Doctrine of Harmonious Construction

It is a sound canon of interpretation that courts must try to avoid a conflict between the

provisions of Statute. The rule of reconciliation on the Entries was propounded for the

first time in the case of in re C.P. and Bera Act.1 It is the province of the courts to

determine the extent of the authority to deal with subjects falling within the legislative

purview of each legislature. To avoid conflict, the Courts should read Entries of two Lists

together and the language of one Entry can be interpreted, and modified too, with the

help of another Entry. Interpreting Entries 24 and 25 of the State List harmoniously, the

Supreme Court held that ‘gas and gas works’ being in Entry 25 would not fall in the

general Entry 24’Industry’ and observed:2

It is also well settled that widest amplitude should be given to the language of

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 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 sections, so as to reconcile the respective

powers they contain and to give effect to all of them.

In Tika Ramji v. State of Uttar Pradesh,3 the position of the industries was clarified by

Supreme Court. In the instant case the vires of U.P. Sugarcane (Regulation of Supply and

Purchase) Act, 1953 was involved. It was contended that sugarcane being ‘controlled’

industry fall within the jurisdiction of the Union List by virtue of Entry 52 of List I falls

within the legislative purview of Parliament. The Supreme Court, therefore, had to

explain 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 establish that except ‘controlled’ industries, the

industries generally fells within the State Sphere. Entry 27 of List II gives power to State

to regulate the production, supply and distribution of ‘goods’ subject to provisions of

Entry 33 of List III. The sugar industry being controlled industry, the distribution, supply

and production of the product of this controlled industry viz. Sugar as a finished product,

1 AIR 1939 FC 12 Calcutta Gas Co. v. State of W.B., AIR 1962 SC 10443 AIR 1956 SC 676

would fall within the legislative jurisdiction of the both Central and State Legislature by

virtue of Entry 33of list III. But, by virtue of Entry 27 of List II, the sugarcane would be

within the State’s jurisdiction because sugarcane can be regarded as raw material for

sugar industry. Dealing of sugarcane under the term ‘goods’ in Entry 27 of List II, by the

U.P. Act Sugarcane (Regulation of Supply and Purchase) Act, 1953, was held valid.

The position of industries after the Tika Ramji case may be explained as follows:

as regards the industries falling with the State Spheres the State have a comprehensive

regularity power covering all aspects of any such Industry. The States can regulate raw

materials for such industries under Entry 27, List II as ‘goods’ and also the finished

products of the same. As regard the centrally controlled industries, the process of

manufacture falls within the Central domain under Entry 52, List I; control over finished

products of these industries also falls under Central jurisdiction under Entry 22 in List III.

As regards the raw materials of these industries power lies mainly with the States under

Entry 27, List II, except in so far as the commodities specified in Entry 33, List III, which

the Centre may regulate. Regulatory power regarding centrally controlled industry would

thus appear to be somewhat fragmented in so far as some raw materials pertaining to

these industries may fall outside the Centre State co-ordination. Failure by a State to

ensure adequate supply of raw materials to an industry may hamper the same and the

Centre may be unable to take any corrective measures.

The judgment of the Supreme Court in Gujrat University v. Shri Krishna4 has

aroused the discussion on the area of higher education in India. The question in the

instant case was whether the Gujrat State Legislature was competent to enact the Gujrat

University Act, 1949, which prescribed Gujrati or Hindi as the exclusive medium in

which instruction is to be imparted in State Universities. The relevant Entries were the

Entry II of the State List reading “education including universities subject to items 63, 64,

65 and 66 of list I…5 and Entry 25 of List III”. By virtue of Entry 66 of List I, the

Parliament was authorized to legislate to “Co-ordination and determination of standards

in institutions of higher education…” the University of Gujrat contended that Entry 66 in

List I should be interpreted in restrictively and urged that the prescribing of medium of

4 AIR 1963 SC 7035 Entry 11, List II, Omitted by the Constitution 42nd Amendment Act, 1976

instruction in the University doesn’t come within legislative purview of the Parliament.

The Counsel for the University contended that this aspect of the education falls within the

Entry 11 of List II. The Court rejected the contention of the University and struck down

the impugned enactment in so far as it purported to prescribe the exclusive medium. The

Supreme Court pointed out that the word ‘education’ in Entry 11, List II is of wide

import and prescribing of medium maybe regarded as an ancillary power unless it is

taken away by necessary amendment to the contrary. The Supreme Court explained that

the power of the Centre to make law in respect of medium of instruction is contained in

entries 63 to 65 and it also arises under Entry 66 in List I insofar as it has a direct bearing

and impact upon the legislative head of co-ordination and determination of standards in

instructions of higher education. Thus, Entry 11 of List II and Entry 66 of List I overlap.

Therefore, there should be construed in such a manner so as to avoid conflict. To extent

of overlapping, the power of Centre under Entry 66 must prevail over the power of State

under Entry 11. The power to prescribe medium of instructions has been excluded from

Entry 11, List II. Therefore, it is submitted that, the power of the Centre under Entry 66,

List I was interpreted broadly by the Supreme Court.

The Gujrat University6 case was quoted with approval by the Supreme Court in

D.A.V. College, Bhatinda V. State of Punjab.7 In this case the Supreme Court struck

down the provisions of the Punjab University Act, 1961, prescribing Punjabi as the sole

medium of instruction on the ground that this aspect of education is covered under Entry

66, List I, therefore the State was not competent to legislate in respect of medium of

instruction in the colleges and universities imparting higher education.

The rationale of Gujrat University case appears to have been limited by the

Supreme Court in Chitralekha v. State of Mysore.8 The question before the Court was

whether prescribing of higher percentage of marks for extracurricular activities for

admission to medical and engineering colleges lowered the standard of the education and

affected the power of the Centre under Entry 66, List I. It was ruled by the Supreme

Court that if the impact of the State law is so heavy or devastating as to wipe out or

appreciably abridge the Centre field, it might be struck down. But it could not be decided

6 AIR 1963 SC 7037 (1971) 2 SCC 2618 AIR 1964 SC 1823

on speculative or hypothetical reasoning: that was a question of fact to be ascertained in

each case. It is not possible to hold that if a State legislature made a law prescribing

higher percentage of marks for extra curricular activities in the matter of admission to

colleges, it would be directly encroaching on the field covered by Entry 66 of List I.

In O.N.Mohindroo v. Bar Council,9 the constitutionality of the Advocates Act,

1961 which prescribed the qualifications, enrollment, right to practice and discipline of

the advocates, was sustained by applying rules of harmonious construction. The power

conferred by Entry 26 in List III “Legal, Medical and other professionals,” was general

and Entries 77 and 78 are carved out of reading ‘Persons Entitled to practice before the

Supreme Court and High Court’ the general power under Entry 26 in List III. Therefore,

the Centre is exclusively entitled to legislate in respect of person entitled to practice

before the Supreme Court and High Court.10

The rule of avoidance between the two Entries in the two Lists is also applicable

in case of a conflict between two Entries in the Same List. Entry 3, List II of the

Constitution relates to ‘Administration of Justice, Constitution of Courts, while Entry 65

deals with jurisdiction and powers of…Courts’. The Supreme Court had an opportunity

to interpret these two entries in State of Bombay v. Narottam Das Jethabhai.11 The

Supreme Court read the two Entries together and held that while Entry 3 of List II

conferred power on the State Legislature to provide general jurisdictions to court, Entry

65 conferred the special jurisdiction with regard to the matters included in List II, while

enacting a law in respect of those matters. To put in another words, the words

“Administration of Justice, Constitution of Courts must be construed restrictively

excluding from their scope ‘jurisdiction and powers of courts.’ The harmonious

construction prevents Entry 65, List II from being futile and meaningless.

In Union of India v. H.S. Dhillon,12 the construction adopted by the Supreme

Court has titled the balance of powers in favour of the States. The vires of the Wealth Tax

Act,1957, as amended by the finance Act of 1969, was challenged on the ground that the

subject matter did not fall within the legislative purview of the Parliament but comes

9 AIR 1968 SC 88610 Durgeshwa v. Secretary Bar Council, AIR 1954 All 728; Sudhir Chandra Nawn v. Wealth Tax Officer, AIR 1969, SC 5911 AIR 1951 SC 6912 AIR 1972 SC 1061

under Entry 49 of List II. Rejecting this contention, the Supreme Court held that the

impugned Act can be saved under Entry 97, List I. Sikri, C.J., speaking for the Supreme

Court, observed that the only question to be asked is: is the subject matter sought to be

legislated included in List II or List III or is the tax sought to be levied mentioned in List

II or List III. No question should be asked about List I. It was stated that if any Central

Act is challenged, it would be reasonable for the Court to judge the validity of the Act by

enquiring whether the impugned Act fell under any Entry of List II. If it falls under List

II, then the case is over. If it does not fall under any Entry of List II, then the Court

should not plunge itself into the discussion of inquiring that which Entry of List I, except

97, will take care of it. Entry 97, in such case, would be sufficient to take care of the Act.

This construction gives undue higher position to Entry 97, relegating Entries 1-96 to

subordinate lace and making them only the illustrations of residuary power found in

Entry 97 of List I. it submitted that such construction upsets the balance drawn by the

framers of the Constitution between Union and the States titling the scale in favour of the

States. The object of providing residuary power is to confer power only in respect of a

matter which could not be foreseen or contemplated at the time of the framing of the

constitution. It is in consonance with the spirit of the Constitution to give same status to

the enumerating in Entries 1-96 in List I as given to the enumerations in List II to avoid

restrictive interpretation of Entries 1-96 of List I. Harmonious Construction does not

imply destroying of One Entry at the expense of another Entry.