MEANING, SCOPE, USE AND PRAGMATIC

PROBLEMS IN THE APPLICATION OF HARMONIOUS

CONSTRUCTION IN THE INTERPRETATION OF THE
CONSTITUTION

Submitted by: Submitted to:

GURU PRAKASH MS KAVITA SINGH

National Law Institute University, Bhopal

 TABLE OF CONTENTS
Introduction........................................................................................................................................................2

Part II: Scope and Application of Harmonious Construction............................................................................3

A. Judicial Decisions................................................................................................................................3

B. Analysis...............................................................................................................................................4

i. Conflict................................................................................................................................................4

ii. Application..........................................................................................................................................4

Problems that arise on the application of the Rule.............................................................................................5

Conclusion..........................................................................................................................................................7
INTRODUCTION
The process of statutory interpretation is not easy. At times, while interpreting such provisions, the
judges come across conflicting provisions. Since the legislature has become functus officio so far as the
particular act is concerned,1 the judge has no means other than applying his own mind to resolve such
inconsistency. Thus, the judge comes up with a harmonious construction so as to reconcile them and avoid
repugnancy.2 In the case of Venkataramana Devaru v. State of Mysore,3 Venkatarama Aiyar J. has defined
such a method of construction as, “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 paper seeks to elaborate on this method of interpretation with respect to the Indian Constitution.
The broad construction of the provisions,4 the relative importance of a set of articles over the others, 5 the
myriad interpretations given by the judges while harmoniously construing the same text, 6 makes it a good
subject to understand the scope, use and the problems in the application of the doctrine of harmonious
construction. Part I describes the scope and the application of harmonious construction in interpreting the
provisions of the Constitution. Part II describes the problems or ambiguities in identifying a conflict, or
identifying the provision whose effect has to be curtailed by the application of the doctrine. Part III
concludes the project.

1
Institute of Chartered Accountants of India v. M/s. Price Waterhouse, (1997) 6 SCC 312, ¶30.
2
Madanlal FakirchandDudhediya v. Shreee Changdeo Sugar Mills Ltd., AIR 1962 SC 1543 at 1551.
3
Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255 at p.268 [Hereinafter “Venkataramana Devaru”].
4
See M.S.M Sharma v. Krishna Sinha, AIR 1959 SC 395 [Hereinafter “M.S.M. Sharma”].
5
See I.C. Golaknath v. State of Punjab, AIR 1967 SC 1643 [Hereinafter “I.C. Golaknath”]; M.S.M. Sharma, supra note 4.
6
See K.M. Nanavati v. State of Bombay, AIR 1961 SC 112 [Hereinafter “Nanavati”] .
PART II: SCOPE AND APPLICATION OF HARMONIOUS CONSTRUCTION
A. Judicial Decisions
One of the first cases related to the doctrine of harmonious construction is Venkataramana Devaru
where the Supreme Court applied the rule in resolving a conflict between Articles 25(2) (b) and Article
26(b). The Court concluded that the right of every denomination to manage its own affairs in matters of
religion [Article 26 (b)] is subject to the law made by the state in for social welfare and reform under Article
25 (2)(b). Such a view was giving effect to both the provisions and a contrary construction would put Article
25(2) (b) wholly out of operation for denominational temples.7
The majority speaking through Das C.J. in the case of M.S.M Sharma too made Article 19(1)(a)
subject to the parliamentary privilege of punishing any person who publishes the proceedings of the House
under Article 194(3) so as to prevent the complete negation of Article 194(3). 8 Sarkar J. dissenting from
Subba Rao J. gave a similar conclusion in his dissenting opinion in In Re: Under Article 143, Constitution of
India.9
The Supreme Court in Nanavati’s decision explained the aspect of conflict in a particular field.
Talking of executive and judicial powers regarding the suspension of sentence Sinha C.J. pointed out that
the field in which the power is exercised does not depend upon the authority exercising the power but upon
the subject-matter.10 Hence the court concluded that the broad power under Article 161 does not deal with
suspension of sentence during the time Article 142 is in operation and the matter is sub judice in the
Supreme Court.11
A similar rule was applied in South India Corporation (P) Ltd. v. Secy., Board of Revenue,
Trivandrum,12 where the Supreme Court held that the general provisions under Article 372 of the
Constitution regarding the continuance of the existing laws is subject to Article 277 which is a special
provision relating to taxes, duties, fees lawfully levied at the commencement of the Constitution.13
Courts have also applied the principle of harmonious construction to entries under the VII schedule
in cases where it is possible to arrive at a reasonable and practicable construction of the language so as to
reconcile the respective powers they contain and give effect to all of them. 14 However, court must also give
effect to the doctrine of pith and substance so as to prevent incongruous laws of the Union and the states
simultaneously.15

7
Venkataramana Devaru, supra note 3, ¶29.
8
M.S.M. Sharma, supra note 5, ¶37.
9
In Re: Under Article 143, Constitution of India, AIR 1965 SC 745¶190 [Hereinafter “Article 143 Case”].
10
Nanavati, supra note 6, ¶24.
11
Nanavati, supra note 6, ¶24.
12
AIR 1964 SC 207 at 215.
13
Ibid.
14
Calcutta Gas Company (Proprietary) Ltd. v. The State of West Bengal, AIR 1962 SC 1044, ¶16.
15
Gwyer C.J., in Subrahmanyan Chettiar v. Muthuswami Goudan, AIR 1941 FC 47.
 B. Analysis
The cases lead to certain conclusions regarding the application of the doctrine.
i. Conflict
The doctrine is a very wide one and where the conflict need not be from a particular area. 16 Hence the
approach of Sinha J. seems more consistent with logic when he says that the actual content of the rules must
be considered to find out if there exists a conflict or not.17
ii. Application
As Subbarao puts it, the doctrine of harmonious construction is susceptible to diagrammatic
representation.18
In one of the situations the two rules form concentric circles. In such a situation the inner circle must be
allowed to prevail. Hence limited power represented by the inner circle shall prevail and the wider rule has
an application outside the limted range conceded to the inner circle. 19 Thus the rule provides the test to
identify the rule from which the excision is to be affected.20
In the second situation, the two rules are intersecting circles. In such cases, the problem is delicate as the
court has to see from which rule, can the provision be lopped off. Courts have relied on the judicious
balancing of interest to resolve such conflicts based on their political philosophy and yardstick of political
welfare.21
In the constitutional framework, such a determination of the case is never by a straight jacket formula
even in the case of two concentric circles because of the difference of opinion in the relative relevance of the
articles. For example in harmonising Art 19(1)(a) and 194(3), both Das C.J. and Subba Rao J. came to
different conclusions.22 The next section highlights these problems in the course of interpreting the
constitution.

PROBLEMS THAT ARISE ON THE APPLICATION OF THE RULE

From a purely theoretical perspective, the Rule of Harmonious Construction does not posit any
complication. It states the inevitable consequence when there is an apparent conflict between two
provisions: reading them in such a manner that makes them both workable. However, on application, this
seemingly innocuous rule of statutory interpretation throws up many tricky questions that need to be
answered.
16
Subbarao G.C.V., Fundamental Rights in India Versus Power to Amend the Constitution, .4 Tex. Int'l L. F. 291 (1968).
[Hereinafter “Subbarao”]
17
Supra note 10.
18
Subbarao, supra note 16.
19
See Nanavati, supra note 6, ¶24; Cf Sarkar J. in Article 143 Case, supra note 9.
20
Subbarao, supra note 16.
21
Ibid.
22
M.S.M. Sharma, supra note 5.
 The foremost issue is to determine whether there is a “conflict” at all. This can only be done by
examining the provisions when they are in actual operation and the effect they produce. Merely because they
confer power upon different limbs of the State does not automatically eliminate the possibility of overlap
and conflict. This common mistake was made by J. Sarkar in his dissenting opinion in the Nanavati case 23
where he accepted the interpretation advanced by Mr. H.M. Seervai (Advocate General of Bombay) 24 that
Article 161 and Article 142 operated in different fields, the former in the executive field and the latter in the
judicial field and that there could be no conflict between the two.
The majority did accept that the provisions conferred powers upon two separate entities. Yet, there
was existence of a conflict because these powers dealt with the same subject matter, namely, the suspension
of the sentence passed upon a convicted person 25. Even if the Governor confined himself to the executive
field in grant of pardon/suspension of sentence and the Court operated within the judicial sphere when
suspending a sentence, there will be conflict if their activities (within the bounds of their respective fields)
were mutually contradictory.
Therefore, the actual content of the two rules has to be considered to ascertain conflict, and not who
is exercising power under those rules.
It is inevitable that in the application of the rule of Harmonious Construction, either one, or both of
the two provisions will be circumcised. Contrary to the opinion of J. Sarkar 26 in In Re: Art. 143, it is not
possible that two mutually antagonistic provisions operating in the same field can both be left absolutely
intact and this necessary evil be avoided27.
When the conflict is between provisions, one which has a wider application and the other, which has
a narrow application, the former is circumscribed to the extent if conflicts with the latter and the latter is
preserved intact. This is done to prevent the latter (inner circle) from being eclipsed by the unabated
operation of the former (outer circle).
This was the case in Golaknath28 where the two provisions, when represented diagrammatically, were
concentric circles and the inner circle was preserved because it would not wholly displace the outer circle.
Article 368, the outer circle, confers unfettered powers of amendment of any provision of the Constitution.
If the power of abrogation under Art. 368 is exercised with full effect, it will extend to those provisions also
which expressly state that they are not subject to amendment, by any “law” (namely Art. 13(2), represented
by the inner circle).

23
Nanavati , supra note 6.
24
Nanavati v. The State of Bombay, supra note 6, ¶ 9.
25
Nanavati v. The State of Bombay, supra note 6, ¶ 24.
26
Article 143 case, supra note 9,¶ 193.
27
Subbarao, supra note 16 at. 320
28
I.C. Golak Nath, supra note 5, ¶ 14.
 Thus, to prevent the eclipse of Art. 13(2), the rule of harmonious construction was applied by
curtailing the scope of the outer circle. “Amend” in Art. 368 was interpreted to include the power to amend
all provisions except those which specifically prohibit amendment. Thus, Art. 13(2) in effect reads as a
proviso to Art. 368 as it prohibits amendment by any “law”, including constitutional amendments.
The problem arises when the question is whether the correct representation of the two provisions is
concentric circles or intersecting circles. This issue was faced by the Supreme Court in the case of In Re:
Art. 14329 where the conflict was between the freedom of publication contained in the freedom of speech
and expression in Art. 19(1)(a) and the power of the Parliament to punish for its contempt including for
publication of proceedings of the House, in Art. 194(3).
The majority preserved the freedom of publication and curtailed the privileges of the Parliament to
this extent, because otherwise, the former provision, represented by the inner circle would have been
completely eclipsed by the operation of the latter and was in danger of extinction. It is difficult to reconcile
with this view because the curtailment of the freedom of publication of the proceedings of the House will
not completely eclipse the freedom of publication. Thus, Art. 19(1)(a) and Art. 194(3) cannot be represented
as concentric circles.
On the other hand, as suggested by the minority, the conflict involved was really one to be diagrammatically
represented by two intersecting circles, the intersection representing the area of conflict, namely, the
freedom of publication of the proceedings of the House. In such a conflict between two provisions equally
paramount, the Judiciary applies the balance of interests test to determine from which provision the
offending portion be removed.

CONCLUSION
It is an inescapable reality that in a country like India which necessarily requires a plethora of
legislation for its smooth functioning, there will be ample opportunities for the application of the rule of
harmonious construction. Conflicts emerge when the enactments are actually put into force, even though
power under the provisions may have been assigned to different entities.
Thus, it is of paramount importance to firstly, identify situations of conflict and secondly, categorise
the conflict as one that can be diagrammatically represented as concentric circles or intersecting circles.
In the former, harmonious construction is effected by circumscribing the outer circle provision to the
extent that it does not eclipse the inner circle, while retaining the inner circle intact.
The latter situation poses a far greater challenge because harmony has to be achieved between two
equally paramount antagonistic provisions, neither subject to the other. By a judicious balancing of interests,
the Court has to decide from which provision the offending portion has to be excised. The political
29
Supra note 26
philosophy of the judges and the yardstick of public welfare which they adopt will unconsciously determine
which rule is to be controlled and curtailed.
It is a particularly difficult situation for the judiciary to resolve where there is a head on collision
between two provisions so the judicial exegesis should be directed at avoiding such a situation. Since the
conflict arises because of the meaning of the words used in the provisions, it is invariably found that by
restricting the meaning of one or the other harmony can be produced. This is the primary objective of the
rule of harmonious construction and express circumcision of either provision is a measure to be used as a
last resort.