THE RULE OF HARMONIOUS CONSTRUCTION

8/11/2019 THE RULE OF HARMONIOUS CONSTRUCTION

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DR. RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY

2014-15

FINAL DRAFT

FOUNDATION OF LAW

THE RULE OF

HARMONIOUS CONSTRUCTION

Under Guidance of: Submitted by

Mr. Manwendra Kumar Tiwari Sandesh Niranjan

Assistant Professor (Law)

Roll No.115

Dr. RML National Law University, Section-B

Lucknow. U.G. I Semester


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SIGNATURE SIGNATURE

ACKNOWLEDGEMENT

I express my gratitude and deep regards to my teacher for the subject Mr. Manwendra KumarTiwari for giving me such a challenging topic and also for his exemplary guidance, monitoring

and constant encouragement throughout the course of this thesis.

I also take this opportunity to express a deep sense of gratitude to my seniors in the college for

their cordial support, valuable information and guidance, which helped me in completing this

task through various stages.

I am obliged to the staff members of the Madhu Limaye Library, for the timely and valuableinformation provided by them in their respective fields. I am grateful for their cooperation during

the period of my assignment.

Lastly, I thank almighty, my family and friends for their constant encouragement without which

this assignment would not have been possible.


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INDEX

LIST OF CASES REFFERD

INTRODUCTION

THE RULE OF HARMONIOUS CONSTRUCTION

CASE ANALYSIS

CONCLUSION

BIBLIOGRAPHY

WEBLIOGRAPHY


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LIST OF CASES REFERRED

Sultana Begum V. Prem chand Jain ( AIR 1997 SC 1006)

S.P.Gupta v. Union of India (AIR 1982 SC 149)

Prof. Yashpal and Anr. V. Sate of Chhattisgarh (AIR 2005 SC 2026)

D.A.V. College, Bhatinda, etc. V. The State of Punjab and Ors.(AIR 1971 SC 1731)


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INTRODUCTION

What we speak or write are the means of communication. No problem arises when the words are

of single meaning, but those with plural meanings require the basic intend of the conveyor to be

understood. If two people conversing with each other, surely whatever be the uncertainty in the

language will be resorted at the same time. Let us suppose we discovered a letter written by a

soldier during World War I, to his wife, there will definitely be some words inconsistent with the

others and will be delivering more than one meaning. The best way to understand the real

meaning is to have a logical interpretation of his mind and the conditions that affected his writing

of the letter which will deliver the real intend of the writer. All that we can do is to solve the

mystery by our self as the soldier is not there to make us understand the whole meaning of the

letter; the same is the case with our judiciary as they by their own intellect have to interpret the

statutes made by the legislators. In most circumstances the language of the statute has a plain,

simple and to the point meaning. Interpretation becomes more important when it comes to

uncertain and repugnant provisions of the statues.

The reason for ambiguity of legislation is the basic nature of language. It is not always possible

to accurately convert the real intend of the legislation into written words. The versatility of


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language inevitably means that there will often be equally good or equally unconvincing

arguments for two competing interpretation. There are at times the provisions having more than

one meaning or the ambiguity in the language. The legislature becomes functus officio after

enacting the statues. The interpreters cannot go back to the legislature and ask for the exact

meaning of the statute as the legislators would not have assumed such a wide variety of

conditions while making of any particular statute.

Thus it is totally on the Judges to interpret such provisions so that both are effective. To avoid

further ambiguities legislation has provided us with the primary rules of interpretations.

HARMONIOUS CONSTRUCTION is one such rule where it is held that if two or more than

two provisions of the same act are inconsistent with each other then it must be interpreted in such

a manner that effect should be given to both.

THE RULE OF HARMONIOUS CONSTRUCTION

The rule of harmonious construction plays a significant role in interpreting two or more statues

or two or more parts of a statute when they are in conflict with each other. It follows a very

simple rule that every statute has a purpose and intent as per law and should be read as a whole.

It is the duty of the courts to avoid a head on clash between two sections of the same act and,

whenever it is possible to do so, to construe provisions whichappear to conflict possible so that

they harmonise.

As stated by Venkatarama Aiyar, J.; The rule of construction is well settled that when there are

in an enactment two provisions which cannot be reconciled with each other, they should be so

interpreted that; if possible, effect should be given to both. This is what known as the rule of

Harmonious Construction.2 That, effect should be given to both, is the very essence of the rule.


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Thus a construction that reduces one of the provisions to a useless lumber or dead letter is

not harmonious construction. To harmonise is not to destroy.

It is a settled rule that an interpretation which results in hardship, injustice, inconvenience or

anomaly should be avoided and that which supports the sense of justice should be adopted. The

Court leans in favour of an interpretation which conforms to justice and fair play and prevents

injustice.

On a conspectus of the case-law, the following principles are discernible:

It is the duty of the courts to avoid a head on clash between two sections of the Act and to

construe the provisions which appear to be in conflict with each other in such a manner as

to harmonise them.

The provision of one section cannot be used to defeat the provision contained in another

unless the court, despite all its effort, is unable to find a way to reconcile their

differences.

When it is impossible to completely reconcile the differences in contradictory provisions,

the courts must interpret them in such as way so that effect is given to both the provisions

as much as possible.

Courts must also keep in mind that interpretation that reduces one provision to a useless

number or a dead lumbar is not harmonious construction.

To harmonize is not to destroy any statutory provision or to render it otiose.

Interpretation of Part III (Fundamental Rights) of Indian Constitution and Article 21which

explains Protection of life and personal liberty: No person shall be deprived of his life or


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personal liberty except according to procedure established by law (Court interpreted procedure

needs to be just); by Honble Supreme Court was a milestone judgment and acknowledged the

meaning of Fundamental Rights to the people of India. The expound interpretation of this article

provided fundamental beneficial rights and the much wider implementation of Article 21.

Interpretation of locus standi has widened the scope for Public Interest Litigation through which

any public spirited person can file a petition on behalf of those who has no access to Court. Such

interpretations proved to be a good step with regards to process of justice door step in the

developing country like India. By expounding its area of interpretation the judiciary has been

criticized for entering into the territory of Legislation and quoted it as Over Judicial Activism.

CASE ANALYSIS

1. Prof.Yashpal and Anr. V. State of Chhattisgarh(AIR (2005) SC 2026)

FACTS

Professor Yashpal, an eminent Scientist and former Chairman of University Grants Commission,

has filed Writ Petition No.19 of 2004 under Article 32 of the Constitution by way of public

interest litigation for declaring certain provisions of The Chhattisgarh Niji Kshetra

Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002 as ultra vires and for quashing of

the notifications issued by State of Chhattisgarh in the purported exercise of power conferred by

Section 5 of the said Adhiniyam for establishing various universities. Under Section 5 of the Act

the State has been empowered to incorporate and establish a university by issuing a notification

in the Gazette and Section 6 permits such university to affiliate any college or other institution or


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to set up more than one campus with the prior approval of the State Government. The main

averments in the petition are that after coming into force of the Act, the State Government has

been, simply by issuing notifications in the Gazette, establishing universities in an indiscriminate

and mechanical manner without having slightest regard to the availability of any infrastructure,

teaching facility or their financial resources. In a short span of about one year as many as 112

universities were established and many of them had absolutely no buildings or campus and were

running from one room tenements. There was absolutely no regulation or supervision over them.

The legislation has been enacted in a manner which has completely done away with any kind of

control of University Grants Commission (for short UGC) over these private universities. The

guidelines issued by UGC on the courses being taught and award of academic degrees have been

given a complete go-by. The universities issued brochures for award of all kinds of degrees like

Member of the International Institute of Medical Sciences, Fellow of the International

Institute of Medical Sciences and many other similar degrees. The universities are wholly

incapable of imparting any education much less a quality education in absence of basic

infrastructure like classrooms, libraries, laboratories or campus. Nevertheless by conferment of a

legal status of a university, they have been empowered to award degrees. The private universities

are running professional courses without taking prior permission from regulatory bodies such as

All India Council of Technical Education (AICTE), Medical Council of India (MCI), Dental

Council of India (DCI), etc. The requirement of obtaining prior permission from the regulatory

bodies has not been followed and the universities are not under the control of any authority and

are at liberty to grant degrees, diplomas and certificates to gullible students. The State

Government has not done any verification or checking of universities after issuance of

notification in the Gazette, whether they fulfil any norms laid down by the statutory bodies,

which is essential for recognition of the degrees, diplomas and certificates awarded by such

universities. In absence of requisite permission from the statutory bodies, the degrees and

certificates awarded by such universities would not be recognized by the professional

organizations, as a result whereof the students studying in such universities and obtaining the

degrees there from would suffer immense loss, both in terms of money and also the time spent in

completing the courses. It is further averred that the University Grants Commission Act is made

nugatory as private universities are offering courses without subscribing to the standards laid

down by the UGC and there being no homogeneity of the course content, the degree awarded


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may not be of any value. The private universities are offering unheard of courses and degrees

which are not part of schedule to the UGC Act, which is in clear violation of Section 22 of the

aforesaid Act and the Schedule appended thereto. The minimum requirement of teaching staff as

laid down in the guidelines of UGC had also been given a complete go-by.

JUDGEMENT

In order to protect the interests of the students who may be actually studying in the institutions

established by such private Universities, it is directed that the State Government may take

appropriate measures to have such institutions affiliated to the already existing State Universities

in Chhattisgarh. Provisions of Section 5 and 6 of the Chhattisgarh Niji Kshetra Vishwavidyalaya

(Sthapana Aur Viniyaman) Adhiniyam, 2002 are declared to be ultra vires and are struck down.

As a consequence of such declaration, all notifications issued by the State Government in the

Gazette in the purported exercise of power under Section 5 of the aforesaid Act notifying the

Universities are quashed and such Universities shall cease to exist. If any institutions have been

established by such Universities, steps may be taken for their affiliation to already existing State

Universities.

CRITICAL ANALYSIS

I am in the favour of the judgment of Supreme Court. It is really an alarming situation that a

University providing degree is bereft of the basic infrastructure like classrooms, libraries,

laboratories or campus. If the general norms of the education are not fulfilled how one can even

think of talking about quality education. The act was passed to welcome private universities as

the state failed to gather enough funds for is education. In our education system students enroll

themselves easily on the basis of family background and getting degree the same way will be a

much awaited utopia for them. Special provisions are required to correct the loopholes in the

education system. Much transparency is required so that people do not treat education as a

money making business. State has the power under section 5 to establish a university and section

6 permits such university to affiliate a college with the prior approval of the State Government.


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Misusing the sections, the state government instead of having their own full fledge universities

affiliated a number of colleges. The motive of Project Report submitted was very noble as it

provides for the setting up of universities which will improve the literacy rate and over all

development of the state, but the non completion of the act have led to the problem for students

and specially their parents who wasted their time, money and lost the faith on the system of

governance. The Supreme Courts judgmenthowever provided a light of hope as the standard of

education must not be compromised whether it is in state list or in the union list.

2. D.A.V. College, Bhatinda, etc. Vs. The State of Punjab and Ors.

FACT OF THE CASE:

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 inexercise 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


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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 issought 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


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legislature has no competence to enact such a provision because that power is vested in the

Union Parliament under item 66 of List 1.

JUDGMENT

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.

CRITICAL ANALYSIS

In my opinion fixing the medium of a language is not justified. It shows the dominating nature of

one script as students can only attend examination in Punjabi (Gurumukhi script) and those who

have passed their matriculation with other medium will have a problem after enrolling

themselves in these universities. This will affect the education process as a whole as all those

who wish to pursue higher studies at good professional colleges in India and abroad will find itdifficult with Punjabi as the medium for the subjects like science. They will face difficulties in

appearing for competitive exams like Civil services, in research work and various other fields. It

is thus the state which must harmonies its power and give importance to the matters very much

related to the development of the state. Expressing your consciousness towards one language is


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good but one must harmonies it in such a way that other conditions do not become inconsistent

with the society.

CONCLUSION

Harmonise Construction has helped Judges to interpret the two confronting laws easily and has

proved fruitful in providing the justice to society at large. This does not mean that judicial

interpretations always predicted the true and as per intention of the legislation. More or less their

interpretation power has provided them a room for their own ideas to flourish. Although they in

most of the cases have tried their best to make sense out of miserably worded statute.

The legislatives incapacity to consider all the possible conditions of the future is reasonable, and

thus it the work of judiciary to make age old laws workable through logical interpretations

Judges must control their own thoughts and philosophy which affects the judgement and many a

times end up in making of new laws. Filling up of such gaps will ensure that the interpretation by

judiciary in the future will yield fruit bearing results for all.

BIBLIOGRAPHY

Principles of Statutory Interpretation by G.P.Singh.

WEBLIOGRAPHY


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http://www.deadlylaw.com/2013/11/24/case-analysis-prof-yashpal-and-anr-v-state-

of-chhattisgarh-and-ors-air2005-sc-2026/

http://www.deadlylaw.com/tag/harmonious-construction/
http://www.deadlylaw.com/2013/11/24/case-analysis-prof-yashpal-and-anr-v-state-of-chhattisgarh-and-ors-air2005-sc-2026/http://www.deadlylaw.com/2013/11/24/case-analysis-prof-yashpal-and-anr-v-state-of-chhattisgarh-and-ors-air2005-sc-2026/http://www.deadlylaw.com/2013/11/24/case-analysis-prof-yashpal-and-anr-v-state-of-chhattisgarh-and-ors-air2005-sc-2026/http://www.deadlylaw.com/2013/11/24/case-analysis-prof-yashpal-and-anr-v-state-of-chhattisgarh-and-ors-air2005-sc-2026/http://www.deadlylaw.com/2013/11/24/case-analysis-prof-yashpal-and-anr-v-state-of-chhattisgarh-and-ors-air2005-sc-2026/http://www.deadlylaw.com/tag/harmonious-construction/http://www.deadlylaw.com/tag/harmonious-construction/http://www.deadlylaw.com/tag/harmonious-construction/http://www.deadlylaw.com/2013/11/24/case-analysis-prof-yashpal-and-anr-v-state-of-chhattisgarh-and-ors-air2005-sc-2026/http://www.deadlylaw.com/2013/11/24/case-analysis-prof-yashpal-and-anr-v-state-of-chhattisgarh-and-ors-air2005-sc-2026/

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THE RULE OF HARMONIOUS CONSTRUCTION