Rule of Harmonious Construction: Explained

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Abstract

Even when his legislature drafts legal guidelines with utmost care and precision, preserving in thought all the Present conditions and the future situations that would possibly arise, regularly there are instances when an unexpected state of affairs would possibly come up. But sometimes, the legislature purposely leaves lacunae in the law, both due to the fact of lack of frequent consensus in the Parliament or due to the fact it feels that the prison coverage can be applied higher if determined on a case via case basis. Because of these Reasons, a want for interpretation and building of statutes and their provisions arises. There are many policies for the judiciary to adhere to at some point of the interpretation and building of statutes and the doctrine of the rule of harmonious building is one of them. This essay tries to explain the notion and ideas of the doctrine of harmonious building and illustrate its use with many examples.

INTRODUCTION

Each individual living in a general public comprehends the estimation of law. Law might be comprehended as a apparatus to keep the general public tranquil and issue free and to forestall clashes between individuals by managing their conduct. The laws established to manage the general public are drafted by legitimate specialists furthermore, it can in all likelihood be foreseen that a considerable lot of the laws authorized won’t be explicit and will contain questionable words and articulations. Regularly we find that the courts and legal counselors are occupied in unfurling the importance of such words and articulations and in settling irregularities. This has prompted the detailing of specific principles of translation of rules. We are for the most part mindful that the administration has three wings, to be specific, the assembly, the official and the legal executive. The job of translation of resolutions becomes possibly the most important factor and is of most extreme significance for the legal executive to render equity effectively by deciphering the resolutions in the manner the circumstance requests. This article will concentrate on the standard of precept of agreeable development in the understanding and development of rules.

Rule of Harmonious Construction explained:

According to this rule, a statute should be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute. Such an interpretation is beneficial in avoiding any inconsistency or repugnancy either within a section or between a section and other parts of the statute. The five main principles of this rule are:

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. [1]

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 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. [2]

4) Courts must also keep in mind that interpretation that reduces one provision to a useless number or dead is not harmonious construction[3].

5) To harmonize is not to destroy any statutory provision or to render it fruitless.

A familiar approach in all such cases is to find out which of the two apparently conflicting provisions is more general and which is more specific and to construe the more general one so as to exclude the more specific. The question as to the relative nature of the provisions, general or special, has to be determined with reference to the area and extent of their application either generally or specially in particular situations. This principle is expressed in the maxims Generalia specialibus non derogant and Generalia specialibus derogant. The former means that general things do not derogate from special things and the latter means that special thing derogate from general things. The rule of harmonious construction can also be used forresolving a conflict between a provision in the Act and a rule made under the Act. Further this principle is also used to resolve a conflict between two different Acts and in the making of statutory rules and statutory orders. But in case there are two remedies for a situation, one general and one specific, and both are inconsistent with each other, they continue to hold good for the concerned person to choose from, until he elects one of them.

Examples from case laws:

In Venkataramana Devaru v. Province of Mysore[4] , the Supreme Court applied the standard of amicable development in settling a contention between Articles 25(2)(b) and 26(b) of the Constitution and it was held that the privilege of each strict category or any segment thereof to deal with its own undertakings in issues of religion [Article 26(b)] is dependent upon a law made by a State accommodating social government assistance and change or tossing open of Hindu strict foundations of a open character to all classes and segments of Hindus [Article 25(2)(b)].

In M.S.M. Sharma v. Krishna Sinha[5], a similar principle was applied to determine the contention between Articles 19(1)(a) and 194(3) of the Constitution and it was held that the privilege of opportunity of discourse ensured under Article 19(1)(a) is the perused as subject to forces, benefits and insusceptibilities of a House of the Legislature which are those of the House of Commons of the Joined Kingdom as proclaimed by the last piece of Article 194(3).

In any case, concerning the above judgment, in Special Reference No. 1 of 1964[6], it was concluded that Article 194(3) is subordinate to Articles 21, 32, 211 and 226. This end was likewise reached by plan of action to the standard of agreeable development.

Also read: #MeToo Movement

The guideline of agreeable development has been applied in countless cases in the development of clearly clashing administrative passages in Schedule VII of the Government of India Act, 1935 and the Constitution.

A significant inquiry with respect to the intensity of courts to choose an issue of benefit concerning a report identifying with issues of State was replied by the Supreme Court by fitting  Areas 123 and 162 of the Indian Evidence Act, 1872[7].The affirmation of the Head of the

Division or the Minister isn’t decisive that a specific record identifies with the undertakings of the State. The assessment of the Head of the Department or the Minister is available to legal audit furthermore; if fundamental the court can assess the report. In settling on the topic of benefit the court needs to adjust the open intrigue which requests the retention of the archive against the open enthusiasm for the organization of equity that the courts ought to have fullest conceivable access to every single applicable material and in the resident’s privilege of data under Article 19(1)(a) of the Constitution[8].

The standard of amicable development is likewise pertinent if there should be an occurrence of development of arrangements of subordinate enactment.

A fascinating inquiry emerged on account of Sirsilk Ltd. v. Govt. of Andhra Pradesh[9]. Certain questions between the business and the laborers were alluded to a mechanical court. After settling, the court sent its honor to the administration for production. Notwithstanding, before the grant was distributed, the gatherings to the question went to a settlement and as needs be, composed a letter to the legislature together, hinting the way that the debate had been settled; consequently the grant will not be distributed. On the administration’s refusal to retain the production, the business moved toward the High Court for a writ or course to the administration to retain the distribution.

The High Court dismissed the writ appeal just as the writ emerging in this manner.

The gatherings at that point bid by uncommon leave to the Supreme Court.

The fundamental conflict of the appellants was that Section 17 of the Industrial Disputes Act, 1947 is registry in nature and not obligatory.

Ordinarily the words ‘shall’ and ‘must’ are mandatory, and the word ‘may’ is directory, although a mandatory statute or statutory provision is one which must be followed in order that the proceeding to which it relates may be valid.[10] 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.[11] It is not always easy to determine whether a particular 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 exercise of the power, or be performed before certain other powers can be exercised, the statute may be regarded as mandatory.[12]

They are often used interchangeably in legislation.

The language of Section 17 was seen by the court. Segment 17(1) state, ‘Each grant will inside a time of thirty days from the date of its receipt by the fitting government be distributed in such way as the suitable government thinks fit”. The utilization of the word ‘will’, the court watched is a pointer to Section 17(1) being obligatory in nature.

Area 17(2) states, ‘Grant distributed under sub-segment (1) will be conclusive and will not be called being referred to by any court in any way at all.

Segment 17A, of the Industrial Disputes Act, gives that the honor under Section 17 becomes enforceable following thirty days of distribution; however the administration may announce certain possibilities in which it may not be enforceable.

The court read Section 17 and Section 17A together and proclaimed that the expectation behind

Segment 17 is that the obligation cast on the administration to distribute the honor is compulsory and not index. Also, subsequently, the conflict of the appellants didn’t hold great. But on further observation, the court directed its attention to Section 18 of the Industrial Disputes Act.

Segment 18 (1) gives that a settlement showed up at by understanding between the business and the laborers in any case than over the span of placation continuing will be authoritative on the gatherings to the understanding. Segment 18 (2)  gives that an honor which has gotten enforceable will be authoritative on all gatherings to the modern debate and others.

The second conflict of the appealing party was that the principle reason for the Industrial Disputes Act is to keep up harmony between the gatherings in a mechanical concern. In this manner in the current case, since the gatherings have just gone to a settlement under Section 18 (1), the debate between them reaches a conclusion. Along these lines, the settlement showed up at ought to be regarded and modern harmony ought not to be permitted to be upset by the distribution of the honor which may be extraordinary from the settlement

The court at that point alluded to the instance of State of Bihar v. D.N. Gangly [13] where a settlement had been shown up at between the gatherings and the mechanical contest was pending before the council. The main solution for offering impact to such a settlement is drop the reference. The choice given for this situation guided the court to make the honor as per the settlement showed up at between the gatherings.

The Supreme Court observed that in the present case, there is a conflict between settlements under  Area 18 and the obligation of the administration under Section 17 of the Industrial Disputes Act,1947. The reference to the council is to determine the question that may have emerged between the businesses and the laborers. Where a settlement is shown up at between the gatherings to the question before the court, after the honor has been submitted to the legislature yet before its production, there is no debate left to be settled by distribution. So the legislature ought to avoid distributing the honor.  

Wanchoo J. watched, ‘It is clear, in this way, perusing Section 17 and Section 17A together that the goal behind Section 17 (1) is that an obligation is thrown on the administration to distribute the honor inside 30 days of its receipt and the arrangement for distribution is obligatory and not only registry.’

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 casemand 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.

In this manner, in the above case, the guideline of harmonious construction was utilized. The Supreme Court’s choice is a fine case of how the arrangements of one segment can be authorized without rendering the arrangement of another segment of the resolution dead or futile. Under work law, settlement between the gatherings is given more significance than an honor declared by a council.

In the current case, since it was an outstanding situation, the distribution of the honor was retained. The limit on the legislature to not distribute the honor guaranteed that the goal of the Industrial Disputes Act, 1947 for example to keep up harmony between the gatherings, was not vanquished and the obligatory idea of Section 17 of the Act was likewise not wrecked. This case is a case of the utilization of the guideline of   harmonious construction a circumstance where two arrangements in the same resolutions are in strife with one another.

A further model can be found in Cantonment Board, Mhow v. M.P. State Road Transport Organization[14], where Section 6 of the Madhya Pradesh Motor Vehicles Taxation Act, 1947 was deciphered. Area 6 disallows a nearby position to force “an assessment cost or permit expense in regard of a engine vehicle”. Area 3(1) of the Taxation Act approves inconvenience of an assessment on “engine vehicles utilized or saved for use” at the predetermined rates. Segment 127(1)(iii) of the Madhya Pradesh Districts Act, 1961 approves inconvenience of assessment on “vehicles entering the constraints of the region”. On a correlation of the two Acts, the Supreme Court held that on agreeable development of the two Acts, the restriction in Section 6 of the Taxation Act identified with an expense on vehicles utilized or saved for use which could be required under Section 3(1) and not the passage charge which could be forced by a region under Section 127(1)(iii) of the Municipalities Act.

Steps for employing the doctrine of harmonious construction:

From the above illustrations we can see that the principle of harmonious construction for its Application requires the following four steps:

(I) that both the arrangements which are clashing or are repulsive to one another must be peruse all in all regarding the whole authorization being referred to.

ii) Give full impact to them two and afterward decrease the contention.

(iii) Out of the two clashing arrangements pick more extensive and smaller extent of these two independently and,

(iv) From the more extensive arrangement, take away the thin and see the outcome. On the off chance that the outcome is as sensible as to fit both the arrangements and it gives their full impact independently, no further request is required. While doing such harmonization one thing must be remembered that the whole establishment is the result of the equivalent creator, i.e., the assembly and it is absolutely assumed that the council while authorizing the arrangements of a resolution was completely alert about the circumstance which entered to spread and consequently all arrangements instituted require to be given their full impact in scope.

At the point when one segment of an Act removes what another gives, a non-obstante condition must be utilized[15]. Without a non-obstante condition in such a case, a head on conflict will happen. It is the obligation of the court to dodge such circumstances and at whatever point it is conceivable to do as such, the clashing arrangements ought to be interpreted in such a way in this way, which they blend. The Court must attempt to discover the degree to which the council had planned to give one arrangement a superseding impact over another arrangement. In some English cases[16], it has been proposed that if two opposing areas of an Act can’t be accommodated, at that point the last segment must win, yet this is certainly not a broadly acknowledged guideline of the standard of amicable development.

Conclusion:

Resolutions are drafted by the governing body and there is each chance of circumstances of vagueness, clashes, oddities, absurdities, hardships, repugnancy, repetition and so forth. In such circumstances, the rules of understanding of resolutions become possibly the most important factor and the arrangements are understood in order to give most extreme impact to them and to render equity to the current circumstance. The guideline of agreeable development assumes a significant job in deciphering resolutions and is utilized in wealth of cases. It helps in improving convoluted issues and makes conveying decisions a lot simpler. In this way, similar to the numerous guidelines of translation of resolutions, the significance of the rule of agreeable development is additionally comprehended and felt by the legal executive. It was appropriately said by George Washington, ‘The organization of equity is the firmest mainstay of the administration.’ Thus, with regards to this idea, the legal executive ought to decipher the rules appropriately and brilliantly apply the standards for translation of sculptures to render fast equity to the residents of the nation.


[1] CIT v Hindustan Bulk Carriers, (2003) 3 SCC 57, P 74.

[2]  Sultana Begum v. Premchand Jain, AIR 1997 SC 1006, pp. 1009, 1010.

[3] CIT v. Hindustan Bulk Carriers, (2003) 3 SCC 57, p. 74.

[4] AIR 1958 SC 255.

[5] AIR 1959 SC 395, p. 410.

[6] AIR 1965 SC 745, p. 761 (para 36).

[7] State of U.P. v. Raj Narain, AIR 1975 SC 865; S.P. Gupta v. President of India, AIR 1982 SC 149

[8] Peoples Union for Civil Liberties v. U.O.I, AIR 2004 SC 1442.

[9] AIR 1964 SC 160.

[10] Kavanaugh v. Flash, 74 Fed. (2435).

[11] Jones v. Steele, 210 K.Y. 205, 275 S.W. 790.

[12] Hurford v. Omaha, 4 Neb. 336; Crawford’s Statutory Construction, Section 261, p. 515.

[13] 1958 AIR 1018.

[14] AIR 1997 SC 2013, p. 2019.

[15] A.G. Varadarajulu v. State of Tamil Nadu, AIR 1998 SC 1388.

[16] Castrige v. Page, (1853) 138 ER 1278; Eastbourne Corporation v. Fortes Ltd., (1959) 2 All ER 102 CA; King v. Dominion Engineering Co. Ltd., AIR 1947 PV 94.

Author: Shantanu Kaushik

Editor: Kanishka VaishSenior Editor, LexLife India.

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