Doctrine of Harmonious Construction

CONTENTS

 Introduction
 Case Laws
 Conclusion
 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.

ii) 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
1
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

1
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
2
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

2
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 pre-
University 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.