HARMONIOUS CONSTRUCTION

 

HARMONIOUS CONSTRUCTION

During interpretation of statutes there is a need to interpret the provisions of the two Acts, one central and other state, harmoniously so that both are able to survive their respective fields and also able to achieve their respective objectives.

If possible, a construction is to be preferred which reconciles the different sections, orders and rules without d

The intention of legislature is that every provision should remain operative. But where two provisions are contradictory, it may not possible to effectuate both of them and in result, one shall be reduced to futility as against the settled basic principle of ut res magis valeat qauam pereat.

Therefore, such a construction should be allowed to prevail by which existing inconsistency is removed and both the provisions remain in force, in harmony with each other.
CIT v. Hindustan Bulk Carriers (2003) the supreme court laid down five principles of rule of harmonious construction:

the courts must avoid a head-on clash of seemingly contradicting provisions and they must construe the contradictory provisions.

the provision of one section cannot be used to defeat the provision contained in another unless the court, despite all its efforts, is unable to find a way to reconcile their differences

when it is impossible to completely reconcile the differences in contradictory provisions, the courts must interpret them in such a way so that effect is given both the provisions as much as possible.

courts must also keep in mind that interpretation that reduces one provisions to useless number or dead is not harmonious construction.

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

Re- Kerala education bill 1951

In this case it was held that in deciding the fundamental rights the court must consider the directive principle and adopt the principle of harmonious construction. So, two possibilities are given effect as much as possible by striking a balance.

East India hotels ltd. V. Union of India (2001)

It was held that an Act is to be read as a whole, the different provisions have to be harmonized and the effect to be given to all of them.

Qureshi v. State of Bihar

In this case supreme court held that the state should implement directive principle in a way so as that it will not interfere fundamental right.

In P.S Sattappan v. Andhra bank ltd. (2004)

The supreme court held observed that one cannot interpret a section in a manner which would lead to a conflict between two sub sections of the same sections.

In Sarabjit Rick Singh v. Union of India (2008)

The apex court observed that a construction giving effect to all provisions of the statute should be adopted.

In S. Nagraj v. B.R. Vasudeva Murthy (2010)

The apex court held that statutes opposing provisions but with same subject matter have to be read together.

SBEC Sugar Limited v. Union of India (2011)

It was held that a cardinal principle of construction is that the provisions of the notification have to be harmoniously construed as to prevent any conflict with the provisions of the statute.

In Yakub Abdul Razak Memon v. State of Maharashtra the supreme court held that the conflict between the provisions of two statutes has to be resolved by references to purpose and policy underlying two enactments. The Court must take into consideration principal subject matter of statute and particular perspective in order to determine whether a statute is special or general one.

In Union of India v. Dileep Kumar Singh the apex court held that the provisions of statute must be read harmoniously together. Where this is not possible and there is irreconcilable conflict between two sections, it must be determined which provision is leading provision and which provision is subordinate provision and that which one must give way to the other.

 

 

 

Furthermore, in the case of Venkataramana Devaru v. the State of Mysore the Supreme Court applied the doctrine in resolving a conflict between Articles 25(2)(b) SOCIAL WELFARE N REFORM+THROWING OPEN TEMPLE TO ALL CLASSES 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 provisions made by the State providing for social welfare and reform or opening of Hindu religious institutions of a public character to all classes and sections of Hindus [Article 25(2)(b)].

The principle of ‘Harmonious Construction’ is also applicable in the case of construction of provisions relating to subordinate legislation

In the landmark judgment of Sirsilk Ltd. v. Govt. of Andhra Pradesh, a very important question was answered. Various disputes arose between the employer and the workmen and it was further referred to an industrial tribunal. After the adjudication was over, the government sent its award to the government for publication. However, before the publication of the award, the parties to the dispute came to a settlement, and wrote a letter to the government jointly, that the dispute has been settled and the award shall not be published. The government refused to withhold the publication and in turn, the parties further moved the High Court. The High Court rejected the writ petition. The parties further moved the Supreme Court through a special leave petition.

The main premise of the appellants was that Section 17 of the Industrial Disputes Act, 1947 was directory in nature and not mandatory.

Section 17(1) of the Act 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 court read the Section 17 and 17A and declared that the duty cast on the government to publish the award is mandatory and not a directory. Thus, the contention of the appellants did not hold good.

But on further observation by the court, Section 18 was scrutinized. Section 18 (1) provides that a settlement arrived at by agreement between the employer and the workmen otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement.

The Supreme Court observed that in the present case, the duty of the government under Section 17 of the Industrial Disputes Act, 1947 and settlement under Section 18 are in conflict with each other. Finally, it was held that where a settlement has been arrived at between the parties before the tribunal after the award has been submitted to the government but before its publication, no dispute is left to be resolved. So, the government should refrain from publishing the award.

Thus, in the above case, Harmonious Construction was employed. This is a fine example of how enforcement of one provision can be implemented without rendering the other provision useless or dead.

RAJ KRISHAN V BINOD

Election to state legis assembly is invalidated when members nomination was proposed by a govt servant.

Sec 33(2) – empower state govt servant to nominate a candidate seeking election in state legis assembly

Sec 123 (8) govt servant cant assist the candidate in election

Except by casting vote

Harmonise – can assist in nominating but not anything else .

Condition – who is proposing name should have his name registered in electoral rolls n should not be disqualifed

TIKA RAMJI V STATE OF UP

Ques of power of parliament and state legis to legislate on a matter – industries ...production and supply and distribution

LIST I ENTRY 52 :- Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest.

LIST II ENTRY 24 N 27 :- Production, supply and distribution of goods subject to the provisions of entry 33 of List III

LIST III ENTRY 33:=--- the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest,

UP sugarcane (regulation of supply )act challenged on ground that only parliament can make law on such industry under list 1 and 3 .

No doubt prod /dist /supply comes under state list

But concurrent list gives power to union govt too

Sugar is controlled industry – comes under exclusive domain of union list under entry 55

Sugarcane being good fell direct;y under entry 27 list 2.

Hence state can legislate on distribution/supply etc