Harmonious Construction

It is 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 a rule of harmonious construction. The fundamental rule of

interpretation is the same whether one construes the provisions of the Constitution or an

Act of Parliament, namely that the court will have to find out the expressed intention

from the words of the Constitution or the Act, as the case may be.

But if two constructions are possible, then the court must adopt that which will ensure

smooth and harmonious working of the Constitution and eschew the other which will

lead to absurdity or give rise to practical inconvenience or make well-established

provisions of the existing law nugatory. Thus every statute has to be construed as a whole

and the construction given should be harmonious one.

It is the duty of the court to try and harmonise the various provisions of an Act, but it is

not certainly duty of the court to stretch the words used by the legislature to fill in gaps or

omissions in the provisions of an Act. As already said, the statute must be read as a whole

and every provision in the statute must be construed with reference to the context and

other clauses in the statute so as, as far as possible, to make a consistent enactment of the

whole statute. All the provisions of a statute are to be read together and given effect to

and conflicting provisions must be read harmoniously so as to make the provisions

workable. All parts of the Act must be in harmony with the statutory intent and in this

order reference to other parts of the section is necessary to ensure absence of conflict.'

Such a construction has the merit of avoiding any inconsistency or repugnancy either

within a section or between a section and other parts of the statute.

It is the duty of the courts to avoid "a head on clash" between two sections of the same

Act. Two sections are inconsistent when they cannot stand together at the same time

since one-provision conflicts directly with the command or power of the other provision.

Therefore the rule of construction fixed that whenever it is possible to do so to construe

provisions that appear in conflict so that they harmonise because it cannot be assumed

that Parliament shall give with one hand and take away with the other.

In Venkataraman Daunt v. State of Mysore, the trustee of the appellant temple filed a

suit for a declaration that the appellant was a denominational temple and that section 3 of

the Temple Entry Act was void as repugnant to Article 26(b) of the Constitution. Under

the Article a religious denomination had the right to manage its own affairs in the matter

of religion. It was contended by the appellant that Article 26(b) is not subject to and

controlled by a law made under Article 25(2)(b) of the Constitution, which protects the

right to enter a temple for purposes of worship. Article 25(2)(b) reads: "Nothing in this

Article shall affect the operation of any existing law or prevent the State from making

any law (b) providing for social welfare and reform or the throwing open of Hindu

religious institutions of a public character to all classes and sections of the Hindus."

Section 3 of the Madras Temple Entry Act was, therefore, within protection of this

Article. On the other hand Article 26(b) provides that every religious denomination or

any section thereof shall have the right to establish and to manage its own affairs in

matters of religion. The contention of the appellants therefore was that the right to

manage conferred under Article 26(b) give them right to regulate entry to the temple. The

Supreme Court held that the contention of the appellant ignores the true nature of the

power of the State conferred by Article 25(2)(6) to make law as regards the right

conferred on all classes and sections of Hindus to enter into a public temple, and on the

unqualified terms of that Article, the right must be available whether it is sought to be

exercised against an individual or against a denomination. If the contention of the

appellant is accepted then Article 25(2)(b) will become wholly nugatory in its application

to denominational temples, though the language of the Article includes them. The

language of the Article being plain and unambiguous, the intention of the legislature can

be gathered only from the words actually used in the statute and in a court of law what is

unexpressed has the same value as what is unintended.

The Court observed:

"In the present case the wider scope as regards the religious matter conferred on the

denominated temples namely to manage the affairs of the temple, provided the power of

the State to regulate entry to the Hindu temples which one is of narrower in scope,

therefore from the wider scope i.e. Article 26(b) the power of the State conferred on it by

virtue of Article 25(2)(b) should substrate for giving full effect to both the provisions.

Harmonising in that way, Article 26(b) must be read subject to provisions of Article (25)

(2)(b), meaning thereby right to manage all affairs of the denominated temple is with the

management of the temple, but right to regulate entry in Hindu temple of any description

is conferred on the State. In order, therefore, to avoid any apparent conflict or clash

between the provisions of the statute, expressions used therein should be understood in a

sense in which they best harmonise with the object of the statute. The right in the matter

of religious affairs of every religious denomination is subject to a law made by State

providing for social welfare or throwing open of Hindu religious institutions of public

character to all classes of Hindus.

Thus the principle of harmonious construction for its application requires the following

four steps:

(a) That both the provisions which are conflicting or are repugnant to each other must be

read as a whole with reference to the entire enactment in question.

(b) Give full effect to both of them and then detracts the conflict.

(c) Out of the two conflicting provisions choose wider and narrow scope of these two

separately and,

(d) From the wider provision subtract the narrow and see the consequence.

If the consequence is as reasonable as to harmonise both the provisions and gives their

full effect separately, no further inquiry is required, but read it in such substation. While

doing such harmonisation one thing must be kept in mind that the entire enactment is the

product of the same author, i.e., the Legislature and it is certainly supposed that the

legislature while enacting the provisions of a statute was fully alert about the situation

which entered to cover and therefore all provisions enacted requires to be given their full

effect in scope.

Again, the Supreme Court resolved the apparent conflict between Article 19(1)(a) and

194(3) of the Constitution by giving a harmonious construction to the effect that the right

of freedom of speech guaranteed under Article 19(1)(a) is to be read as subject to powers,

privileges and immunities of a House of the Legislature under Article 194(3). In M.S.M.

Sharma v. S.K. Siniza, the petitioner-editor of a newspaper published a speech made in

the State legislature without destructing the expunged parts of it as directed by the

Speaker. He was asked to show cause why appropriate action should not be taken against

him for breach of privilege of the House. In a petition it was contended that the proposed

action was in violation of his fundamental right of freedom of speech. Dismissing the

petition the Supreme Court held that the powers, privileges and immunities of the House

of Legislature are not subject to Article 19(1)(a). Both these provisions must be

reconciled. Article 19(1)(a) which is more general must yield to Article 194(3).

The same rule applied in KM. Natzazvati v. State of Bombay, where Article 161 was

held subject to Article 142 of the Constitution. In this case the appellant was sentenced to

imprisonment for life by the High Court. On the same day the Governor of the State

passed an order suspending the sentence under Article 161. The applicant's special leave

petition was dismissed by the Supreme Court holding that the petition could not be listed

for hearing unless he surrendered to his sentence as required by Article 142(1) and the

rules of Supreme Court under Article 145 of the Constitution. Similar result was reached

in interpreting sections 401 and 426 of the Code of Criminal Procedure, 1898. The

Supreme Court observed that section 426 is as unfettered by other provisions of the Code

as section 401 with this difference that powers under section 426 can only be exercised

by an appellate court pending an appeal. When both the provisions are thus unfettered,

they have to be harmonized so that there may be no conflict between them. It is well

settled principle of interpretation that one section, which is Ex-facie in conflict with

another, merely, provides an exception from the general rule contained in the other.

However, where the words of the statute are clear they must of course be allowed, but

where alternative constructions are equally open, that alternative is to be chosen which

will be consistent with the smooth working of the system which the statute purports to

regulate, and that alternative must be rejected which will introduce uncertainty, friction or

confusion. This principle was applied by the Supreme Court while construing section 151

of the Civil Procedure Code, 1908.

In Ram Chand Sons Sugar Mills Ltd. v. Kanaiya Lal Bhargava, it was held that the

inherent power of a court under section 151 C.P.C. is in addition to and complementary

to the powers expressly conferred under the Code. That power cannot be exercised if

such exercise is inconsistent with or comes into conflict with any of the powers expressly

or by necessary implication conferred upon court by other provisions of the Code. The

inherent power of the Court cannot be invoked in order to cut across the powers

conferred by the Code specifically.

An interesting question relating to a conflict between sections 17(1) and 18(1), equally

mandatory provisions of the Industrial Dispute Act, 1947 arose in Sirsilk Ltd. v.

Government of Andhra Pradesh. Section 17(1) of the Act requires the Government to

publish every award of a labour tribunal within thirty days of its receipt and by sub-

section (2) of section 17 the award becomes final on its publication. Section 18(1) of the

Act provides that a settlement between employer and workman shall be binding on the

parties to the agreement. In a case where settlement was aimed at after receipt of the

award of the tribunal but before its publication, the question was whether the Government

still required publishing the award under section 17(1) of the Act.

Lord Dunedin in Whitney v. Commissioner of Inland Revenue observed that :

If two constructions of a statute are possible, one of which would make it intra vires and

the other ultra vires, the court must lean to that construction which would make the

operation of the section intra vires. The reason is that no intention can be imputed to the

legislature that it would exceed its own jurisdiction.' In interpreting a provision which at

once is a charging as well as a remedial provision and whose main object is to plug

leakage and prevent evasion of tax, a construction which would defeat its purpose, and, in

effect, obliterate it from the statute book, should be eschewed. If more than one

construction is possible, that which preserves its workability and efficacy is to be

preferred to the one, which would render it sterile, or redundant.

In Nokes v. Doncaster Amalgamated Collieries Ltd. Viscount Simon L.C. stated: "if

the choice is between two interpretations, the narrower of which would fail to achieve the

manifest purpose of the legislation, we should avoid a construction which would reduce

the legislation to futility and should rather accept the bolder construction based on the

view that Parliament would legislate only for the purpose of bringing about an effective

result."

In K. Ranganatha Reddiar v. State of Kerala, while dealing with the provisions of

Prevention of Food Adulteration Act, 1954 and Rules made thereunder, the Supreme

Court observed: The Prevention of Food Adulteration Act is of wide application and

millions of small traders have to comply with the provisions of the Act and the Rules. If

the object underlying the Act can be achieved, without disorganizing the trade, by giving

a reasonable interpretation to the Act and its Rules, it is courts duty to do so.

In Gursahni Saigal v. Commissioner of Income Tax interpreting sub-section (8) of

section 18A of the Income Tax Act, 1922 which in substance says that in calculating the

amount of interest of the machinery the method of calculation laid down in sub-section

(6) shall be applied. The Supreme Court said that the proper way to deal with such a

provision is to give it an interpretation which makes the law workable.

In Shanti Prasad Jain v. Director of Enforcement, section 4(1) of the Foreign

Exchange Regulations Act, 1973 was in question. The Supreme Court held that the

intention of the legislature was plainly to prohibit all transactions in foreign exchange by

persons who are residents of India whether such transaction take place during their actual

residence in India or during their sojourn in foreign parts. To hold that the prohibition

under the Act does not extend to acts done outside India by the "residents of India" must

inevitably lead to large-scale evasions of the Act resulting in its object being defeated. A

construction, which leads to such a result, must be avoided.

In Union of India v. Rajdhani Grains and Piggery Exchange Ltd.,' held: Where the

court is concerned with the question whether it is legally competent to vest a particular

power in a statutory body, the proper rule of interpretation would be that unless the nature

of the power is such as is incompatible with the purpose for which the body is created, or

unless the particular power is contra-indicated by any specific provision of the enactment

bringing the body into existence, any power which would further the provisions of the

Act could be legally conferred on it. In construing the provisions of a statute courts

should be slow to adopt a construction that tends to make any part of the statute

meaningless or ineffective; an attempt must always be made so as to reconcile the

relevant provisions as to advance the remedy intended by the statute and to make the

whole of it effective and operative.

In Commissioner of Income Tax v. Teja Singh, the contention was unless conditions of

notice under section 22 was satisfied, penalty under section 28 for failure to comply with

section 18A(3) of the Income Tax Act, 1922 cannot be imposed. The Supreme Court

observed that if the said contention accepted, the result would be to make section 18A(9)

(b) nugatory. The Court held that on the principle of lit res magis valeat quam pereat

such a construction that makes the provisions of the Act nugatory couldn't be accepted.

In Avtar Singh v. State of Punjab, the accused contended that his conviction for theft of

electricity under section 39 of the Electricity Act, 1910 and section 378 of the Indian

Penal Code, 1860 was illegal because proceedings against him were not initiated by any

one mentioned in section 50 of the Act of 1910. The Supreme Court held: Though

electricity is not movable property within the meaning of section 378, IPC, yet by a legal

fiction created by section 39 of the Indian Electricity Act, 1910, dishonest abstraction of

it should be deemed to be an offence of theft and punishable tinder section 379, I.P.C.

and section 39 of the said Act. The prosecution in cases of theft of electricity, however,

has to be launched only at the instance of a person named in section 50 of the Electricity

Act. In Corporation of Calcutta v. Liberty Citzema,4 the corporation was entitled to

recover 'licence fee' from the respondent annually which was later on enhanced. It was

challenged on the ground that no service is being rendered to the respondent in lieu of

'fee' and hence the recovery is unlawful. Interpreting the provisions ut res magis quartz

pereat, the Supreme Court held: "It was clear that the expression "fee" used in section

548 of the Calcutta Municipal Corporation Act must mean 'a tax'. This interpretation

alone paves the way for a smooth working of the system for the Act is passed.

In Umayal Aehi v. Lanni Achii the Privy Council dealing with the expression "all

property" in Hindu Women's Right to Property Act, 1937, held that "property" here

means "property other than the agricultural land" since agricultural land was a State

subject. Thus it is recognized principle of construction that general words and phrases

however wide and comprehensive they may be in their literal sense, must usually be

construed as being limited to the actual object of the Act. In a statute where alternative

constructions are possible the court must give effect to that which will be responsible for

the smooth working of the system for which statute has been enacted rather than the one

which would put hindrance in its way. If however, no sensible meaning can be given to a

word or phrase, or if it would defeat the real object of the enactment, it may, or rather it

should, be eliminated.

The above particular instances clearly show that the courts, by means of the maxim ut

res maxis valeat pant pereat, avoided interpretation which would leave any part of the

relevant statute to be without effect, and not narrowed enactments designed to prevent tax

evasions, criminal offences, and also saved enactments from becoming them nugatory or

non-operative.