The Proviso in Provision - of Law
"PROVIDED that", is a common phrase we see in our Acts, Rules and Notifications with some provisions having three or four provisos.
It is said by a scholar, "It took 700 years of passing Acts before the Parliament of the United Kingdom broke up its Acts into sections and put in some headings. Before that it was margin to margin solid blocks of text. As Jeremy Bentham put it early in the 1800's that when the first suggestions were made about splitting up the text of Acts into sections it was suggested that it was a Jacobean plot to undermine the English language."
In his book on legislative Drafting, TK. Viswanathan says:
A proviso is used chiefly to express that something is not within the Act, or the clause, which, by possibility, might be supposed to be within it from its kindred nature; while an exception is employed to save from the operation of the law an object of the same species, which is included in terms in the same enactment. Both the proviso and the exception ought to follow immediately upon the part of the Act, on which it is intended that either should operate.
But a proviso should never be used, according to Symonds unless there is a reasonable probability of its subject matter being brought within the terms of the law. It destroys its simplicity, and raises a question where none might be raised. If other things, bearing a similar relation to the subject matter of the Act which the matter of the proviso bears to it, be not also expressed in the proviso, it may have the effect of raising the supposition that such other matter is included in the Act. If there is no probability of such surmise, then in both cases the proviso is excessive and useless.
Use provisos sparingly: They are a great source of doubt and ambiguity. If needed, they should not be used to state a general rule or statement. If the language of the enacting part is clear and does not contain the provisions which are said to occur in it, one cannot derive those provisions by implication from the proviso.
It has been said that the proviso becomes a convenient tool in the hands of a draftsman. If he has neglected to complete the case, or has said too much, he makes a correction by means of a proviso. If he has forgotten the existence of such simple words as "but", "if" or "except", or has forgotten the expedient of adding a new section or sub-section, he adds a proviso. It has been said that the proviso is a legal incantation which should be banished from the statute book .
A proviso upon a proviso would make confusion worse confounded. Where there are two provisos, one inconsistent with the other, difficulties of construction are bound to arise.
The general rule in construing an enactment containing a proviso is to construe them together without making either of them redundant or otiose. Even if the enacting part is clear, effort is to be made to give some meaning to the proviso and to justify its necessity. But a clause or a section worded as a proviso, may not be a true proviso and may have been placed by way of abundant caution.
To read a proviso as providing something by way of an addendum or as dealing with a subject not covered by the main enactment or as stating a general rule as distinguished from an exception or qualification is ordinarily foreign to the proper function of a proviso. However, this is only true of a real proviso. The insertion of a proviso by the draftsman is not always strictly adhered to its legitimate use and at times a section worded as a proviso may wholly or partly be in substance a fresh enactment adding to and not merely excepting something out of or qualifying what goes before.
A proviso will not be normally construed as reducing the purview of enactment to a nullity or to take away a right clearly conferred by the enactment but it has been held that if a proviso on its true construction "is directly repugnant to the purview, the proviso shall stand and be a repeal of the purview, as it speaks the last intention of the makers". And, on similar logic, it has also been held that if out of two provisos the later is repugnant to the earlier one, the later prevails.
SUPREME COURT ON PROVISO: In V. Sundaram Pillai vs Pattabhiraman, the Supreme Court stated the purposes of a proviso as: "To sum up a proviso may serve four different purposes:
(1) Qualifying or excepting certain provisions from the main enactment;
(2) It may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;
(3) It may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and
(4) It may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.
The Supreme Court has held that the language of a proviso even if general is normally to be construed in relation to the subject matter covered by the section to which the proviso is appended. Normally a proviso does not travel beyond the provision to which it is a proviso. Application of this rule presents difficulty when a proviso in a statute does not form part of a section but is itself enacted as a separate section.
In a judgement delivered yesterday, the Supreme Court observed,
Provisos can serve various purposes. The normal function is to qualify something enacted therein but for the said proviso would fall within the purview of the enactment. It is in the nature of exception. A proviso is generally added to an enactment to qualify or create an exception to what is in the enactment, and the proviso is not interpreted as stating a general rule. Further, except for instances dealt with in the proviso, the same should not be used for interpreting the main provision/enactment, so as to exclude something by implication. It is by nature of an addendum or dealing with a subject matter which is foreign to the main enactment.
Read in this manner, we do not think the proviso should be given a greater or more significant role in interpretation of the main part of the notification, except as carving out an exception. It means and implies that the requirement of the proviso should be satisfied i.e. manufacturing dealer should not have charged the tax. The proviso would not scuttle or negate the main provision by holding that the first transaction by the eligible manufacturing dealer in the course by way of inter-state sale would be exempt but if the inter-state sale is made by trader/purchaser, the same would not be exempt. That will not be the correct understanding of the proviso. Giving overdue and extended implied interpretation to the proviso in the notification will nullify and unreasonably restrict the general and plain words of the main notification. Such construction is not warranted.