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 Assistant Professor (Law) Dr. RML National Law University, Lucknow.
Sandesh Niranjan Roll No.115 Section-B U.G. I Semester
SIGNATURE
SIGNATURE
ACKNOWLEDGEMENT I express my gratitude and deep regards to my teacher for the subject Mr. Manwendra Kumar Tiwari 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 valuable information 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.
INDEX •
LIST OF CASES REFFERD
•
INTRODUCTION
•
THE RULE OF HARMONIOUS CONSTRUCTION
•
CASE ANALYSIS
•
CONCLUSION
•
BIBLIOGRAPHY
•
WEBLIOGRAPHY
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)
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
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 which appear 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.
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 21 which explains “Protection of life and personal liberty: No person shall be deprived of his life or
personal liberty except according to procedure established by law (Court interpreted procedure needs to be just)”; by Hon‟ble 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
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
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.
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 Court‟s judgment however 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 in exercise 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
declared that Punjabi “will be the sole medium of instruction and examination for the preUniversity 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 is sought 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
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 it difficult 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
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 legislative‟s 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
•
http://www.deadlylaw.com/2013/11/24/case-analysis-prof-yashpal-and-anr-v-stateof-chhattisgarh-and-ors-air2005-sc-2026/
•
http://www.deadlylaw.com/tag/harmonious-construction/
