Doctrine of Harmonious Construction

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 1 Calcutta Gas Co. v. State of W.B., AIR 1962 SC 1044 3 AIR 1956 SC 676 2

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 5

AIR 1963 SC 703 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 703 (1971) 2 SCC 261 8 AIR 1964 SC 1823 7

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 886 Durgeshwa v. Secretary Bar Council, AIR 1954 All 728; Sudhir Chandra Nawn v. Wealth Tax Officer, AIR 1969, SC 59 11 AIR 1951 SC 69 12 AIR 1972 SC 1061 10

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.