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How to read 'PROVISO'?

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How to read 'PROVISO'?
By: Navjot Singh
July 15, 2021
All Articles by: Navjot Singh       View Profile
  • Contents
  1. Exordium
  • The proviso is generally not used but is resorted to providing conditions on riders to the main provisions.
  • The proviso qualifies the generality of the main section or clause by inserting an exception and take out as it was, from the main clause, a part of it which, but for the proviso would fall within the main clause.
  • It is a foreign text to the main text of the clause or section. Its function is to carve out an exception or exclusion to the main provision which otherwise would have been in the main section.
  • A proviso must be construed harmoniously with the main statute to give effect to the legislative objective.
  1. Isolation!
  1. It should not render itself otiose or ineffective or render substantive provision, redundant (Sales Tax Commissioner v. B.G. Patel 1995 (1) TMI 311 - SUPREME COURT). Supreme Court in BALCHANDRA ANANTRAO RAKVI & ORS. VERSUS RAMCHANDRA TUKARAM (DEAD) BY LRS. & ANR.- 2001 (10) TMI 1103 - SUPREME COURT held that the correct way to understand a proviso would be to read it in the context of the main provision and not in isolation.
  1. The fallacy of the proposed method of interpretation is not far to seek. It sins against the fundamental rule of construction that a proviso must be considered concerning the principal matter to which it stands as a proviso. It treats it as if it were an independent enacting clause instead of being dependent on the main enactment.
  1. The courts, as, for instance, in Ex p. Partington [(1844) 6 Q.B. 649]., Re Brocklebank [(1889) 23 Q.B.D.461], and Hill v. East and West India Dock Co. [(1884) 9 App.Cas.448], has frequently pointed out this fallacy, and has refused to be led astray by arguments, which depend solely on taking words absolutely in their strict literal sense, disregarding the fundamental consideration that they appear in the proviso.
  1. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such a manner that they mutually throw light on each other and result in a harmonious construction.
  1. The principal provision is clear, a proviso cannot expand or limit it. Sometimes a proviso is engrafted by an apprehensive draftsman to remove possible doubts, to make matters plain, to light up ambiguous edges (DWARKA PRASAD VERSUS DWARKA DAS SARAF 1975 (8) TMI 121 - SUPREME COURT).
  1. The normal function of a proviso is to accept something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins v. Treasurer of Survey [1880 (5) QBD 170], (referred to in SHAH BHOJRAJ KUVERJI OIL MILLS AND GINNING FACTORY VERSUS SUBBASH CHANDRA YOGRAJ SINHA - 1961 (4) TMI 82 - SUPREME COURT and CALCUTTA TRAMWAYS CO. LTD. VERSUS CORPN. OF CALCUTTA - 1965 (3) TMI 74 - SUPREME COURT; when one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso. The proper function of a proviso is to accept and to deal with a case that would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate.
  1. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule.

“If the language of the enacting part of the statute does not contain the provisions which are said to occur in it you cannot derive these provisions by implication from a proviso.” Said Lord Watson in West Derby Union v. Metropolitan Life Assurance Co. (1897 AC 647) (HL).

  1. Traveling beyond the main Section?
  1. Normally, a proviso does not travel beyond the provision to which it is a proviso. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. (See A.N. SEHGAL VERSUS RAJE RAM SHORAN 1991 (4) TMI 438 - SUPREME COURT,  TRIBHUVANDAS HARIBHAI TAMBOLI VERSUS GUJARAT REVENUE TRIBUNAL - 1991 (5) TMI 252 - SUPREME COURT and KERALA STATE HOUSING BOARD VERSUS RAMAPRIYA HOTELS PVT. LTD. - 1994 (7) TMI 344 - SUPREME COURT.

“This word (proviso) hath divers operations. Sometimes it worked like qualification or limitation; sometimes a condition; and sometimes a covenant” (Coke upon Littleton 18th Edition, 146)

“If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the latter clause is to be rejected as repugnant, and the earlier clause prevails….But if the later clause does not destroy but only qualifies the earlier, then the two are to be read together and the effect is to be given to the intention of the parties as disclosed by the deed as a whole” (per Lord Wrenbury in Forbes v. Git [1922] 1 A.C. 256).

  1. A statutory proviso “is something engrafted on a preceding enactment” (R. v. Taunton, St James, 9 B. & C. 836). “The ordinary and proper function of a proviso coming after a general enactment is to limit that general enactment in certain instances” (per Lord Esher in Re Barker, 25 Q.B.D. 285).
  1. A proviso to a section cannot be used to import into the enacting part something which is not there, but where the enacting part is susceptible to several possible meanings it may be controlled by the proviso (See Jennings v. Kelly [1940] A.C. 206). The above position was noted in ALI M.K. AND ORS. VERSUS STATE OF KERALA AND ORS. - 2003 (4) TMI 561 - SUPREME COURT.
  1. How Courts read a ‘Proviso’?
  1. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. (INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA VERSUS PRICE WATERHOUSE AND ANR. 1997 (7) TMI 649 - SUPREME COURT) The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been saying. As a consequence, a construction that requires for its support, addition, or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in ROBERT WIGRAM CRAWFORD VERSUS RICHARD SPOONER - 1846 (12) TMI 1 - PRIVY COUNCIL, Courts, cannot aid the Legislatures’ defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. (See STATE OF GUJARAT & ORS. VERSUS DILIPBHAI NATHJIBHAI PATEL & ANR. 1998 (3) TMI 677 - SUPREME COURT). It is contrary to all rules of construction to read words into an Act unless it is necessary to do so. (See Stock v. Frank Jones (Tipton) Ltd. (1978 1 All ER 948 (HL).
  1. The question is not what may be supposed and has been intended but what has been said. “Statutes should be construed not as theorems of Euclid”. Judge Learned Hand said,

“But words must be construed with some imagination of the purposes which lie behind them”. (See Lenigh Valley Coal Co. v. Yensavage 218 FR 547). The view was re-iterated in the UOI. VERSUS FILIP TIAGO DE GAMA OF VEDEM VASCO DE GAMA - 1989 (11) TMI 307 - SUPREME COURT

  1. Casus omissus
  1. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of the process of law, it is for the legislature to amend, modify, or repeal it, if deemed necessary. (See CST., MADHYA PRADESH VERSUS POPULAR TRADING COMPANY - 2000 (4) TMI 39 - SUPREME COURT. The legislative casus omissus cannot be supplied by the judicial interpretative process.
  1. Reliance is further placed upon the case of COMMISSIONER OF INCOME-TAX, CENTRAL, CALCUTTA VERSUS NATIONAL TAJ TRADERS - 1979 (11) TMI 2 - SUPREME COURT, wherein it has been held that as per the principle of casus omissus, omissions cannot be supplied by the Court except in the case of clear necessity and when the reason for it found in the four corners of the statute itself.

Maxwell on Interpretation of Statutes (12th Edn.) at para 33 which provides as under:

“Omissions not to be inferred-It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord Mersey said:  ‘It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.’ ‘We are not entitled,’ said Lords Loreburn L.C., ‘to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.’ A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission, in consequence, to have been unintentional.”

  1. Two principles of construction – one relating to casus omissus and the other in regard to reading the statute as a whole – appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when the reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose, all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if the literal construction of a particular clause leads to manifestly absurd or anomalous results that could not have been intended by the Legislature. “An intention to produce an unreasonable result”, said Danackwerts, L.J. in Artemiou v. Procopiou (1966 1 QB 878), “is not to be imputed to a statute if there is some other construction available”. Where to apply words literally would “defeat the obvious intention of the legislature and produce a wholly unreasonable result” we must “do some violence to the words” and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke v. IRC (1966 AC 557) where at p. 577 he also observed: “this is not a new problem, though our standard of drafting is such that it rarely emerges”.
  1. It is then true that “when the words of law extend not to an inconvenience rarely happening, but due to those which often happen, it is a good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt.” “But,” on the other hand, “it is no reason when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently because it happens but seldom” (See Fenton v. Hampton 11 Moore, P.C. 345). A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does occur, either through the inadvertence of the legislature or on the principle quod semel aut bis existit proetereunt legislators, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute – Casus omissus et oblivioni datus dispositioni communis juris relinquitur; “a casus omissus,” observed Buller, J. in Jones v. Smart (1 T.R. 52), “can in no case be supplied by a court of law, for that would be to make laws.”
  1. Golden Rule of Interpretation
  1. The golden rule for construing wills, statutes, and all written instruments has been thus stated:

“The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, to avoid that absurdity and inconsistency, but no further” (See Grey v. Pearson 6 H.L. Cas. 61).

  1. The latter part of this “golden rule” must, however, be applied with much caution. “If,” remarked Jervis, C.J., “the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning”. (See Abley v. Dale 11, C.B. 378).
  1. At this juncture, it would be necessary to take note of a maxim “Ad ea quae frequentius accidunt jura adaptantur” (The laws are adapted to those cases which more frequently occur).
  1. Further, while construing the provisions of the statute, the noticee would like to draw your kind attention towards an excerpt of a judgment in the case of GURUDEVDATTA VKSSS MARYADIT & OTHERS VERSUS STATE OF MAHARASHTRA & OTHERS - 2001 (3) TMI 976 - SUPREME COURT, this Court observed:

"It is a cardinal principle of interpretation of the statute that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain, and unambiguous, then the Courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the law-giver. The Courts have adhered to the principle that efforts should be made to give meaning to every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute.’

The same view has been taken by this Court in HARSHAD S. MEHTA VERSUS STATE OF MAHARASHTRA - 2001 (9) TMI 991 - SUPREME COURT and PATANGRAO KADAM VERSUS PRITHVIRAJ SAYAJIRAO YADAV DESHMUKH & OTHERS - 2001 (2) TMI 983 - SUPREME COURT."

  1. Further, the golden rule of grammatical construction was laid down by the Supreme Court in one of its earliest judgments in MAHADEOLAL KANODIA VERSUS THE ADMINISTRATOR-GENERAL OFWEST BENGAL - 1960 (4) TMI 48 - SUPREME COURT as follows:

"8. The principles that have to be applied for the interpretation of statutory provisions of this nature are well-established. The first of these is that statutory provisions creating substantive rights or taking away substantive rights are ordinarily perspective; they are retrospective only if by express words or by necessary implication the Legislature has made them retrospective, and the retrospective operation will be limited only to the extent to which it has been so made by express words, or by necessary implication. The second rule is that the intention of the Legislature has always to be gathered from the words used by it, giving the words their plain, normal, grammatical meaning. The third rule is that if in any legislation, the general object of which is to benefit a particular class of persons, any provision is ambiguous so that it is capable of two meanings, one which would preserve the benefit and another which would take it away, the meaning which preserves it should be adopted. The fourth rule is that if the strict grammatical interpretation gives rise to an absurdity or inconsistency such interpretation should be discarded and an interpretation which will give effect to the purpose the Legislature may reasonably be considered to have had will be put on the words, if necessary, even by modification of the language used.’

The law is not 'brooding omnipotence in the sky but a pragmatic instrument of social order, as was opined by the Larger Bench of the Apex Court in CAREW & CO. LTD. VERSUS UNION OF INDIA - 1975 (8) TMI 91 - SUPREME COURT

It was further held in that case that if the language of the statute does not admit of the construction sought, wishful thinking is no substitute for that, thereby holding that purposive interpretation is always progressive.

 

CA. Navjot Singh

Managing Partner

TaxTru Business Advisors

Navjot.singh@taxtru.in | +91 99533 57999

 

By: Navjot Singh - July 15, 2021

 

 

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