Doctrine of Harmonious Construction

September 22, 2017 Construction

History

1st amendment came in the instance of Sankari Prasad before SC. The tribunal nem con decided to decide the struggle between Fundamental Rights and Directive Principles by puting the trust of the line of philosophy of harmonious building. The tribunal held that the FRs impose restriction over the legislative assembly and executive power. They are non inviolable and parliament can amend them to convey in conformance to directing rules. The consequence was by and large all jurisprudence supplying for the acquisition of province and involvement therein and specially certain province including land reform acts of U.P. , Bihar and M.P. were immune from the onslaught based on article 13 read with other proviso of portion III.

DOCRTINE OF HARMONIOUS CONSTRUCTION

It is a sound canon of reading that tribunals must seek to avoid a struggle between the commissariats of Statute. The regulation of rapprochement on the Entries was propounded for the first clip in the instance of in rhenium C.P. and Bare Act.

It is the state of the tribunals to find the extent of the authorization to cover with topics falling within the legislative horizon of each legislative assembly. To avoid struggle, the Courts should read Entries of two Lists together and the linguistic communication of one Entry can be interpreted, and modified excessively, with the aid of another Entry. Interpreting Entries 24 and 25 of the State List harmoniously, the Supreme Court held that ‘gas and gas plants ‘ being in Entry 25 would non fall in the general Entry 24’Industry ‘ and observed:

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It is besides good settled that widest amplitude should be given to the linguistic communication of Entries but some of the entries in the different Listsaˆ¦may convergence and sometimes may besides look to be in direct struggle with each other, it is so responsibility of this tribunal to accommodate the entries and convey about harmoniousness between them. In this manner it may, in most instances, be found possible to get at a sensible and practical building of the linguistic communication of the subdivisions, so as to accommodate the several powers they contain and to give consequence to all of them. In Tika Ramji v. State of Uttar Pradesh, [ 3 ] the place of the industries was clarified by Supreme Court. In the instant instance the vires of U.P. Sugarcane ( Regulation of Supply and Purchase ) Act, 1953 was involved. It was contended that sugar cane being ‘controlled ‘ industry autumn within the legal power of the Union List by virtuousness of Entry 52 of List I falls within the legislative horizon of Parliament. The Supreme Court, hence, had to explicate the Inter-relation between Entries 52 of List I, 24 and 27 of List II and 33 of List III. Entry 24 of List II and 52 of List I set up that except ‘controlled ‘ industries, the industries by and large hides within the State Sphere. Entry 27 of List II gives power to State to modulate the production, supply and distribution of ‘goods ‘ topic to commissariats of Entry 33 of List III. The sugar industry being controlled industry, the distribution, supply and production of the merchandise of this controlled industry viz. Sugar as a finished merchandise,

Principle of Harmonious Construction

The rule of harmonious reading is similar to the thought of wide or purposive attack. The key to this method of constitutional reading is that commissariats of the Constitution should be harmoniously interpreted. “ Constitutional commissariats should non be construed in isolation from all other parts of the Constitution, but should be construed as to harmonise with those other parts. ” A proviso of the fundamental law must be construed and considered as portion of the Constitution and it should be given a significance and an application which does non take to conflict with other Articles and which confirms with the Constitution ‘s general strategy. When there are two commissariats in a legislative act, which are in evident struggle with each other, they should be interpreted such that consequence can be given to both and that building which renders either of them inoperative and useless should non be adopted except in the last resort. This rule is illustrated in the instance of Raj Krishna V Binod AIR 1954. In this instance, two commissariats of Representation of People Act, 1951, which were in evident struggle were brought away. Section 33 ( 2 ) says that a Government Servant can put up or back a individual in election but subdivision 123 ( 8 ) says that a Government Servant can non help any campaigner in election except by projecting his ballot. The Supreme Court observed that both these commissariats should be harmoniously interpreted and held that a Government Servant was entitled to put up or back a campaigner seeking election in State Legislative assembly. This harmoniousness can merely be achieved if Section 123 ( 8 ) is interpreted as giving the govt. servant the right to vote every bit good as to put up or back a campaigner and prohibiting him to help the campaigner it any other mode. Upon looking at assorted instances, the undermentioned of import facets of this rule are apparent – The tribunals must avoid a caput on clang of apparently beliing commissariats and they must interpret the contradictory commissariats so as to harmonise them. The proviso of one subdivision can non be used to get the better of the proviso contained in another unless the tribunal, despite all its attempt, is unable to happen a manner to accommodate their differences. When it is impossible to wholly accommodate the differences in contradictory commissariats, the tribunals must construe them in such as manner so that consequence is given to both the commissariats every bit much as possible. Courts must besides maintain in head that reading that reduces one proviso to a useless figure or a dead lumbar, is non harmonious building. To harmonise is non to destruct any statutory proviso or to render it otiose.

Case 1:

Unni Krishnan, J.P. and ors. , etc. v. State of Andhra Pradesh and Oregons.

The writ request was filed disputing whether the ‘right to life ‘ under Article 21 of the fundamental law guarantees a cardinal right to education to the citizens of India and right to education includes professional instruction. This was challenged by certain private professional educational establishments and besides in regard of modulating capitation fees charged by such establishments. The Supreme Court held that right to basic instruction was implied by the cardinal right to life when read with article 41 of directing rule on instruction. As per article 45 of the fundamental law, the province is to supply free and mandatory instruction for all kids below the age of 14 old ages and there is no cardinal right to education for a professional grade that flows from article 21. Several provinces have passed statute law doing primary instruction compulsory and there is no cardinal statute law to do simple instruction compulsory. In add-on, the Court held that, in order to handle a right as cardinal right, it is non necessary that it should be expressly stated as one in Part III of the Fundamental law: “ the commissariats of Part III and Part IV are auxiliary and complementary to each other ” . The Court rejected that the rights reflected in the commissariats of Part III are superior to the moral claims and aspirations reflected in the commissariats of Part IV.

Case:2

Smt. Rani Kusum V Smt. Kanchan Devi And Ors on 16 August, 2005

Showing the contexts in which harmonious building writer: A Pasayat appears in the papers have to determine the object which is required to be served by this proviso and its design and context in which it is enacted. The usage of the word ‘shall ‘ is normally declarative of compulsory nature of the proviso but holding respect to the context in which it is used or holding respect to the purpose of the statute law, the same can be construed as directory. The regulation in inquiry has to progress the cause of justness and non to get the better of it. The regulations of process are made to progress the cause of justness and non to get the better of it. Construction of the regulation or process which promotes justness and prevents abortion has to be preferred. The regulations or process are handmaid of justness emphasis. In the present context, the rigorous reading would get the better of justness.

In interpreting this proviso, support can besides be had from Order VIII Rule 10 which provides that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to show the same within the clip permitted or fixed by the Court, the Court shall articulate judgement against him, or do such other order in relation written statement under this proviso, the Court has been given the discretion either to articulate judgement against the suspect or do such other order in relation to suit as it thinks fit. In the context of the proviso, despite usage of the word ‘shall ‘ , the tribunal has been given the discretion to articulate or non to articulate the judgement against the suspect even if written statement is non filed and alternatively go through such order as it may believe tantrum in relation to the suit. In interpreting the proviso of Order VIII Rule 1 and Rule 10, the philosophy of harmonious building is required to be applied. The consequence would be that under Rule 10 of Order VIII, the tribunal in its discretion would hold power to let the suspect to register written statement even after termination of period of 90 yearss provided in Order VIII Rule 1. There is no limitation in Order VIII Rule 10 that after termination of 90 yearss, farther clip can non be granted. The Court has broad power to ‘make such order in relation to the suit as it thinks fit ‘ . Clearly, hence, the proviso of Order VIII Rule 1 supplying for upper bound

State Of Orissa And Ors vs Arakhita Bisoi on 14 April, 1977

Showing the contexts in which harmonious building appears in the papers respondent was allowed by the Orissa High Court by its order dated 15-7-1976 keeping that the Additional Magistrate had powers to revise an order of the appellant authorization passed u/s 44 by virtuousness of the powers conferred on him under s. 59of the Act.

Dismissing the entreaty by certification, the Court, HELD: ( I ) The linguistic communication of S. 59 ( 1 ) of the Orissa Land Reforms Act is broad plenty to enable the Collector to revise any order including an appellant order under S. 44 of the Act. [ 561B ]

( two ) In using the regulation of harmonious building with a position to give consequence to the purpose of the legislative assembly the tribunal will non be justified in seting a building which would curtail the revisionary legal power of the Collector and the Board of Revenue. [ 560E ] In the instant instance, the Act is of expropratory nature and the finding of the extra lands is done by the Revenue Officer. The legislative assembly intended that any mistake or abnormality should be rectified by higher governments like the Collector and the Board of Revenue. [ 560E ] J. K. Cotton Spinning & A ; Weaving Mills Co. Ltd. v. State revision such order. Though the amendment to subdivision 44 ( 3 ) makes it clear that a right to alteration is provided for orders passed under subdivision 44 ( 2 ) , we do non believe that this could intend that subdivision 44 ( 2 ) as it originally stood did non supply for power of alteration to the Collector under section59. In our sentiment, amendment does non do any difference. The erudite advocate for the plaintiff in error submitted that subdivision 44 ( 3 ) is in the nature of a particular proviso and should be construed as an exclusion to subdivision 59 on the rule of harmonious building. In support of this supplication the erudite advocate referred to the determination in The J.K. Cotton Spinning & A ; Weaving Mills Co. Ltd. v. State of U.P. & A ; Ors. ( 1 ) . In interpreting the commissariats of clause 5 ( a ) and clause 23 of the G.O. concerned, this Court held that the regulation of harmonious building should be applied and in using the regulation the tribunal will hold to retrieve that to harmonize is non to destruct and that in construing the legislative acts the tribunal ever presumes that the legislative assembly inserted every portion thereof for a intent and the legislative purpose is that every portion of the legislative act should hold consequence, and a building which defeats the purpose of the rule-making authorization must be avoided. This determination does non assist the plaintiff in error for in our position in using the regulation of harmonious building with a position to give consequence to the purpose O ( the legislative assembly the tribunal will non be justified in seting a building which would curtail the revisionary legal power of the Collector and the Board of Revenue. It may be noted that the Act is of exproprietory nature and the finding of the extra lands is done by the Revenue Officer and on entreaty by the Revenue Divisional Officer. In such fortunes, it is merely 13roper to assume that the legislative assembly intended that any mistake or abnormality should be rectified by higher governments like the Collector and the Board of Revenue. In our position it will be in conformance with the purpose of the legislative assembly to keep that subdivision 59 confers a power of alteration of an order passed under subdivision 44 ( 2 ) of the Act. The erudite advocate following referred to a determination of this Court in The Bengal Immunity Company Limited regulation of building is stated at p. 791 in the undermentioned footings by Venkatarama Ayyar, J. talking for the Court: “ It is a central regulation of building that when there are in a Statute two commissariats which are in struggle with each other such that both of them can non ‘stand, they should, if possible be so taken that consequence can be given to both, and that a building which renders either of them inoperative and useless should non be adopted except in the last resort. This is what is known as the regulation of harmonious building. One application of this regulation is that when there 561

is a jurisprudence by and large covering with a topic and another covering peculiarly with one of the subjects comprised in this, the general jurisprudence is to be construed as giving up to the particular in regard of the affairs comprised therein. ” Interpreting subdivision 59 as confabulating a power of alteration against an order passed under subdivision 44 ( 2 ) is non in any manner contrary to the rule laid down in the above determination.

Jagdish Singh V Lt. Governor Delhi And Others on 11 March, 1997

Showing the contexts in which harmonious building appears in the papers subsequently. The Registrar, nevertheless, committed serious mistake in construing Sub-rule ( 2 ) of Rule 25 and directing surcease of rank of the plaintiff in error from both the societies. Mr. Bobde besides argued that if Sub-rule ( 2 ) of Rule 25 is interpreted to intend that on incurring such disqualification by operation of jurisprudence one ceases to be a member of both societies, so Rule 28 confabulating power on the Registrar to give a written requisition to either or both the co-operative societies for surcease of the rank, would go inoperative, and hence, attempts should be made ” for harmonious building where under both the commissariats can run. Mr. Bobde besides argued that under Rule 25 ( 1 ) the trade stoppage upon a individual to go a member of a co-operative society is at that place if the said individual or his partner or any of his dependent kids is a member of any other lodging society. The disqualification in inquiry is therefore attached to going a member of co-operative society if he is already a member of another society. Under Sub-rule ( 2 ) of Rule 25 a deemed surcease accrues evidently in relation to a society in regard of which the disqualification is attached inquiry that arises for consideration is: whether a individual who is a member of a lodging co-operative society holding incurred the disqualification under Rule 25 ( 1 ) ( degree Celsius ) ( three ) on being a member of a subsequent lodging society would discontinue to be a member of both the societies with consequence from the day of the month of the disqualification incurred by him. It is a central principal of building of a legislative act or the statutory regulation that attempts should be made in interpreting the different commissariats, so that, each proviso will hold its drama and in the event of any struggle a harmonious building should be given. Further a legislative act or a regulation made there under should be read as a whole and one proviso should be construed with mention to the other proviso so as to do the regulation consistent and any building which would convey any incompatibility or repugnancy between one proviso and the other should be avoided. One regulation can non be used to get the better of another regulation in the same regulations unless it is impossible to consequence harmonization between them. The well-known rule of harmonious building is that consequence should be given to all the commissariats, and hence, this Court held in several instances that a building that reduces one of the commissariats to a ‘dead missive ‘ is non a harmonious building as one portion is being destroyed and accordingly tribunal should avoid such a building. Bearing in head the aforesaid regulations of building if Sub-rule ( 2 ) of Rule 25 and Rule 28 are examined the obvious reply would be that under Sub-rule ( 2 ) the deemed surcease from rank of the individual concerned is in relation to the society pertaining to which disqualifications are incurred. A apparent reading of Rule 28 makes it crystal clear that the Registrar when becomes cognizant of the fact that an person has become a member of two co-operative societies of the same category which evidently is a disqualification under Rule 25 so he has the discretion to direct remotion of the said single from the rank of either or both the co-operative societies. If Sub-rule ( 2 ) of Rule 25 is interpreted to intend that deemed surcease of the individual concerned from rank of both the societies so the inquiry of discretion of the Registrar under Rule 28 will non originate.If the reading given by the Registrar incurred. In the instance in manus the disqualification which the plaintiff in error incurred was in regard of his rank of the Tribal Co-operative Housing Society Ltd. as he could non hold become a member of the said society as he was already a member of Dronacharaya Co-operative Group Housing Society, and hence, by operation of Sub-rule ( 2 ) he would hold to hold ceased to be a member from the Tribal Co-operative Housing Society right from the origin in November, 1983 and non from the Dronacharaya Co- operative Group Housing Society.

8. Apart from the aforesaid harmonious building of Sub-rule ( 2 ) of Rule 25 and Rule 28, on a apparent building of Rules 25 besides the same decision has to be arrived at. Sub-rule ( 1 ) disqualifies a individual for admittance as member of a lodging society if he or his partner or any of his dependent kids is a member of any other lodging society. The disqualification in inquiry evidently attaches to rank of the 2nd society and has no connexion with his rank of the first society. In position of the aforesaid trade stoppage contained in Sub-rule ( 1 ) to Govern 25, Sub-rule

Significance

  1. The tribunals must avoid a caput on clang of apparently beliing commissariats and they must interpret the contradictory commissariats so as to harmonise them.
  2. The proviso of one subdivision can non be used to get the better of the proviso contained in another unless the tribunal, despite all its attempt, is unable to happen a manner to accommodate their differences.
  3. When it is immpossible to wholly accommodate the differences in contradictory commissariats, the tribunals must construe them in such as manner so that consequence is given to both the commissariats every bit much as possible.
  4. Courts must besides maintain in head that reading that reduces one proviso to a useless figure or a dead lumbar, is non harmonious building.
  5. To harmonise is non to destruct any statutory proviso or to render it otiose.

Decision

As per this philosophy the tribunals must seek to avoid struggles between the commissariats of the legislative acts. Thus the commissariats must be so taken that the struggle between the two is avoided and each of them is given consequence and, for that purpose the range and significance of one may be restricted so as to give significance to the other besides.

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