THE RELEVANCE OF 'PROVISO'

[Dr. Sanjiv Agarwal]

Many a times, it is observed that a 'proviso' is added to the main provision as a saving, exception or qualification to the main provision. It is not complementary or supplementary to the main clause but conveys the legislative intention for interpretation or objective of main clause. A proviso is generally used for qualifying or providing an exception to what main provision would ordinarily convey. However, it is expected that it shall not render the main clause redundant or not render itself ineffective.

The use of proviso is conveyed in the judicial pronouncements some of which are as follows:

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 Private Limited Versus Commissioner of Income-Tax 1997 (3) TMI 9 - 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 and Ginning Factory v. Subhash Chandra Jograj Sinha, 1961 (4) TMI 82 - SUPREME COURT].

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 1995 (1) TMI 311 - SUPREME COURT . Supreme Court in Balachandra Anantrao Rakvi v. Ramchandra Tukaram 2001 (10) TMI 1103 - SUPREME COURT 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 1975 (8) TMI 121 - SUPREME COURT ].

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 Jograj Sinha, 1961 (4) TMI 82 - SUPREME COURT].

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 1965 (8) TMI 75 - SUPREME COURT,  Commissioner of Commercial Taxes, Board of Revenue, Madras v. Ramkishan Shrikishan Jhaver 1967 (8) TMI 37 - SUPREME Court ].

In Frankfinn Aviation Services Pvt. Ltd. v. Assistant Commissioner, Designated Authority, VCES, Service Tax 2014 (4) TMI 133 - DELHI HIGH COURT, it was held that ‘proviso’ to main provision merely carves out exception from operation of main provision. This is the settled law.