INTERPRETATION OF STATUTES

TOPIC

Interpreting
Exceptions, Proviso, and Savings Clauses
in
Indian Constitutional Law
Interpretation of Statutes

TABLE OF CONTENTS

ACKNOWLEDGEMENT.........................................................................................................3
RESEARCH METHODOLOGY...............................................................................................4
RESEARCH OBJECTIVE.........................................................................................................4
RESEARCH QUESTION..........................................................................................................4
INTRODUCTION......................................................................................................................5
PROVISO...................................................................................................................................6
SAVINGS CLAUSES..............................................................................................................10
EXCEPTIONS.........................................................................................................................13
CONCLUSION........................................................................................................................15

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Interpreting
Exceptions, Proviso, and Savings Clauses in Indian Constitutional Law
Interpretation of Statutes

RESEARCH METHODOLOGY

The project employs only online secondary sources such as books, articles, debates, blogs and
newspaper articles. Authors used these resources to understand the concepts thoroughly and
analyses on interpretation of exceptions, proviso and saving clauses in context to Indian
constitutional law.
The citation that is followed is OSCOLA, 4th edition.

RESEARCH OBJECTIVE

1. To analyse the interpretation of proviso in context to Indian Constitutional law.

2. To study proviso, exception and saving clauses in interpretating statutes.
3. To analyse implication of saving clauses with case laws in context to Indian
constitutional law.

RESEARCH QUESTION

1. How is proviso helpful in interpretation of statutes of the constitution?

2. How is exception helpful in interpretation of statutes of the constitution?
3. How is saving clauses helpful in interpretation of statutes of the constitution?
4. How proviso, exception and saving clauses are different from each other?

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Exceptions, Proviso, and Savings Clauses in Indian Constitutional Law
Interpretation of Statutes

INTRODUCTION

The term interpretation means “To give meaning to”. Governmental power has been divided
into three wings namely the legislature, the executive and the judiciary. Interpretation of
statues to render justice is the primary function of the judiciary. It is the duty of the Court to
interpret the Act and give meaning to each word of the Statute.

Every portion of the legislation must be read and construed in harmony, according to the
most prevalent method for interpretation.

A proviso, exception, or saving clause is used to record limits in a legislation that has been
drafted in a generic manner.

Excluding or restricting the application of an existing provision, a proviso is a clause inserted

into a legislation.

One or more items are specifically excluded from the scope of the law's application when it is
deemed a "exception."

An exception to the general rule is provided by a "saving clause" in an enactment. Rights,

remedies, or privileges that were previously in place are protected from being wiped out.

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Exceptions, Proviso, and Savings Clauses in Indian Constitutional Law
Interpretation of Statutes

PROVISO

There are times when a proviso is necessary, however it should only be used when the broad
language of a law does not apply to a specific situation. Provisos, as noted by Craies in On
Statute Law, are sometimes introduced "to alleviate anxieties" or "to eliminate
misapprehensions." " Proposals are not to be read as if they were parallel acts, but as
constraints on the primary proposal," according to Dias in his essay. Preliminary clauses are
sometimes used as a way for legislators to limit the scope of an enacting clause or eliminate
the possibility of misunderstanding.

If you want to broaden the scope of anything, you can not utilize a proviso to do so. It just
adds an exception or restriction to the main clauses by its very nature. When a proviso is
included into a legislation, it is assumed that it applies only to the provision that comes before
it, unless otherwise stated in the text. Any provision of the law or the legislative purpose may
be qualified by the proviso.

There are times when a proviso is necessary, however it should only be used when the broad
language of a law does not apply to a specific situation. As a qualifier to the previous law, it
uses language that are too generic to be precise.

Some portions of a legislation include a clause that begins "provided that..." after the main
provision has been stated. Proviso refers to the portion of the section that begins with the
words "Provided that." Clauses are added to a legislation that accept or restrict the application
of enactment clauses by the addition of a proviso. Because of this, a proviso serves as a
qualifier or an exclusive clause in the legislation that would otherwise be covered by the
enactment if not for the proviso.

A 'proviso' normally serves the following purposes:

- To remove something from the main provision; or

- To qualify something contained in the main provision.

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Interpreting
Exceptions, Proviso, and Savings Clauses in Indian Constitutional Law
Interpretation of Statutes

A proviso may serve four different purposes:

1. the exclusion of certain clauses from the main legislation;

2. To make the legislation practical, certain circumstances must be met, which might
alter the whole premise of what was intended when it was enacted.
3. As an intrinsic component of the legislation, it might take on a life of its own and
become a vital part of the whole scheme;
4. It can only be used as an alternatives addendum to the legislation in order to clarify
the genuine intent of the legislative provision.

There was a declaration that the purpose of the proviso was to provide some kind of
exemption to the primary rule.1 It was determined by the Supreme Court that the underlying
objective indicated in the substantive law could not be defeated by a proviso. 2 Although a
proviso does not extend beyond the provision to which it is attached, the golden rule is to
interpret the whole Section, including the proviso, in such a way that they mutually illuminate
each other and produce a harmonious structure.3 An enactment's primary provisions cannot be
read in such a way that their proviso is rendered obsolete or ineffectual. 4 According to
another decision, the Supreme Court of India has stated that the proviso to Section 240 of the
Income-tax Act of 1961 may be declarative in part but not in the other portion when reading
the proviso.

Proviso To Article 3 Of The Constitution

Article 3 of the constitution of India states that:

“Formation of new States and alteration of areas, boundaries or names of existing States.—
Parliament may by law—

(a) form a new State by separation of territory from any State or by uniting two or more
States or parts of States or by uniting any territory to a part of any State;
(b) increase the area of any State;
1
Union of India v. Sanjay Kumar Jain (2004)
2
Vishesh Kumar v. Shanti Prasad (1980)
3
Union of India v. Dileep Kumar Singh (2015)
4
R. v. Leeds Prison (1964)
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Exceptions, Proviso, and Savings Clauses in Indian Constitutional Law
Interpretation of Statutes

(c) diminish the area of any State;

(d) alter the boundaries of any State;
(e) alter the name of any State.”

The proviso to this article states that:

“Provided that no Bill for the purpose shall be introduced in either House of Parliament
except on the recommendation of the President and unless, where the proposal contained in
the Bill affects the area, boundaries or name of any of the States5 , the Bill has been referred
by the President to the Legislature of that State for expressing its views thereon within such
period as may be specified in the reference or within such further period as the President may
allow and the period so specified or allowed has expired.”

In I.C. Golak Nath And Ors. vs State Of Punjab And Anr 5 the court further propounded on
the proviso to article 3 of the constitution. It was reiterated that “Proviso to that Article added
two additional criteria, namely, I the suggestion of the President and (ii) under the
circumstances stated, the opinions of the Legislatures. Regardless of the stated requirements,
it cannot be argued that the term "law" under the Article is not one produced through the
legislative process.”

Proviso To Article 7 Of The Constitution

Article 7 of the constitution state that:

“Rights of citizenship of certain migrants to Pakistan. —Notwithstanding anything in articles

5 and 6, a person who has after the first day of March, 1947, migrated from the territory of
India to the territory now included in Pakistan shall not be deemed to be a citizen of India.”

The proviso to this article states that:

To be clear, nothing in this article applies to anyone who has moved to the area now occupied
by Pakistan and then returned to India under a permit for resettlement or permanent return
issued by or authorized by law, and anyone who meets this criteria is treated as having moved
to India after July 19th, 1948 for the purposes of Article 6 clause (b).
5
AIR 1967 SC 1643
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Exceptions, Proviso, and Savings Clauses in Indian Constitutional Law
Interpretation of Statutes

In Firoz Meharuddin vs Sub-Divisional Officer And Ors6 the court further propounded on
the proviso to article 7 of the constitution. It was reiterated that “the proviso to Article 7
speaks of a person 'who has migrated' and 'having so migrated' has also 'returned under a
permit for resettlement or permanent return'. To such cases, had migrated' would be more
appropriate.”

6
AIR 1961 MP 110
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Exceptions, Proviso, and Savings Clauses in Indian Constitutional Law
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SAVINGS CLAUSES

A saving clause exempts a specific item from the statute's broader prohibitions. Repealing
ongoing processes usually results in this occurrence.

A saving clause in an act indicates that the legislature expects the whole act except for the
saving clause to be repealed if it were to be repealed. However, a saving clause does not have
the same legal standing as the Act itself; actions taken or neglected to be taken after the
expiration of the Act may still be preserved. In the context of future actions, a law may be
declared dead, but it might be revived in the context of previous acts.

A general saving law may be enacted by the legislature in order to protect specific rights and
existing legal procedures against repeal. As long as the repealing Act's stated purpose was
met, the legislation in question would not apply. However, it would not apply if its
implementation would thwart that purpose.

A saving is a provision intended to limit the impact of an enactment to which it refers in order
to protect an existing legal rule or right from the operation of that law. A saving is similar to a
proviso, except that it does not have a certain shape. The rule or right in question is already in
place, but the additional provisions of the section it pertains to are the focus of a proviso. As a
rule, a saving is not seen as conferring any new rights.

In Shah Bhojraj Kuverji Oil Mills v. Subhash Chandra Yograj Sinha 7, Rather than using an
incorporated "saving clause," the Supreme Court ruled that no portion of an Act could be read
backwards to determine whether it applied retroactively. In Agricultural and Processed
Food Products v. Union of India8, Court interpretation of saving clause in 1988 Export
Control Order said that it only conserved rights that existed before the order was issued and
did not provide any new ones which did not exist at the time of its enactment.

Saving clauses in Article 13 (1) of the Constitution of India

7
1961 AIR 1596
8
AIR 1996 SC 1947
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Exceptions, Proviso, and Savings Clauses in Indian Constitutional Law
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Artcile 13(1) of the Constitution states that

“Laws inconsistent with or in derogation of the fundamental rights.—

(1) All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the
extent of such inconsistency, be void.”

In Keshavan Madhava Menon vs The State Of Bombay 9 the court further propounded on the
saving clause of article 13(1) of the constitution. It was reiterated that “article 13 (1) is
entirely prospective in its operation and as it was not intended to have any retrospective effect
there was no necessity at all for inserting in that article any such saving clause. The effect of
article 13 (1) is quite different from the effect of the expiry of a temporary statute or the
repeal of a statute by a. subsequent statute. As already explained, article 13 (1) only has the
effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory and
devoid of any legal force or binding effect only with respect to the exercise of fundamental
rights on and after the date of the commencement of the Constitution.”

Saving clauses in Article 73 (1) of the Constitution of India

Article 73 (1) of the constitution of India sates:

“Extent of executive power of the Union. —

(1) Subject to the provisions of this Constitution, the executive power of the Union shall
extend—

(a) to the matters with respect to which Parliament has power to make laws; and

(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the
Government of India by virtue of any treaty or agreement: Provided that the executive power
referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in

9
1951 AIR 128
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Exceptions, Proviso, and Savings Clauses in Indian Constitutional Law
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any law made by Parliament, extend in any State 2 to matters with respect to which the
Legislature of the State has also power to make laws.”

In Union Of India v. Sriharan 10 Article 73(1) of the constitution's "save" provision was
further discussed by the court. However, the Proviso to Article 73(1) says, subject to the
saving clause, that the executive authority thus referred to in sub-paragraph (a) must not
extend in any State to things with regard to which the legislative of the State has also the
ability to pass legislation.

EXCEPTIONS

When drafting the enacting part, an exception might be considered. Its purpose is to limit the
applicability of the primary provision to a single piece of legislation. There should be no

10
(2016) 7 SCC 1
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room for exceptions to be interpreted in a way that favors those who are only aiming to profit
from them. The exception must be disregarded if it conflicts with the operational component
of the section. In the absence of an exception, the enactment's provisions are presumed to
apply to all other instances that are not covered by the exception. Adding exceptions to a law
is a common practice to avoid include anything that would otherwise be covered by the main
provision.

If one person or thing is specifically specified in a law, it is assumed that other people or
things are not addressed. According to this concept, expressions of one kind must be
excluded from those of another kind.

According to law, if there are exceptions in an enactment, the rest of the law applies to all
circumstances that are not covered by the exceptions. An exemption to a law that conflicts
with the main body of the law is invalid. This was the case in Farmers' Bank of Fayetteville
versus Hale.

In Director of Secondary Education v. Pushpendra Kumar 11 , An exception may not be read

such that it undermines or nullifies the main enactment's rights, according to Supreme Court
rulings on this issue

In Collector of Customs v. M/s. Modi Rubber Limited 12 (1999), A provision in the form of an
exception to the main clause must be interpreted in accordance with the main clause,
according to the Supreme Court.

Exception in Article 265 of the Constitution of India

Article 265 of the constitution of India sates:

11
(1998) 5 SCC 192
12
(1997) INSC 682
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Exceptions, Proviso, and Savings Clauses in Indian Constitutional Law
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“Taxes not to be imposed save by authority of law. —No tax shall be levied or collected
except by authority of law.”

In Smt Ujjam Bai vs State Of U.P13 Article 265 of the constitution provides an exemption to
this rule. "It is, however, apparent from article 265 that no tax may be imposed or collected
except by authority of law, which must imply a good and legal statute," it was reaffirmed.

Exceptions In Article 20 of The Constitution Of India

Article 20 of the constitution of India sates:

“Protection in respect of conviction for offences. — (1) No person shall be convicted of any
offence except for violation of a law in force at the time of the commission of the Act
charged as an offence, nor be subjected to a penalty greater than that which might have been
inflicted under the law in force at the time of the commission of the offence. (2) No person
shall be prosecuted and punished for the same offence more than once. (3) No person accused
of any offence shall be compelled to be a witness against himself.”

In Rao Shiv Bahadur Singh And Another vs The State Of Vindhya Pradesh 14 Article 20 of
the Constitution provides an exemption to this rule. The court emphasized this point further.
People accused of committing an offense have no fundamental right to be tried in a specific
court or under a certain process, except in cases where there is a constitutional complaint
based on discrimination or another fundamental right has been violated, according to the
Supreme Court.

CONCLUSION

Provision excludes the things from the particular section or provision which would otherwise
would have been included in it. It has no other role to play neither it extends the meaning or
13
1962 AIR 1621
14
1953 AIR 394
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Exceptions, Proviso, and Savings Clauses in Indian Constitutional Law
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scope of the section. It is restricted only to the section to which it is part and cannot have
effect on other provisions.

Exceptions are created to exclude certain things from a particular provision which would
otherwise the part of it. They do not expand the scope the scope of section nor add any
different meaning to the words. They just take away certain things from a particular
provision.

Saving clause on the other hand is generally appended where there is a case of repeal and re-
enactment.

When a provision is ambiguous the intention of the legislature is determined through

interpretation. Internal help to interpretation is a trustworthy source of interpretation. It is a
part of the legislation and the initial line of defence for interpretation.

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Exceptions, Proviso, and Savings Clauses in Indian Constitutional Law