Saturday, July 23, 2011

SCOPE OF "PROVISO'

A proviso which is inserted to remedy unintended consequences and to make the provision workable, a proviso which supplies an obvious omission in the Section and is required to be read into the Section to give the Section a reasonable interpretation, requires to be treated as retrospective in operation, so that a reasonable interpretation can be given to the Section as a whole. [(Allied Motors, 1997 -TMI - 5575 – (SUPREME Court)].

The law with regard to provisos is well-settled and well-understood. 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. [Shah Bhojraj Kuverji Oil Mills & Ginning Factory v. Subhash Chandra Jograj Sinha, AIR 1961 (SC) 1596].

Any clause (say, in an agreement or statute) which begins with the words `provided that' is called `proviso'. The provisios are generally not used but are resorted to provide 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. It is important that a proviso must be construed harmoniously with the main statute so as to give effect to legislative objective. It should not render itself otiose or in effective or to render substantive provision, redundant (Sales Tax Commissioner v. B.G. Patel AIR 1995 SC 865. Supreme Court in Balachanara Anantrao Rakvi v. Ramchandra Tukaram (2001) 8 SCC 616 held that the correct way to understand a proviso would be to read it in the context of main provision and not in isolation.

A proviso must be limited to subject matter of the main clause and should be, prima facie, read and considered in relation to the principal matter of clause to which it is a proviso. It is not a separate or independent clause and it cannot be divorced from the main clause.

A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction. [Dwarka Prasad v. Dwarka Das Saraf 1976 (1) SCR 277: 1976 (1) SCC 128: AIR 1975 SC 1758: 1975 (1) All LR 516].

The provisos are often added not as exceptions or qualifications to the main enactment but as saving clauses, in which cases they will not be construed as controlled by the section. [Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha AIR 1961 SC 159: 64 Bom LR 407].

Ordinarily proviso is an exception to the main provision but in exceptional cases a proviso can be a substantive provision itself. [Ishveralal Thakorelal Almaula v. Motibhai Nagibhai 1966 (1) SCR 367: AIR 1966 SC 459: 68 Bom LR 645: 1966 Mah LJ 1049; Commissioner of Commercial Taxes, Board of Revenue, Madras v. Ramkishan Shrikishan Jhaver 1968 (1) SCR 148: AIR 1968 SC 59: 1968 Mad LW (Cri.) 25.

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By: Dr. Sanjiv Agarwal
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