NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN

LAW,
RANCHI

DOCTRINE OF HARMONIOUS CONSTRUCTION

SUBMITTED BY: SUBMITTED TO:

SEMESTER – III ASSOCIATE PROFESSOR

SECTION- ‘B’

ROLL NO.- 1056

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Contents
ABSTRACT....................................................................................................................................3
INTRODUCTION...........................................................................................................................4
WHAT IS DOCTRINE OF HARMONIOUS CONSTRUCTION?............................................5
APPLICATION OF THE DOCTRINE.......................................................................................6
CASES:............................................................................................................................................9
ANALYSIS....................................................................................................................................16
CONCLUSION/FINDINGS:.........................................................................................................18
REFERENCE:...............................................................................................................................19

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 ABSTRACT

Even when the legislature draws up laws with the greatest consideration and accuracy, all the
legislation is taken into account. Current circumstances and future scenarios that may arise also
occur when and an unforeseen scenario could occur. But often, either because of a lack of
popular agreement in Parliament or because it thinks that legal regulation can be best followed if
determined on a case-by-case basis, the legislature intentionally leaves lacunae in the legislation.

Because of these reasons, There are explanations for the need to interpret and create laws and
their provisions. There are several laws to be adhered to by the judiciary throughout the reading
and construction of statutes, and one of them is the law of the rule of harmonious construction.

One of the cannons of interpretation used for Statue Interpretation is the Doctrine of Harmonious
Construction. The doctrine notes that, in order to prevent any inconsistency or repugnance, a
clause of the statue should not be viewed or construed in isolation but as a whole.

Thus, in simple words, in order to find out its true meaning, a statue should be read as a whole as
in one unit.

This study aims to clarify the definition and principles of the harmonious construction doctrine
and to justify its use with many case laws, its analysis and research topic.

Keywords: Construction, laws, doctrine, Interpretation, legislature.

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 INTRODUCTION

The value of the law is understood by any person living in a group. The law can be viewed as a
mechanism to keep society stable and free from problems and to prevent disputes between
people who control their actions. The laws passed to regulate society are drawn up by legal
experts and it can very well be expected that many of the adopted laws will not be precise and
will contain ambiguous words and phrases. We also discover that, in the spirit of certain terms
and phrases, the courts and lawyers work to develop and resolve contradictions.

We are all aware that the government has three wings, named, the legislature, the executive and
the judiciary. The role of statutory interpretation plays a role and is of greatest importance to the
judiciary in providing justice correctly by interpreting the statutes in the way that the situation
requires.

The aim of harmonious construction is to remove any conflict between the two passed clauses of
the law and to create provisions in such a way as to harmonize them. The purpose of this law is
that the Legislature never allows two contradictory provisions to be present in a statute, since it
leads to self-contradiction.

In the process of understanding, the real legislative aim that we are trying to understand should
not be to allow anything in one provision and reject the same in the next. Therefore, although an
inconsistency is found, it should be deemed unintentional and, as such, it must be fixed by
harmonious construction.

This article will concentrate on the principle of the doctrine of harmonious construction in the
concept and development of laws and mainly focuses on research topic- What is the justification
for a statute being read as a whole?

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WHAT IS DOCTRINE OF HARMONIOUS CONSTRUCTION?

The object of the interpretation of laws is to establish the purpose of the legislature, expressed in
the explicit or implied language used. "As SALMOND stated, “by construction is meant, the
process by which the court seeks to ascertain the meaning of the legislature through the medium
of authoritative forms in which it is expressed.”

This rule is used to avoid any misunderstanding and repugnance within a section or between a
section and other parts of a statute. The rule follows a very simple concept that each statute has a
significance and function, as per law, and should be interpreted as a whole. It shall prevail in an
interpretation that is compatible with all the provisions and makes the enactment compatible. The
principle follows a basic rule that an interpretation should be an understanding that contributes to
oppression, pain, discomfort, and abnormality.

In the landmark case of commissioner of income Tax vs. M/S Hindustan Bulk Carriers( 2003)
SCC 57 the SC laid down the guidelines to be followed by the court while applying this:

5 main principles of the ‘Doctrine of Harmonious Construction’:

i) In order to harmonize them, the courts must prevent a head on clash with having different
provisions and they need to build the contradictory provisions. ( CIT v. Hindustan Bulk
Carriers,(2003)3 SCC 57,p.74)1

ii) Unless the court, in spite of all its efforts, is unable to find a way to resolve their conflicts,
the provision of one section cannot be used to defeat the provision found in another.2

iii) If it is difficult to fully resolve the differences between the conflicting clauses, the courts
must interpret them in such a way as to give the two provisions the fullest possible effect.3
(Sultana Begum vs. Premchand Jain, AIR 1997 SC 1006,pp, 1009,1010)4

1
CIT v. Hindustan Bulk Carriers, (2003) 3 SCC 57, p. 74

3
Sultana Begum v. Premchand Jain, AIR 1997 SC 1006, pp. 1009, 1010
4

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iv) Courts must also understand that harmonious construction is not an idea that reduces one
clause to an useless number or dead.

v) Harmonization is not designed to eliminate any legislative provision or render it fruitless.5

APPLICATION OF THE DOCTRINE

To reconcile the dispute, the Supreme Court has used the theory of harmonious construction:

1. Between the fundamental rights and the Directive principles of state policy.

2. Between different fundamental freedoms

3. Between fundamental rights and privileges of law

4. Between fundamental rights and the adjustment process

5. Between constitutional rights and other sections of the Constitution

6. Between the various entries in the seventh schedule of legislative lists

The following statement was made by the Supreme Court on the application of the doctrine of
harmonious construction to the fundamental rights and directive principles of state policy, in
order to give effect as far as possible to both:

Although the court paid little attention to the directives in an earlier decision on the ground that
the courts had little to do with them because, like fundamental rights, they were not judicial or
enforceable, In the later judgment, which resulted in the Kesavananda Bharati case(1973),
laying down some general suggestions, the responsibility of the court in relation to the directives
came to be stressed. The rule of these is that there is no disharmony between the directives and
the constitutional rights, because they support each other in order to achieve the same purpose of
bringing about a social transformation and the formation of a welfare state, as envisaged in the
preamble. It is also the duty of the courts to interpret the Constitution in such a way as to ensure
that the directives are enforced and to harmonize the social meaning underlying the directives
with individual rights.

5
ibid

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Similarly, the Supreme Court made the following statement, when applying the theory of
harmonious construction to the interpretation of the various entries in the Seventh Schedule of
the legislative lists, It is also well known that the language of the entries should be given the
widest extent, but some of the entries in the various lists or the same list may overlap and may
also often appear to be in direct dispute with each other. It is therefore the responsibility of this
Court to reconcile the entries and bring peace between them In this way, it may be made possible
to arrive at a fair and functional construction of the language of the sections in most cases, so as
to balance the respective forces they represent and give effect to all of them. In this way, it may
be made possible to arrive at a fair and functional construction of the language of the sections in
most cases, so as to balance the respective forces they represent and give effect to all of them.
Only when such a reconciliation proves unlikely does the Union legislature's overriding force,
the non-obstante clause, function and the power of the Union prevail.

The doctrine is associated with 2 Latin maxims:

1. Generalia specialibus non derogant:  The general rule to be followed in case of conflict
between two statutes is that the later repeals the earlier one. In other words, a prior special
law would yield to a later general law, if either of the two following conditions is satisfied :
i) The two are inconsistent with each other.
ii) There is some express reference in the later to the earlier enactment.

If either of these two conditions is fulfilled, the later law, even though general, would prevail.

2. Generalibus specialia derogant: The OSBORN’S Law Dictionary defines this maxim as,
“Special things derogate from general things.”
The explanation of the same can be given from the case of State of Rajasthan v. Gopi Kishan
Sen6, in which the Supreme Court observed that “the rule of harmonious construction of
apparently conflicting statutory provisions is well established for upholding and giving effect to
all the provisions as far as it may be possible, and for avoiding the interpretation which may
render any of them ineffective”.

6
State Of Rajasthan vs Gopi Kishan Sen on 7 April, 1992

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In the instant case, Rule 29 of the Rajasthan Services Rules, 1951 dealing with the payment of
increment is in general terms while the schedule in the Rajasthan Civil Services (New Pay
Scales) Rules, 1969 makes a special provision governing the untrained teachers, attracting the
maxim ‘Generalibus specialia derogant’ i.e., if a special provision is made on a certain subject,
that subject is excluded from the general provision

Cases:
In Yakub Abdul Razak Memon v. State of Maharashtra7 the supreme court ruled in that the
disagreement between the terms of two laws had to be resolved through references to the intent
and policy underlying the two acts. In order to decide whether a statute is unique or general, the
Court must take into account the key subject matter of the statute and the relevant viewpoint.

In Union of India v. Dileep Kumar Singh8 the apex court held in that the terms of the law must
be read together in harmony. Where this is not practicable and the disagreement between the two
clauses is irreconcilable, it must be decided which provision is the main provision and which
provision is the subordinate provision and which provision must give way to the other.

7
Yakub Abdul Razak Memon & Others v. State Of Maharashtra

8
Union Of India & Ors vs Dileep Kumar Singh on 26 February, 2015

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 CASES:

In Shankari Prasad vs. Union of India( AIR 1951 SCC 455) 9

Fundamental rights and fundamental human rights are enforceable. The court of law preserves
these basic rights by issuing warrants. While, according to Articles 352 and356, fundamental
rights, or sections respectively, may be suspended in an emergency, they may also be changed by
Parliament.

The SC ruled that, according to Article368, the power to amend the Constitution also included
the power to amend fundamental rights, and that the term 'law' in Article13(8) included only
ordinary legislation made in the exercise of legislative powers and did not include constitutional
changes made in the exercise of constituent power. Therefore, even though it abridges or takes
up all of the basic rights, a Constitutional amendment would be valid.

Article 13 of the original Constitution provided that no law which abolishes or abridges the
rights conferred by Part III on citizens shall be made by the State and any such law made in
violation of this Article shall be deemed void to the extent of the violation. Therefore, the
constitution should not be amended by parliament in a way that takes away the constitutional
rights of people.

It was challenged that the amendment (in this case an amendment to Articles 31A and 31B)
which removes citizens' fundamental rights is not permitted under Article 13. It was argued that
parliament contains "State" and Constitutional Amendments are contained in "Law". The 'Law'
was held to be ordinary law under the legislative powers in Article 13. And thus the parliament
has the right to amend the constitution.

The principle of harmonic construction was applied by the Supreme Court because there is a
dispute between Article 368 and Article 13. The constitutional provisions should be viewed in
such a way that they do not interfere with each other and that there must be harmony between
them.

9
Shankari Prasad v Union of India, AIR 1951 SC 455

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In Venkataramana Devaru v. State of Mysore10
In resolving a conflict between Articles 25(2)(b) and 26(b) of the Supreme Court, the law of
harmonious construction was used by the Supreme Court. The Constitution and it was held that
the right of any religious denomination or any part thereof to administer its own affairs in matters
of religion [Article 26(b)] is subject to the law of a State providing for social protection and
reform or opening all classes and parts of Hindus to the public of Hindu religious institutions of a
public nature. [Article 25(2)(b)].

In M.S.M. Sharma v. Krishna Sinha11 , The petitioner in the case was claimed to have abused
the speaker's rights to publish a speech delivered by the member. The petitioner was given a
show-cause notice as to why action could not be taken against him.

Issue- Whether the rights referred to in Article194(3) prevail over a constitutional right referred
to in Article 19(1)(a)?

Petitioner’s conflict- The action taken by the Committee and the notice sent was in breach of its
constitutional rights under the provisions of Art 19(1)(a) and Art. 21. However, because the
respondent relied on Article194(3), the law of interpretation as to which clause is prevailable has
been invoked.

Held- The Supreme Court applied the harmonious construction rule and held that while
Art.194(3) is subject to Art.21, the supreme law of the country is the Indian Constitution, and
hence an individual can be expunged from the publication of the Assembly's official records.
This is not a complete ban of that person on FR.12

10
AIR 1958 SC 255
11
AIR 1959 SC 395, p. 410.
12
In re, C.P. & Berar Motor Spirit and Lubricants Taxation Act, AIR 1939 FC 1, p. 5; G.G. in Council v. Province
of Madras, AIR 1945 PC 98, pp. 100, 101; Calcutta Gas (Proprietary) Ltd. v. State of W.B., AIR 1962 SC 1044, p.
1050; Waverly Jute Mills Co. Ltd. v. Raymon & Co. (India) (Pvt.) Ltd., AIR 1963 SC 90, p. 95

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Raj Krishna vs BINOD AIR 195413

In this case, two provisions of the Representation People Act,1951, which were in apparent
conflict were made. Section33(2) states that a government servant may nominate a candidate in
the election or a second, but Section123(8) states that by casting his vote, a government servant
can not assist any candidate in the election scheduled. The SC observed that each of these
clauses should be viewed harmoniously and held that a government official was entitled to
appoint a nominee or a second candidate for election to the Legislative Assembly of the State. If
Section123(8) is interpreted as granting the government servant the right to vote as well as to
appoint a candidate and forbidding him to assist the candidate in any other manner, this balance
may be achieved.

In the case of Sirsilk Ltd. v. Govt. of Andhra Pradesh14 Certain disputes were referred to an
industrial tribunal between the employer and the workmen. The tribunal submitted its award to
the government for publication after adjudication. Before the award was issued, however, the
parties to the dispute reached a settlement and, accordingly, wrote a letter to the government
jointly announcing that the dispute has been settled; the award is thus not to 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 public

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 legislation or statutory provision that is obligatory is one that must be followed in order to
comply with the The process to which this refers may be true. A law or provision of a directory
is one that does not need to be complied with in order to be applicable in the process it
participates in. This is not Whether a specific law is necessary or a directory is often easy to
decide.

13
Raj Krishna vs BINOD AIR 1954

14
AIR 1964 SC 160.

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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”.

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 in the course of 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

Re- Kerala education bill 1951:

Prof. Yashpal and Anr. V. State of Chhattisgarh ( AIR (2005) SC (2026)

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FACTS:

By way of public interest litigation pursuant to Article 32 of the Constitution, Professor Yashpal
an eminent scientist and former chairman of the University Grants Commission filed Writ
Petition No.19 of 2004 for the declaration of certain clauses of The Chhattisgarh Niji Kshetra
Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002 as ultra vires and for the quash of
the notifications given by the State of Chhattisgarh in the alleged exercise of power conferred on
the establishment of different universities by Section 5 of the said Adhiniyam. The other
petitioner who joined the petition is a resident of Chhattisgarh and is concerned with the standard
of education in his region. Under Section 5 of the Act, by issuing a notice in the Gazette, the
State has been allowed to incorporate and create a university and Section 6 enables that
university to affiliate any college or other institution or, with the necessary approval of the State
Government, to set up more than one campus. The major averments in The petition states that,
after the entry into force of the Act, the Government of the State simply founded universities in
an indiscriminate and mechanical manner by issuing notifications in the Gazette, without regard
to the availability of any infrastructure, teaching facilities or their financial resources.

As many as 112 universities were built in a short period of about one year and many of them had
almost no buildings or campus and operated from one-room tenements. There has been simply
no supervision or oversight of them. The law has been passed by Implemented in a way that fully
abolished any form of control over these private universities by the University Grants
Commission ('UGC' for short). A full go-by was provided to the directives issued by UGC on the
courses being taught and the award of academic degrees. Universities are completely incapable
of delivering any education, far less education. In the absence of basic facilities, such as
classrooms, libraries, labs or campuses, a quality education. Nevertheless, they have been
empowered to grant degrees by granting the legal status of a university.

Without prior permission from regulatory bodies such as the All India Council of Technical
Education (AICTE), the Medical Council of India (MCI), the Dental Council of India (DCI),
etc., private universities run professional courses. The requirement that regulatory bodies obtain
prior approval has not been complied with, and universities are not under the jurisdiction of any
authority and are free to award degrees, diplomas and certificates to gullible students.

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Once the universities have been notified in the Gazette, the State Government has not carried out
any verification or inspection of whether they comply with any of the requirements laid down by
statutory bodies which are necessary for the recognition of the degrees, diplomas and certificates
awarded by those universities. The degrees and qualifications conferred by such universities
would not be recognized by professional organizations in the absence of the appropriate
authorisation from the legislative bodies, as a result of which professional organizations would
not be recognized. Students studying at such universities and graduating from them will suffer
massive loss, both in terms of money and in terms of time spent completing the courses.

It is further remarked that the University Grants Commission Act is made unworthy of
consideration as private universities offer courses without subscribing to the requirements set by
the UGC and the degree awarded may not be of any value if there is no homogeneity of the
course material. Private colleges are offering extraordinary courses and degrees that are not part
of the UGC Act schedule, which is in direct breach of Section 22 of the aforementioned Act and
the attached Schedule. A full go-by was also granted to the minimum requirement of teaching
staff as laid down in the UGC regulations.

Judgement:

In order to protect the interests of students who may actually study in institutions established by
such private universities, it is expected that the government of the state may take appropriate
measures to ensure that such institutions are affiliated with the existing state universities in
Chattisgarh. The Chhattisgarh Niji Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman)
Adhiniyam, 2002 provisions of Sections 5 and 6 are considered ultra vires and are struck down.
As a consequence of such a declaration, all notices published in the gazette by the State
Government in the supposed exercise of powder pursuant to section 5 of the aforementioned Act
notifying universities shall be revoked and such universities shall cease to exit If these
universities have created some institutions, steps will be taken to attach them to established state
universities.

Critical analysis:

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I am in favour  of the Supreme Court. The fact that a university degree is deprived of the basic
facilities such as classrooms, library laboratories or campuses is really a disturbing situation.
How can one even think of talking about quality education if the general expectations of
education are not met? As the state struggled to raise adequate funds for education, the act was
passed to welcome private universities. Students are easily enrolled in our education system on
the basis of family backgrounds and having the same way would be a much expected universe
for them. Special provisions are needed to address the loopholes in the education system. A great
deal of clarity is needed so that people don't see education like a company that makes money.
Under Section5, the state has the power to create a university and Section 6 requires that
university to associate a college with the prior approval of the state government.

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 ANALYSIS

To interpret it, the court needs to read the statute as a whole. It is not intended to blindly view the
court. These are classified as general definitions, which are the law of literal meaning, golden
rule, and mischief. At the time of law making, there are internal and external aids to properly
understand what is in line with the purpose of policymakers.

It is proper and valid to read the provision in its context if a question arises as to the significance
of a certain provision in a statute. This implies that as a whole the statute must be read. In order
to decide the meaning of a clause in a statute, the courts need to look at the whole statute, what
precedes and what follows, not just the clause itself, and the way I like to read statutes is to read
the statute as a whole.

Only by analyzing the statute as a whole can the conclusion that the word used by the legislature
is clear or ambiguous be given consent. Words, keeping pace with the moment, take meaning
from the context in which they are used. Words that are used as an adjective often draw meaning
from the context. The same word can mean one thing in one context and another in a different
context, so different definitions can be given to the same word used in different parts of a statute
or even when used at different places in the same clause or section of a statute. That is why the
law as a whole needs to be read in its meaning.

Although the court would be justified in analyzing the materials to evaluate the true legislative
intent contained in a statute to some degree, the same would only be done if the statute itself is
ambiguous or if a clear interpretation given to a particular provision of the statute would cause
the statute unworkable or frustrate the very purpose of enforcing the statute.

One should not focus too much on one term in matters of meaning and pay too little attention to
other terms, because no words or phrases used in any statute can be said to be unnecessary or
irrelevant. It is important to look at every clause and every word specifically and in the sense in
which it is used and not in fact. In the context of the statute, any component of the provision has
to be given meaning and effect.

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In interpreting the word 'sale' in the Madras General Sales Tax Act, 1939 before its 1947
amendment, the Supreme Court held that the meaning of 'sale' as it then stood insisted the aspect
of property transfer and that the mere fact that the sale contract was entered into within the
province of Madras did not allow the transaction , a tax sale within the scope of the Act, which
was done in another state. In making that decision, the Supreme Court referred to the statute's
title, preamble, meaning and other provisions of enactment, as well as to the subsequent changes
to the statute.

It was decided in Jennings v. Kelly that the idea that the statute must be read as a whole applies
equally to various sections of the same section. Whether or not one of the elements is a saving
clause, the section must be construed as a whole.

Conclusion: With the dictionary on one side and the statute on the other, a statute will not
always be read.

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 CONCLUSION/FINDINGS:

According to this doctrine, the courts have to work to avoid inconsistencies between the terms of
the statutes. The legislature sets up laws and there are planned circumstances of ambiguity,
conflicts, repugnance, duplication, etc. In such situations, the rules of interpretation of laws come
into play and the provisions are constructed to give them full force and to make justice to the
situation at hand. The notion of harmonious construction plays a very significant role in
interpreting laws and is used in many cases. It helps to simplify complex issues and promotes
decision delivery.

The importance of the rule of harmonious construction is, therefore, always known and felt by
the judiciary, as are the many rules of interpretation of statutes. Accordingly, the provisions must
be interpreted in such a way that the conflict between the two is avoided and each of them has an
effect and, to that end, one's scope and intent may be restricted to the extent to which it also
gives sense to one's purpose.

So, by looking the research question, one should not focus too much on one term in matters of
meaning and pay too little attention to other terms, because no words or phrases used in any
statute can be said to be unnecessary or irrelevant. It is important to look at every clause and
every word specifically and in the sense in which it is used and not in fact. In the context of the
statute, any component of the provision has to be given meaning and effect.

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 REFERENCE:

Website:

www.lawlex.org

www.legalserviceindia.com

www.lawcirca.com

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