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Doctrine of Harmonious Construction

Law is very important for the society it serves as nerves to the society, law is the thing which gives guidance to society for smooth functioning, law balance the society and behaviour of the individual and secure the rights of the people, it also divides the powers of the governments into three bodies that are Legislative, Executive and Judiciary; and, no body has the power to interfere in other work. The main function of the law is to prevent conflict in society.[i] The judiciary is there to enact, implement, and interpret the laws. In the interpretation, The Court describes the things in such a manner that prevent the conflict arise in the statute, and the interpretation is also to describe the real Intension and prevent errors from the statute[ii]. One of our doctrine is based upon the Interpretation of the Statute is ‘The Doctrine of Harmonious Construction’.


Understanding the Doctrine and its Scope

Whenever there is any conflict arises which is violating the other provision of the same act in the Court then, the Court has a very important doctrine to adopt and follow in such cases which is the Doctrine of harmonious construction. The meaning of the Harmonious Construction is that when there is any of the provision or any more than two provisions of the same statute are conflicting with each other so the Court interprets them in such a manner that the statute should be read as a whole to effect should be given to both provisions of the Act, and maintain the harmony in both of the Provision of the Act.

This doctrine cohesive with two Latin maxims; ‘Generalia Spelibus non derogant’[iii] which means there is a conflict between the provisions so for the purpose of interpreting them produce a special provision. And ‘Generalibus specialia derogant’[iv] which means special things detract from general things. Which follows a very simple premise for dividing that effect equally which s that every statute has a purpose and the Court express that true Intention by reading the statute as a whole.


Principals of the Doctrine

In the case of CIT v. Hindustan Bulk Carrier[v], the Supreme Court gave five principles for interpreting the statute are as following:

1. It’s the duty of the Court to avoid the head-on crash and if, there is any of the Provisions are conflicting so maintain the harmony between them.

2. Any of the provision cannot be used to defeat the other provision of the act unless and until Court finds the way to maintain the harmony between the conflicting provisions, and if the Court founds it impossible to maintain the harmony so, the decision of the Court shall prevail.

3. If the Court founds it impossible to interpret as to maintain harmony so, the Court will find the way where the effect is given to both.

4. The Court should keep in mind while interpreting the provisions of the statute that the Court should not reduce the power of the provision that the other provision overrules on the other one. So, the effect is to give both the provisions equally.

5. Harmony does not mean to any of the statutory provisions destroyed or render fruitfulness.

Whenever there is a conflict between any provisions of the identical statute so the Court should adopt the doctrine of Harmonious Construction and also should keep in mind that the statute should be read as a whole, both the provisions or the part of the statute should be from the same act as to remove repugnancy, that should bring harmony in the list Schedule 7 of the Indian Constitution as mention, in the case where to harmonize is impossible so the decision of the Court should prevail.[vi]


Conclusion

In the case of Shankari Prasad v. Union of India[vii], the Apex Court stated that, Article 13(2) of the Indian Constitution was in conflict and this Article says if the Parliament makes any law after the commencement of this Act which is violating the Part Three of the Indian Constitution which is the Fundamental right of the person so that law became Void, on the Other hand, the Article 368 of the Indian Constitution which gives the power to the Parliament to amend any law and there is no any exception is available in the Article, so anyhow Article 13(2) is imposing the limitation upon the Article 368 of the Constitution and both are contradictory of each other. So, the Supreme Court adopts the Doctrine of Harmonious Construction and held that, Article 368 has ‘absolute power’ in which the Parliament has the right to amend any law including the Fundamental Right and the Article 13(2) secure the Fundamental Rights and the Parliament cannot take away and also not reduce anything from the fundamental right.

In the Case of Raj Krishna v. Binod[viii], there are two provisions of the same Act are Contradictory of the Peoples Act, 1951 where the Section 33(2) says that any government servant can support any political person who is in the election including voting him but on the other hand Section 123(8) says the Public servant cannot assist any person who so ever is there to nominated in the election, except vote him. so here both the provisions are in conflict. So, Supreme Court adopt here adopt the Doctrine of the Harmonious Construction, and held that the Government servant can nominate a person, vote a person, and support him but other than this any public servant cannot support by any other way, so here Supreme Court make harmony between both of the provision of Act.

The doctrine of harmonious Construction is there to easily interpret, give the true sense of the statute and maintain the harmony between the Conflicted provisions of the statute, the doctrine comes into light when the Supreme Court also mentions some of the principals and the rules of the doctrine through following them the Court can easily interpret the law and give the equally and maximum effect to the both of the provisions.

[i] Kishan Tiwari, Impedance of the law in society, Legal Desire.com (April 4; 2021, 11:02 PM) https://legaldesire.com/article-importance-of-law-in-society/ [ii] Diva Rai, Statute Interpretation: Everything Important you should know about, Pleaders, (April 5; 2021 11:25 PM), https://blog.ipleaders.in/statute-interpretation/ [iii] R. v Greenhood, Justice Griffith of the Ontario Court of Appeal wrote, Duhaim’s Law Dictionary, (April 5, 2021, 9:40 AM), http://www.duhaime.org/LegalDictionary/G/GeneraliaSpecialibusNonDerogant.aspx#:~:text=%22The%20maxim%20generalia%20specialibus%20non,those%20of%20a%20special%20one.%22 [iv] Black’s Law Dictionary, (April 6, 2021; 9:45 AM) http://blacks_law.enacademic.com/11965/generalibus_specialia_derogant [v] Dharmadhikari, Commission of Income Tax v. Hindustan Bulk Carriers on 17th December, 2000, Indian Kanoon, (October 12; 2020, 1:43 PM) https://indiankanoon.org/doc/688236/ [vi] Shristi Khandelwal, Doctrine of harmonious Construction, Legal Sarcasm, (October 12; 2020, 2;52 PM), https://legalsarcasm.com/legal-notes/doctrine-of-harmonious-construction/ [vii] M.P. Shastri, Shri Shankari Prasad Deo v. Union of India and the state of Bihar 5 October; 1951, 1951 AIR 458, 1992 SCR 89, Indian Kanoon, (October 12; 2020, 10:43 PM) https://indiankanoon.org/doc/1706770/ [viii] S R Das, Raj Krushna Bose vs Binod Kanungo and others on 4 February, 1954, 1941 AIR 202, 1951 SRC 913, Indian Kanoon, (October 12;2020, 11:05 PM), https://indiankanoon.org/doc/56258/


The author of this post is Umar Saif Khan (a student at Faculty of Law, Integral University, Lucknow)

The views expressed in this article belong to the author/s and do not necessarily reflect those of the JCLJBlog. We welcome comments and contributions to this blog – please comment below.


#constitution #doctrine #harmoniousconstruction

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