THE RULE OF HARMONIOUS CONSTRUCTION
As Modesitt once said “Never mistake law for justice, Justice is an ideal & law is merely a tool”, for he who understands the difference between the two, can seek harmony amongst the two. Having said that we can make a conclusive statement indicating that the laws are a tool to seek justice and isn’t synonymous with justice. The concept of Harmonious construction is no different and is exactly based on the foundation of the aforementioned statement.
We start with the origination and need of statutes which brings us to the fact that the laws are imposed to regulate the people at large& are drafted by legal experts and yet it can be very well predicted that many of these laws can be ambiguous and not precise or may contain words, expressions or statements which might be confusing, which entangles the courts and lawyers to resolve the inconsistencies, ultimately leading to the origination of certain specific rules of interpretation of statutes.
The rule of Doctrine of harmonious construction states that a statute should be read as a whole and one provision of the Act should be constructed with reference to other provisions in the same Act to make a consistent enactment of the whole statute and to remove any inconsistency or repugnancy[1].
In short whenever there seems to be some sort of conflict between two or more statutes, then the doctrine of harmonious construction is expected to be adopted. This rule has a very simple proposition and that every statute has a purpose as well as intent with the law and should be read as a whole.[2] What is also important to be aware of is that the rule of harmonious construction is the thumb rule to interpret any statute.
Harmonious construction is only applied where there is a tussle between the meaning coming out of two different sections and the meaning lands the courts inan ambiguous situation of which section to apply?
THE FIVE PRINCIPLES OF RULES OF HARMONIOUS CONSTRUCTION
In the landmark case of CIT v. Hindustan Bulk Carriers,[3]
TheHon’ble Supreme Court laid down five principles of rule of harmonious construction[4]:-
- The courts must avoid a head-on clash of seemingly contradicting provisions and they must construe the contradictory provisions so as to harmonize 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 a way so that effect is given both the provisions as much as possible.
- Courts must also keep in mind that interpretation that reduces one provision to a useless number or dead is not harmonious construction.
- To harmonize is not to destroy any statutory provision or to render it fruitless.
A more known approach in all such cases is to seek as to which of the two conflicting provisions is more generic and which is more specific and to construe the more general one and exclude the more specific one. [5] The question here is to identify as to the relative nature of the provisions, general or special, which has to be determined concerning the area and extent of their application either generally or specifically in particular situations. [6]This principle is expressed in the maxims Generaliaspecialibus non derogant, and Generaliaspecialibusderogant. While the former means that general things do not derogate from special things, the latter juxtaposes that special things derogate from general things. [7]The rule of harmonious construction can also be used for resolving a conflict between a provision and rule madeunder the Act. Moreover, the above-mentioned principle is also used to resolve a conflict between two different Acts and in the making of statutory rules [8] and statutory orders[9]. However in case there stand two remedies, the first being more generic and the other being more specific and precise and both of which are inconsistent to each other. To enrich this explanation, we introduce certain case laws to supplement the article.
Having mentioned the above-cited principle to get a broader idea about the topic, you might be thinking as to how probably one can deploy the doctrine of harmonious construction and what are the various relevant procedures or steps that one has to undergo to avail the same.
Hence, there are certain steps that one needs to abide by while deploying the abovementioned principle:
- The first and foremost one is that both the provisions which are conflicting or are repugnant to each other must be read as a whole with reference to the entire enactment in question.
- The next step is to keep in mind to permit full effect to both of them and then reduce the conflict as much as possible.
- Once you are done with the aforementioned steps, now you shallout of the two conflicting provisions choose the wider and the narrower scope of these two separately and,
- Finally, deduct the narrower provision from the wider one and see the consequences or the repercussions. If the consequence is as reasonable and justifiable as to harmonize both the provisions and it authorizes their full effect separately, no further inquiry is required.
While doing such harmonization or accordance one must keep in mind that the entire enactment is the product of the same author, that is, the legislature and it is certainly supposed that the legislature while enacting the provisions of a statute was fully alert about the situation which entered to cover and therefore all provisions enacted require to be given their full effect in scope.[10]
THE SABARIMALA TEMPLE CASE
The Sabarimala Temple, devoted to Lord Ayyappa, is one of the most famous and prominent among all the Sastha temples in Kerala. The temple is located in Pathanamthitta district on a hilltop named Sabarimala. Thousands of people, every year embark on the holy trek to the hill. However, the women of menstruating age (10 to 50 years) are prohibited from entering the temple.
According to the temple’s mythology, Lord Ayyappa is an avowed bachelor who has taken an oath of celibacy.Women do not visit the temple – the belief is that to do so would insult the deity.[11]As the years passed by many protests and disputes began against the tradition.
Timeline of events in the case relating to the entry of women into the Sabarimala temple-
| 1990 | S Mahendran filed a plea in Kerala High Court seeking a ban on women’s entry inside the Sabarimala temple. |
| 1991 | The Kerala High Court upheld the restriction of women of menstruating age entering the Sabarimala temple. |
| 2006 | A petition challenging the prohibition was filed in the Supreme Court by Indian Young Lawyers Association because restricting women from entering a public place of worship violates the freedom to propagate and follow their religion, listed in Article 25 of the Indian Constitution. |
| 2007 | The LDF government filed an affidavit supporting PIL questioning prohibition on women’s entry inside the Sabarimala temple. |
| January 2016 | A two-judge bench of Supreme Court questioned the practice banning entry of women at the temple. |
| February 2016 | Congress-led UDF government took U-turn and told the Supreme Court it is duty-bound to “protect the right to practice the religion of these devotees”. |
| November
2016 |
LDF government filed a fresh affidavit in SC saying that it favored the entry of women of all age groups inside the Sabarimala temple. |
| October 2017 | SCreferred the case to the Constitution bench. |
| July 17, 2018 | Five-judge constitution bench started hearing the matter. |
| July 24, 2018 | SC made it clear that the ban on entry of women would be tried on “constitutional ethos”. |
| August 1, 2018 | The five-judge Constitution bench reserved its verdict on the petitions challenging the ban. |
| September 28, 2018 | Supreme Court, in 4:1 verdict, allowed entry of women of all age groups in SABARIMALA temple, said banning females’ entry into the revered shrine is gender discrimination and the practice violates the rights of Hindu women. |
| October 8, 2018 | A plea was filed in the Supreme Court by the National Ayyappa Devotees Association seeking review of the judgment. |
| November 13, 2018 | SC agreed to hear the review pleas in open court on January 22 but refused to stay the judgment. |
| November 14, 2018 | The Review Bench of five judges refused to stay its verdict. |
| December 3, 2018 | Kerala government moved to the Supreme Court seeking transfer of related cases from the High Court to the apex court. |
| February 6, 2019 | SC reserved its verdict on a batch of petitions seeking review of its judgment which lifted the bar on menstruating women from entering the Sabarimala temple in Kerala. |
| November 14, 2019 | The five-judge bench of the Supreme Court referred review pleas in the Sabarimala temple case to a larger seven-judge bench.The verdict to refer the case to a bigger bench was a 3:2 majority ruling. |
APPLYING DOCTRINE OF HARMONIOUS CONSTRUCTION INTO THE SABARIMALA CASE:
On 28th September 2018, the Supreme Court delivered its judgmentin the case of Young Lawyers Association &Ors. vs. State of Kerala &Ors.[12] A 4:1 majority held that prohibiting females’ entry into the shrineis unconstitutional. The tradition violated the fundamental right to freedom of religion – Article 25(1) – of female worshippers. The court also struck down Rule 3(b) of the Kerala Hindu Places of Public Worship Act as unconstitutional. Rule 3(b) permitted Hindu denominations to exclude women from public places of worship if the exclusion was established on ‘custom’.
The majority judgment was given by CJI Dipak Mishra and Justice A.M. Khanwilkar while Justice Dr. D.Y. Chandrachud and Justice R.F. Nariman wrote separate concurring opinions. The dissenting opinion was given by the only woman judge on the Bench, Justice Indu Malhotra.
Constitutional Morality vis-a-vis the Contemporary Validity Test
The right to equality and non-discrimination undoubtedly form the crux of constitutional morality upheld by the courts. However, the freedom of an individual to practice their as per the tenets of their religion can also not be overlooked.
One of the minority judgments by Hon’ble Justice Indu Malhotra concerning Constitutional Morality in the Triple Talaq Judgment talked about personal laws being elevated to the stature of independent fundamental rights under the Constitution of India. It was thus deduced that religious rights under Articles 25 and 26 cannot be given primacy over Constitutional Morality. The essence of Constitutional Morality lies in harmonious construction and associating it with absolutism would not be right.
Neither does Justice Malhotra specifically dissents to, nor should complete non-intervention by the courts in the religious affairs of a particular community be advocated. It has to be established that theproposed theories of CVT and Transformative Accommodation can safely beupheld as the essential stalwarts for ensuring that the essence of Constitutional Morality does not suffer a backlash while deciding between individual and religious rights.
Our view here is that, while establishing a stable doctrine on the touchstones of harmonious construction, the court should draw a parallel between Constitutional Morality and the proposed CVT. Thus, the courts, by reading the concept of CVT into Constitutional Morality, can seek to achieve the objective of harmonious construction, which is quintessential for upholding the tenets of the Constitution.[13]
The Supreme Court’s verdict on Sabarimala is highly commendable in respect to doing away with the discrimination that was served in guise of devotion. Having said that, the question raised by Justice Indu Malhotra in her dissent, regarding the interference of Courts in religious matter, becomes very essential to determine objectivity in law and reconciliation between culture and law. The ERP Test has been constantly applied by the Courts in a very inconsistent manner. The phrase “essential religious practice” does not have an objective criterion and is often determined at the whims and fancies of the judges. That is exactly where the Court brought in the doctrine of harmonious construction.
So, in way we can say that the doctrine of harmonious construction was indubitably evident in the landmark case of SABARIMALA as the clash herein arise when the notions of rationality was trying to be seen in matters of religion and that the shrine and the deity are protected by the Article25 of the Constitution which is the right to religion vis-à-vis the right to equality which seeks to eliminate discrimination on any grounds and avail equality for all before the law. Thus, the clash between Article 14 and Article 25 of the constitution holding them together will be contradictory in this case as the right to religion allows the people to follow their belief while right to equality before the law seeks equality for women as well to worship and enter the temple. This ironic situation or the clashing of two provisions of the articles is how we deploy and can evidently make out that this is a classic case of the application of doctrine of harmonious construction.
[1]Shrishti Khandelwal, DOCTRINE OF HARMONIOUS CONSTRUCTION
https://www.legalsarcasm.com/legal-notes/doctrine-of-harmonious-construction/
[2] ArjunGupta94, Harmonious and beneficial construction,http://www.legalservicesindia.com/article/1941/Harmonious-and-Beneficial-Construction..html
[3]CIT V HINDUSTAN BULK CARRIERS (2003)3 SCC 57
[4] Supra note 1
[5] State of U.P. v. Renusagar Power Co., AIR 1988 SC 1737, p. 1751.
[6] Collector of Central Excise Jaipur v. Raghuvar (India) Ltd., JT 2000 (7) SC 99, p. 111.
[7] 9 OSBORN’S Law Dictionary
[8].Jagdish Singh v. Lt. Governor, Delhi, AIR 1997 SC 2239, p. 2242.
[9]J.K. Cotton Spinning and Weaving Mills Ltd. v. State of U.P., AIR 1961 SC 1170.
[10]Ishani Acharya and Rahul Das,THE DOCTRINE OF HARMONIOUS CONSTRUCTION IN THE INTERPRETATION AND CONSTRUCTION OF STATUTES, http://ijlljs.in/wp-content/uploads/2014/06/Harmonious-Construction.pdf
[11]Sabarimala: The Indian god who bars women from his temple, BBC (April 4, 2020, 3:48 PM), https://www.bbc.com/news/world-asia-india-45901014.
[12] Young Lawyers Association &Ors. v State of Kerala &Ors. SC (2018).
[13]Tanishk Goyal,NamanAgarwala and Rishabh Singh, Sabarimala Verdict: Deconstructing the dissenting judgment, one year later, Bar and Bench (April 6, 2020, 11:23 AM)
By-
Astha Rao
Shipra Sahu
Previous post: https://desikanoon.in/internship-experience-at-u-p-public-services-tribunal/