Doctrine of Harmonious Construction
INTRODUCTION Each human being residing in a society understands the value of law. Law may be understood as a tool to keep the society peaceful and problem free and to prevent conflicts between people by regulating their behaviour. The laws enacted to regulate the society are drafted by legal experts and it can very well be anticipated that many of the laws enacted will not be specific and will contain ambiguous words and expressions. Quite often we find that the courts and lawyers are busy in unfolding the meaning of such words and expressions and in resolving inconsistencies. All this has led to the formulation of certain rules of interpretation of statutes. We are all aware that the government has three wings, namely, the legislature, the executive and the judiciary. The role of interpretation of statutes comes into play and is of utmost importance for the judiciary to render justice correctly by interpreting the statutes in the way the situation demands. The doctrine of harmonious construction is adopted when there is conflict between two or more statues or part of statues of Indian constitution. The doctrine seeks to harmonize or resolve the conflict which may arise when one statue overlaps another, and both have their own interpretations and meanings. As per this doctrine the courts try to avoid conflicts between the provisions of the statutes. The doctrine follows a very simple rule that every statute has made for a purpose and specific intent as per law and it should be read and interpreted accordingly. Thus, the provisions are so interpreted that the conflict between the two statues or its provisions is avoided and each of them is given effect. For this purpose, the scope and meaning of one may be restricted to give meaning also to the other. So, the aim of the courts is: i)
An interpretation which makes the enactment consistent.
A construction which avoids inconsistency or repugnancy between the various sections or parts of the statute. However, in the case in which it shall be impossible to harmonize both the provisions, the court’s decision shall prevail. The doctrine of harmonious construction is one of the many statutory interpretation devised by the courts to avoid conflict between the statues. The other doctrines are Doctrine of Pith and Substance and Doctrine of Repugnancy, Doctrine of Colourable Legislation etc. The doctrine of harmonious construction seeks to harmonize the conflict between two statues whereas the doctrine of pith and substance relates to finding out the true nature of a statute, this doctrine is widely used when deciding whether a state is within its rights to create a statute that involves a subject mentioned in Union List of the Constitution. The basic idea behind this principle is that an act or a provision created by the State is valid if the true nature of the act or the provision is about a subject that falls in the State list and the doctrine of colourable legislation states that under the ‘colour’ or ‘guise’ of power conferred for one particular purpose, the legislature cannot seek to achieve some other purpose which it is otherwise not competent to legislate on.
Case Laws In Venkataramana Devaru v. State of Mysore , the Supreme Court applied the rule of harmonious construction in resolving a conflict between Articles25(2)(b) and 26(b) of the Constitution and it was held that the right of every religious denomination or any section thereof to manage its own affairs in matters of religion [Article 26(b)] is subject to a law made by a State providing for social welfare and reform or throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus [Article 25(2)(b)]. In M.S.M. Sharma v. Krishna Sinha, the same rule was applied to resolve the conflict between Articles 19(1)(a) and 194(3) of the Constitution and it was held that the right of freedom of speech guaranteed under Article 19(1)(a) is the read as subject to powers, privileges and immunities of a House of the Legislature which are those of the House of Commons of the United Kingdom as declared by the latter part of Article 194(3). But, about the above judgment, in Special Reference No. 1 of 196417, it was decided that Article 194(3) is subordinate to Articles 21, 32, 211 and 226. This conclusion was also reached by recourse to the rule of harmonious construction. The principle of harmonious construction has been applied in a vast number of cases in the construction of apparently conflicting legislative entries in Schedule VII of the Government of India Act, 1935 and the Constitution. In Calcutta Gas co.(proprietary) Ltd vs State of W.B, the supreme court said: it is also well settled that widest amplitude should be given to the language of the 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 the 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 sectors, to reconcile the respective powers they contain and to give effect to all of them. It is only when such a reconciliation proves impossible then and
only then should the over riding power of the union legislature, the non-
obstante clause, operate and the union power prevail. The principle of harmonious construction is also applicable in case of construction of provisions of subordinate legislation. An interesting question arose in the case of Sirsilk Ltd. v. Govt. of Andhra Pradesh. Certain disputes between the employer and the workmen were referred to an industrial tribunal. After adjudication, the tribunal sent its award to the government for publication. However, before the award was published, the parties to the dispute came to a settlement and accordingly, wrote a letter to the government jointly, intimating the fact that the dispute had been settled; hence the award shall not be published. On the government’s refusal to withhold the publication, the employer approached the High Court for a writ or direction to the government to withhold the publication The High Court rejected the writ petition as well as the writ arising therefrom. The parties then appealed by special leave to the Supreme Court. The main contention of the appellants was that Section 17 of the Industrial Disputes Act, 1947 is directory in nature and not mandatory. A mandatory statute or statutory provision is one which must be followed in order that the proceeding to which it relates may be valid.23 A directory statute or provision is one which need not be complied with in order that the proceeding to which it partakes may be valid.24 It is not always easy to determine whether a statute is mandatory or directory. If the provision involved relates to some immaterial matter, where compliance is a matter of convenience rather than substance, or directs certain actions with a view to the proper, orderly, and prompt conduct of public business, the provision may be regarded as directory, but where it directs, acts or the proceedings are required to be done in a certain way and indicates that a compliance of such provision is essential to the validity of the act of proceeding, or requires some antecedent and prerequisite conditions to exist prior to the
Constitution of India by V.N Shukla and Mahendra Pal
exercise of the power, or be performed before certain other powers can be exercised, the statute may be regarded as mandatory. Ordinarily the words ‘shall’ and ‘must’ are mandatory, and the word ‘may’ be directory, although they are often used interchangeably in legislation. The language of Section 17 was observed by the court. Section 17(1) states, ‘Every award shall within a period of thirty days from the date of its receipt by the appropriate government be published in such manner as the appropriate government thinks fit”. The use of the word ‘shall’, the court observed, is a pointer to Section 17(1) being mandatory in nature. Section 17(2) states, ‘Award published under sub-section (1) shall be final and shall not be called in question by any court in any manner whatsoever. Section 17A, of the Industrial Disputes Act, provides that the award under Section 17 becomes enforceable after thirty days of publication, though the government may declare certain contingencies in which it may not be enforceable. The court read Section 17 and Section 17A together and declared that the intention behind Section 17 is that the duty cast on the government to publish the award is mandatory and not directory. And hence, the contention of the appellants did not hold good. But on further observation, the court directed its attention to Section 18 of the Industrial Disputes Act. Section 18 (1) provides that a settlement arrived at by agreement between the employer and the workmen otherwise than during conciliation proceeding shall be binding on the parties to the agreement. Section 18 (2) provides that an award which has become enforceable shall be binding on all parties to the industrial dispute and others. The second contention of the appellant was that the main purpose of the Industrial Disputes Act is to maintain peace between the parties in an industrial concern. Therefore, in the present case, since the parties have already come to a settlement under Section 18 (1), the dispute between them comes to an end. Thus, the settlement arrived at should be respected and industrial peace should not be allowed to be disturbed by the publication of the award which might be different from the settlement. The court then referred to the case of State of
Bihar v. D.N. Ganguly where a settlement had been arrived at between the
parties and the industrial dispute was pending before the tribunal. The only remedy for giving effect to such a settlement would be to cancel the reference. The decision given in this case directed the tribunal to make the award in accordance with the settlement arrived at between the parties. The Supreme Court observed that in the present case, there is a conflict between settlement under Section 18 and the duty of the government under Section 17 of the Industrial Disputes Act, 1947. The reference to the tribunal is for resolving the dispute that may have arisen between the employers and the workmen. Where a settlement is arrived at between the parties to the dispute before the tribunal, after the award has been submitted to the government but before its publication, there is no dispute left to be resolved by publication. So, the government should refrain from publishing the award. Wanchoo J. observed, ‘It is clear, therefore, reading Section 17 and Section 17A together that the intention behind Section 17 (1) is that a duty is cast on the government to publish the award within 30 days of its receipt and the provision for publication is mandatory and not merely directory.’ Though the Supreme Court maintained that Section 17 (1) is mandatory, and ordinarily the government has to publish an award sent to it by the tribunal, in special circumstances of the case and with a view to avoid a conflict between a settlement binding under Section 18 (1) and an award binding under Section 18 (3) on publication, it held that the only solution is to withhold the publication of the award as this would not in any way affect the mandatory provision of Section 17 of the Industrial Disputes Act, 1947. Thus, in the above case, the principle of harmonious construction was employed. The Supreme Court’s decision is a fine example of how the provisions of one section can be enforced without rendering the provision of another section of the statute dead or useless. Under labour law, settlement between the parties is
Constitution of India by M.P Jain
given more importance than an award announced by a tribunal. In the present case, since it was an exceptional circumstance, the publication of the award was withheld. The restrain on the government to not publish the award ensured that the objective of the Industrial Disputes Act, 1947 i.e. to maintain peace between the parties, was not defeated and the mandatory nature of Section 17 of the Act was also not destroyed. This case is an example of the use of the principle of harmonious construction in a situation where two provisions in the same statute conflict with each other. D.A.V. College, Bhatinda, etc. Vs. The State of Punjab and Ors., The Petitioners are educational institutions founded by D.A.V. College Trust and Society registered under the Societies Registration Act as an association comprised of Arya Samajis. These Colleges were affiliated to the Punjab University before the reorganization of the State of Punjab in 1966. The University had been constituted in 1961; it was given jurisdiction over a radius of 10 miles from the office of the University at Patiala which seat had earlier been notified as a Seat of the University. As the Writ Petitioners were not within the 10 miles radius of the University they continued to be affiliated to the Punjab University. After the reorganization the Punjab Government by Notification issued under Sub-section (1) of Section 5 of the Act specified the Districts of Patiala, Sangrur, Bhatinda and Rupar as the areas in which the University exercised its power and under Sub-section (3). The effect of this Notification was that the Petitioners were deemed to be associated with and admitted to the privileges of the University and ceased to be associated in any way with or to be admitted to any privileges of the Punjab University. It may also be mentioned that the Central Government by a Notification in exercise of the powers conferred on it by Section 72 of the Reorganization Act directed that the Punjab University constituted under the Punjab University Act 1947 shall cease to function and operate in the areas of the very four Districts regarding which the Punjab Government had earlier issued a Notification under Section 5 of the Act. Thereafter the University by the impugned Circular issued to all the
Principals of the Colleges admitted to the privileges of the University declared that Punjabi “will be the sole medium of instruction and examination for the pre-University even for Science group with effect from the Academic Session 1970-71″. Later the University by a letter informed the Principals that a decision of the Senate Sub-Committee as enclosed therewith were made giving “relaxation in some special cases of pre-University students seeking admission for the year 1970″. This enclosure was in Punjabi, an English translation of which would show that the relaxation was to permit students who had passed their matriculation examination with English as their medium of examination to be taught and to answer examination papers in the English medium at preUniversity level „only so long as the other Universities and School bodies of Punjab did not adopt Punjabi as their medium of instruction‟. The University made a further modification and it was decided by the Senate “that English be allowed as an alternative medium of examination for all students for the courses for which the University had adopted the regional language as the medium. It was however understood that qualifying in the elementary Punjabi paper would, as already decided by the University be obligatory in the case of such students offering English medium as had not studied Punjabi as an elective or optional subject even up to the middle standard”. It is alleged that as a result of these Notifications and resolutions of the University the Petitioners Colleges have to teach all subjects including Science subjects in Punjabi and their students have to write examinations in the Gurumukhi script. The university issued to make Punjabi in Gurumukhi script as the sole and exclusive medium of instruction and examination for certain courses. The main contention of the Petitioners however, was that Section 4(2) of the Act does not empower the University to make Punjabi the sole medium of instruction; that it is not within the legislative power of the State under Entry 11 of List II to make Punjabi the sole medium of instruction, which power in fact vested in the Union Parliament under entry 66 of List I and that consequently the provisions of Section 4(2) and the
Notification and the Circulars referred to above are ultra vires and un Constitutional. In so far as the medium of instruction in Punjabi with Gurumukhi as the script is sought to be imposed on the educational institutions established by the Arya Samajis a religious denomination, they also offend Article 26(1), 29(1) and 30(1) of the Constitution. The main ground of attack by the Petitioners is that Section 4(2) of the Act does not confer a power on the University to make Punjabi the sole medium of instruction and if it does, then the State legislature has no competence to enact such a provision because that power is vested in the Union Parliament under item 66 of List 1. The Supreme Court declared that it violated the right of Arya Samajists to use their own script in colleges run by them and compulsorily affiliated to the University. The court emphasized that if the University compulsorily affiliated minority colleges to itself and prescribes the medium of instruction and examination to be in a language which is not their mother tongue, or requires examination to be taken in a script which is not their own, then it would interfere with their fundamental rights. No linguistic minority can, of course, insist that a university must conduct its examination in the language or script of the minority, but, at the same time, the University also cannot force the minority institution to compulsory affiliated themselves to it and impose on them a medium of instruction which is different from the minorities‟ language or script. The State has to harmonise its power to prescribe the medium of instruction with the rights of the religious or linguistic minorities have the medium of instructions and script of their own choice. The State can therefore either provide for instruction in the media of these minorities, or allow their institution to get affiliated to such other University outside the State as have same media of instruction as the minority institutions.
Conclusion The courts in every case harmonize the contradictory provisions by interpreting not only the provisions but also the original intention of the law or rule maker in order to give effect to both the provisions and ensure not to make any of the two provisions void or to destroy it.