctrine of harmonious construction came into existence as a result of many varied court interpretations of different statutes in a variety of cases. From time to time, the judiciary decided matters that involved opposition between two distinct provisions. This doctrine came cloaked as the rule of conciliation first in the case of C. P. and Berar Act (1939), where the involved court resolved the inconsistency between an entry of List I, and an entry of List II in the Indian Constitution and interpreted them harmoniously.

In the aforesaid case, the question was whether a tax imposed by a provincial legislature on the sale of oil by a person who manufactured it, based on the ground that it was actually an excise duty. Then, a sales tax could be imposed by a provincial legislature, and excise duty could be imposed only by the union legislature. The Apex Court, in this case, remarked that it would be peculiar if the Union had exclusive power to tax retail sales when the province had executive power to make laws with respect to trade and commerce, its production and supply, and the distribution of goods within its boundaries. Hence, it was a sales tax and the Act was not ultra vires. The Court added that there was no overlapping or conflict of two entries, so as to apply a non-obstante clause. 

The doctrine’s conception can be tracked all the way back to the first amendment to the Constitution of India, 1951, in the landmark judgement of Sri Shankari Prasad Singh Deo v. Union of India (1951). The disagreement between the Fundamental Rights (Part III) and the Directive Principles (Part IV) of the Constitution of India was the subject of the case. Constitutional law is mainly concerned with the creation of the three great organs and the distribution of governmental powers among them, that is the executive, the legislature and the judiciary.

The Apex Court, in this case, made use of the rule of harmonious construction and held that Fundamental Rights are granted against the State and they may be revoked only under certain circumstances and even modified by the Parliament to comply with the constitutional provisions. The Supreme Court gave preference to both and said that the Fundamental Rights and Directive Principles of State Policy are two sides of the same coin, and it is beneficial that they must work together. The Supreme Court further held that the Fundamental Rights enforce limitation over both the legislature and executive power. They are not sacrosanct and the Parliament can amend them to bring them in conformity with the Directive Principles. 

The Supreme Court articulated the doctrine of harmonious construction in the case, Re Kerala Education Bill Case (1957). The court added that there was no inherent conflict between the Fundamental Rights and the Directive Principles of the State Policy and they together constitute an integrated scheme and a comprehensive administrative and social programme for a modern democratic state. The court called them supplementary and complementary to each other. Therefore, effort should be put to construe them harmoniously, so that the courts avoid any conflict among the Fundamental Rights and Directive Principles. They basically run parallel to each other and neither one is subordinate to the other.

Scope and objective of the doctrine of Harmonious Construction

The aim of the judiciary and the courts should be to view the law as a whole. The interpretation of the law should be such that it prevents confusion or incompatibility between the different sections or parts of the statute being used. Whenever a discrepancy arises between two or more statutes or different clauses or sections of a statute, the doctrine of harmonious construction must be followed. The doctrine is based on the straightforward principle that every statute has a legal purpose and should be read in totality. The interpretation should be such that it is unswerving and all of the statute’s provisions should be used. In the event that harmonizing two or more statutes or different clauses or sections of a statute is unlikely, the court’s decision on the provision would take precedence. 

Latin maxims related to the doctrine of Harmonious Construction

Generalia specialibus non derogant

The Latin maxim means that the courts prefer specific provisions to provisions of general application whenever the provisions are in conflict. In other words, the general rule to be followed in case of a conflict between two statutes is that the latter retracts the previous one. One cannot hold that previous or special legislation indirectly repealed, altered or consider it in derogated from, simply by force of such general words, without any suggestion of that particular intention to do so. This means that a prior special law would yield to a later general law if two of the following conditions are satisfied, the later law, even though general, would prevail if:

  • The two provisions are conflicting with each other.
  • There is some express reference in the later legislation of the previous enactment.

Generalibus specialia derogant

Generalibus specialia derogant is another legal maxim used in connection with the harmonious construction rule in India. It basically means that special things detract from general things. In other words, if a special provision is made on a certain matter, then that matter is excluded from the general provisions. Applying this rule, the Patna High Court held in its judgement, Vinay Kumar Singh v. Bihar State Electricity Board (2003) that Article 351 of the Constitution of India is a general provision regarding the development of Hindi in India. Article 348 on the other hand, is a specific provision with respect to the language to be used in the Supreme Court and the high courts. Therefore, the applicability of Article 351 of the Constitution is entirely precluded. 

Principles that govern the doctrine of Harmonious Construction

Commissioner of Income Tax v. M/S Hindustan Bulk Carriers (2000)  is a landmark case where the Supreme Court laid down five main principles that govern the rule of harmonious construction that are as follows:

The courts should try and avoid a conflict of seemingly disputing provisions and effort must be made to construe the disputing provisions so as to harmonize them.

  • The provision of one section cannot be used to overthrow the provision covered in another section unless the court is unable to find a way to settle their differences despite all its effort. 
  • In the situation when the court finds it impossible to entirely reconcile the differences in inconsistent provisions, the courts must interpret them such that effect is given to both the provisions as far as possible.
  • Courts must also take into account that the interpretation that makes one provision redundant and useless is against the essence of harmonious construction.
  • Harmonizing two contradicting provisions means not to destroy any statutory provision or to render it ineffective.

Application of the doctrine of Harmonious Construction

The Courts have articulated some procedures for the proper applicability of the aforesaid doctrine after reviewing numerous case laws. They are as follows:

  • Giving equal importance to both the conflicting provisions, thus reducing their inconsistency.
  • The provisions that are fundamentally inconsistent or repugnant to each other must be read in their entirety, and the complete enactment must be taken into account.
  • The provision with a broader reach of the two contradicting provisions should be considered.
  • Comparing the broad and narrow provisions, the courts should analyse the broad law to see if there are any other concerns. No further thought needs to be given if the result is fair and harmonizing both clauses can be done by giving them full weight separately. This is because the legislature was well aware of the situation they were attempting to address when enacting the provisions, and hence all provisions adopted must be given full effect.
  • When one provision of the Act slivers, the powers conferred by another Act then a non-obstante clause must be used. 
  • It is significant that the court establishes the degree that the legislature wanted to grant one provision overriding authority over another. 

Case laws explaining the application of the doctrine of Harmonious Construction

Following are some famous Indian case laws where the courts have tried to interpret certain statutes with the help of applying the rule of harmonious construction. 

Sri Jagannath Temple Managing Committee v. Siddha Math and Others (2015)

In this case, provisions of the Sri Jagannath Temple Act,1955 and the Orissa Estate Abolition Act, (OEA) 1951 came into scrutiny. The Supreme Court said that a clear conflict arose between Section 2(oo) of the Orissa Estates Abolition Act,1951 and Sections 5 and 30 of the Shri Jagannath Temple Act, 1955. The Court added that it was also clear that both the given statutory provisions of the aforementioned Acts cannot survive together. The Court said that while using the rule of harmonious construction it should be taken into account that when the provisions of two statutes are irreconcilable, one must decide which provision must be given effect to. 

In this case, Section 2(oo) of the OEA Act in its entirety was not violating the provisions of Sri Jagannath Temple Act. It was only the first part of the proviso which was contradicting the Jagannath Temple Act. If that part of the proviso continued to be given effect then Sections 5 and 30 of the Jagannath Temple Act, by which the estates of the Jagannath temple at Puri are entrusted in the temple committee, would then lose their meaning. The Court further explained that by striking down Section 2(oo) proviso of the OEA Act, both the provisions would be operable. Whenever a question comes up about the application of specific and general laws in the same case then the nature of the case and the issues must be scrutinised by the court concerned. If, however, the two laws are in absolute conflict, then there must be a check on the limitations placed and exceptions foisted by the Legislature.

The Apex Court held that the special provisions of the Jagannath Temple Act would prevail in this case, and thus, the principle of generalia specialibus non derogant was applied.

Venkataramana Devaru v. State of Mysore (1957)

In this case, the trustees of an ancient, renowned temple of Sri Venkataramana filed a suit under Section 92 of the Code of Civil Procedure, 1908 (CPC) against the exclusion of Harijans from entering into Hindu temples after the passing of the Madras Temple Entry Authorization Act (Madras V of 1947). The trustees made a representation to the Government that the temple was a private one and founded exclusively for the Gowda Saraswath Brahmins, and, therefore, outside the operation of the Madras Temple Entry Authorization Act. However, the Government did not accept that position and held that the said Act applied to the temple.

The trustees argued that the temple was not defined under Section 2(2) of the Madras Temple Entry Authorization Act and Section 3 of the Act was void because it was offensive to Article 26(b) of the Constitution of India. Thus, an appeal was made to the Trial Court which gave a decision against the appellants. But the High Court of Madras passed a limited decree in the favour of the appellants stating that although the public, in general, were entitled to worship in a temple, the appellants had a right to exclude the general public during certain ceremonies in which only the members of the Gowda Saraswath Brahmins alone were entitled to participate. Dealing with the controversy that Section 3 of the Madras Temple Entry Authorization Act was in violation of Article 26(b) of the Indian Constitution, the High Court held that a denominational institution is also a public institution, Article 25(2)(b) of the Constitution would apply, and therefore, all classes of Hindus were entitled to enter into the temple for worship.

The Court further added that Article 25(1) of the Constitution deals with the rights of individuals and Article 26(b) with the rights of religious denominations. However, Article 25(2) covers a much wider ground and controls both the Articles. Article 26(b) must, therefore, be read keeping in mind Article 25(2)(b) of the Constitution.

The decision by the Supreme Court clarified the challenge in the interpretation of Section 2(2) and Section 3 of the Madras Temple Entry Authorisation Act (V of 1947) while also laying clearly the concepts pertaining to the matter of religion and harmonisation of irregularities arising at the time of interpretation of Article 25(2)(b) and Article 26(b) of the Indian Constitution. The Apex Court dismissed both the appeal and the application for special leave to appeal.

State of Rajasthan v. Gopi Kishan Sen (1992)

The respondent, in this case, was appointed as an untrained teacher in Rajasthan in 1972. The State of Rajasthan, who is the appellant, in this case, refused him his claim of salary on the pay scale of Rs. 160-360/- per month. The respondent then made an application under Article 226 of the Constitution of India in the High Court of Rajasthan which was allowed by the impugned judgement. However, the pay scale of Rs. 160-360/-  per month was given only to trained teachers. The respondent was not a trained teacher and hence, he was appointed at a fixed salary of Rs. 130/- per month until he became trained which comes under the provisions of the Rajasthan Civil Services (New Pay Scales) Rules, 1969 that is read with Rajasthan Education Subordinate Service Rules, 1971

The pay scales, however, have been revised subsequently. The amount of Rs. 130/- per month was fixed as the salary of the untrained teacher and this provision was struck down by the High Court in part, considering it to be illegal discrimination. Accordingly, the appellant was asked to pay the respondent his salary at the higher rate for the period of 1972 to 1982 and this was challenged on behalf of the appellant as flawed.

When the case reached the Supreme Court, the Court observed that the rule of harmonious construction of seemingly contradictory statutory provisions is well recognized for as far as it may be possible to uphold and give effect to all the provisions and avoid the interpretation which may render any of them powerless. 

Rule 29 of the Rajasthan Services Rules, 1951 dealing with the increment in pay scale is in general terms, while the schedule in the Rajasthan Civil Services (New Pay Scales) Rules, 1969 has a special provision overseeing the untrained teachers. This case thus attracts the maxim ‘generalibus specialia derogant’ because when a special provision is made on a certain subject then that subject is excluded from the general provision. 

Unni Krishnan, J.P., etc. v. State of Andhra Pradesh and Others (1993)

The case of Unni Krishnan was momentous with respect to the Right to education in India as it contested the question of the ‘Right to life’ as provided under Article 21 of the Constitution of India. Article 21 guarantees every citizen a right to education. The issues which came before the Apex Court were, whether a citizen has a Fundamental Right to education for professional degrees like medicine, engineering etc. and whether our Constitution guarantees the right to education to all its citizens.

A writ petition was filed challenging whether the ‘Right to life’ under Article 21 also covers and guarantees the right to education to all the citizens of India, and the right to education here also includes professional education or degree.

The Supreme Court held that the right to basic education was inferred by the: Right to life under Article 21 when read with Article 41 of the directive principle on education. The Court also referred to Article 45 and inferred that there is no fundamental right to education for a professional degree that emanates from Article 21. On the issue of the prevalence of Fundamental Rights over Directive Principles of State Policy (DPSP), the Court commented that the provisions of Part Three and Part Four are supplementary and complementary to each other and that the Fundamental Rights and Directive Principles should be interpreted harmoniously as they form the social conscience of the Indian Constitution.

Sirsilk v. Government of Andhra Pradesh (1963)

In this case, the Sirsilk Company entered into a dispute with the Government of Andhra Pradesh and their employees. The dispute was also taken to an Industrial Tribunal. After deciding on it, the authority delivered its award in September 1957 after which it was to be published in the Official Gazette of the Government of Andhra Pradesh. But the corporation and the employees jointly asked not to publish the award because they had already resolved their disagreement amicably. The Government declined to acknowledge the appeal of the parties after which the parties lodged a writ application with the High Court, for issuance of an order to the government for stopping them from publishing the issue of the award in a publication. The High Court rejected the writ application and said that it was mandatory under Section 17 in the Industrial Disputes Act, 1947 and the government should not withhold the publication of an award submitted to it by the Industrial Tribunal. The appeal by the Sirsilk Company was then filed in the Supreme Court by the parties. 

The corporation and the employees submitted that since both the parties signed a resolution that is binding to them under Section 18(1) of the Industrial Dispute Act, the government’s award under Section 17(1), is daunting on the group and it should not be released. The resolution agreed by the parties should be observed and the industrial peace preserved. The Government on the other hand quoting the mandatory nature of Section 17(1) of the Industrial Dispute Act said that the award had to be issued within 30 days of receipt of the same. The objective of the reference to the Tribunal is to settle disputes and when a resolution is reached between the parties then the question of the award for publication, issued by the Tribunal appears to be illogical and has no essence since there is no conflict left to be resolved by publication of the award. 

The Supreme Court observed that there is a difference of opinion between Section 17 and Section 18 of the Act and it is important to find a remedy that preserves the primary spectrum of the Industrial Dispute Act.  The Supreme Court held that the only way to resolve the two contradictory clauses of such a case is to allow the Government to withdraw the publication of the award and to permit the parties to continue with their resolution. The Supreme Court said that while Section 17 and Section 18 of the Act were mandatory, in spite of the fact that the parties have already settled their dispute amicably by agreement, in the present case, no dispute remained to be resolved by the publication of the award, and hence, the Apex Court directed the Government not to publish the award in compliance with Act 17(1) and the appeal was approved. 

This decision of the Supreme Court is a perfect example of how one provisions’ rules can be applied without rendering meaningless or obsolete another provision of the law. 

K.M. Nanavati v. The State of Maharashtra, (1961)

This is one of the most famous cases in Indian legal history and the jury trials were abolished after this case in India. A Navy Commander KM Nanavati was accused of murdering his wife’s secret lover, Prem Ahuja, and as a result, was held guilty under Section 302 of the Indian Penal Code. 

He was charged under Section 302 and Section 304 of the IPC and the trial was held by a Sessions Judge, Bombay and the special jury held him not guilty under both the sections involved under IPC. However, the Sessions Judge was dissatisfied with the jury’s decision as he felt that it was not a logical decision taking into view the evidence of the case. So, he took the case to the High Court of Bombay under Section 307 of the Code of Criminal Procedure, 1973 giving reasons for his views. The High Court approved the reasoning of the Sessions Judge. The High Court said that taking into account the circumstances of the case, the offence could not be reduced from murder to culpable homicide not amounting to murder. The High Court held Nanavati guilty of the offence of murder and this decision was further challenged in the Supreme Court. In the meantime, the Governor of Bombay by the use of power vested in him under Article 161 of the Constitution of India passed an order for the suspension of Nanavati.  

The decision of the Governor was questioned because when the suspension was ordered the case was sub-judice under the Supreme Court. Applying the principle of harmonious construction to settle the conflict that arose between the executive and the judiciary, the Supreme Court held that Article 161 and the suspension by the Governor was not applicable when the case was sub-judice.

Calcutta Gas Company Private Limited v. State of West Bengal (1962)

Oriental Gas Company Act,1960 was passed by the State Legislative Assembly of West Bengal. The appellant, in this case, challenged the validity of this Act on the grounds that the State Legislative Assembly had no power to pass such an Act under Entry 24 and Entry 25 (Constitution of India, List II) of the State since the Government wanted to take over the management of the company. The appellant reasoned that the Parliament had already enacted the Industries Development and Regulation Act, 1951 under Entry 52 of the Union list/List I,  which dealt with industries.

Entire industries in the State List are covered under Entry 24, and Entry 25 is only limited to the gas industry. The Supreme Court in this case used the rule of harmonious construction and held that it was clear that the gas industry was covered completely by Entry 25 of the State List over which the State had full control. Therefore, the state had the power to make laws in this regard. Therefore, with the help of the rule of harmonious construction, the Supreme Court expressed that the gas industry came under Entry 25 which is a part of the State List,  and this gives the State full control over it.

Conclusion

The judiciary and the courts in India are making all efforts to protect and maintain the object of every provision of the Indian Constitution by using the doctrine of harmonious construction as one of the tools. Using the principle of harmonious construction, the Indian Judiciary has tried to explain the intention or objective of the framers of the Constitution for framing the different statutes. The rule of harmonious construction brings consistency between different conflicting provisions so that none of them is rendered powerless or dead-letter as there has been considerable thought by the legislature in making them.  Through the analysis of the different cases in this article, it can be concluded that the principle of harmonious construction or interpretation is an effective tool of interpretation used by the Indian courts to not only resolve conflicts but also to make important decisions on subject matters of different lists. 

References


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