1 CIT v. Hindustan Bulk Carriers, (2003) 3 SCC 57, P. 74
1 CIT v. Hindustan Bulk Carriers, (2003) 3 SCC 57, P. 74
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Every individual living 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.
This article will focus on the rule of doctrine of harmonious construction in the interpretation and
construction of statutes.
According to this rule, a statute should be read as a whole and one provision of the Act should be
construed with reference to other provisions in the same Act so as to make a consistent
enactment of the whole statute. Such an interpretation is beneficial in avoiding any inconsistency
or repugnancy either within a section or between a section and other parts of the statute. The five
main principles of this rule are:
1) The courts must avoid a head on clash of seemingly contradicting provisions and they
must construe the contradictory provisions so as to harmonize them.1
A familiar approach in all such cases is to find out which of the two apparently conflicting
provisions is more general and which is more specific and to construe the more general one so as
to exclude the more specific. 6 The question as to the relative nature of the provisions, general or
special, has to be determined with reference to the area and extent of their application either
generally or specially in particular situations.7 This principle is expressed in the maxims
Generalia specialibus non derogant, and Generalia specialibus derogant. The former means that
general things do not derogate from special things and the latter means that special things
derogate from general things.8 The rule of harmonious construction can also be used for
resolving a conflict between a provision in the Act and a rule made under the Act. 9 Further this
principle is also used to resolve a conflict between two different Acts10 and in the making of
2 Ibid.
3 Sultana Begum v. Premchand Jain, AIR 1997 SC 1006, pp. 1009, 1010.
4 CIT v. Hindustan Bulk Carriers, (2003) 3 SCC 57, p. 74.
5 Ibid.
In Venkataramana Devaru v. State of Mysore14, the Supreme Court applied the rule of
harmonious construction in resolving a conflict between Articles 25(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 Sinha15, 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, with regard to the above judgment, in Special Reference No. 1 of 196416, 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.18
An interesting question arose in the case of Sirsilk Ltd. v. Govt. of Andhra Pradesh22. 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.
21 Peoples Union for Civil Liberties v. U.O.I, AIR 2004 SC 1442. (Government order for non- disclosure of the
report of the Atomic Energy Regulatory Board Privilege was held justified).
22 AIR 1964 SC 160.
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 particular 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 exercise of the power, or be performed before certain
other powers can be exercised, the statute may be regarded as mandatory.25
Ordinarily the words ‘shall’ and ‘must’ are mandatory, and the word ‘may’ is directory, although
they are often used interchangeably in legislation.26
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.
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.
The court then referred to the case of State of Bihar v. D.N. Ganguly27where 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 the purpose of 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 27
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 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 are in conflict with each other.
A further example can be found in Cantonment Board, Mhow v. M.P. State Road Transport
Corporation27, where Section 6 of the Madhya Pradesh Motor Vehicles Taxation Act, 1947 was
interpreted. Section 6 prohibits a local authority to impose “a tax toll or license fee in respect of a
motor vehicle”. Section 3(1) of the Taxation Act authorizes imposition of a tax on “motor
vehicles used or kept for use” at the specified rates. Section 127(1) (iii) of the Madhya Pradesh
From the above illustrations we can see that the principle of harmonious construction for its
application requires the following four steps:
(i) 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.
(ii) Give full effect to both of them and then reduce the conflict.
(iii) Out of the two conflicting provisions choose wider and narrower scope of these two
separately and,
(iv) From the wider provision, subtract the narrow and see the consequence. If the
consequence is as reasonable as to harmonize both the provisions and it gives their
full effect separately, no further inquiry is required. While doing such harmonization
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 require to be given their full effect in
scope.
When one section of an Act takes away what another confers, a non- obstante clause must be
used.28 In the absence of a non- obstante clause in such a case, a head on clash will occur. It is the
duty of the court to avoid such situations and whenever it is possible to do so, the conflicting
provisions should be construed in such a manner so that they harmonize. The Court must try to
find out the extent to which the legislature had intended to give one provision an overriding
Conclusion:
Statutes are drafted by the legislature and there is every possibility of situations of ambiguity,
conflicts, anomalies, absurdities, hardships, repugnancy, redundancy etc. In such situations, the
rules of interpretation of statutes come into play and the provisions are construed so as to give
maximum effect to them and to render justice to the situation at hand. The principle of
harmonious construction plays a very important role in interpreting statutes and is used in
29 Castrige v. Page, (1853) 138 ER 1278; Eastbourne Corporation v. Fortes Ltd., (1959) 2 All ER 102 CA; King v.
Dominion Engineering Co. Ltd., AIR 1947 PV 94.
abundance of cases. It helps in simplifying complicated issues and makes delivering judgments
much easier. Therefore, like the many rules of interpretation of statutes, the importance of the
rule of harmonious construction is also understood and felt by the judiciary.
It was rightly said by George Washington, ‘The administration of justice is the firmest pillar of
the government.’ Thus, in keeping with this thought, the judiciary should interpret the statutes
properly and intelligently apply the rules for interpretation of statues to render quick justice to
the citizens of the country.
BIBLIOGRAPHY:
Websites:
• http://www.caaa.in/Image/Interpretation%20of%20Statutes.pdf
• http://www.ijtr.nic.in/articles/art21.pdf
• http://sip.ucoz.com/Executive/Module_1/GCL/interpretation_of_statutes.pdf
Books: