Proviso - Indian Laws - General

Meaning and Scope of the term Proviso The P. Ramanatha Aiyar, Law Lexicon, 2nd Edition, Wadhwa Co. at page 1552 defines proviso as follows: The word proviso is used frequently to denote the clause the first words of which are provided that inserted in deeds and instruments generally. And containing a condition or stipulation on the performance or non-performance of which, as the case maybe. The effect of a proceeding clause or of the deed depends. A Clause inserted in a legal or formal document, making some condition, stipulation, exception or limitation or upon the observance of which the operation or validity of the instrument depends [ S. 105, Indian Evidence Act]. A proviso is generally intended to restrain the enacting clause and to except something which would have otherwise been within it or in some measure to modify the enacting clause... To quote Craies on Statute Law , 7th Edn., Sweet Maxwell at page 220 If the principal object of the Act can be accomplished and stand under the restriction of the saving clause or proviso, the same is not to be held void for repugnancy. [ DASHRATH RUPSINGH RATHOD VERSUS STATE OF MAHARASHTRA ANOTHER- 2014 (8) TMI 417 - SUPREME COURT ] As per Maxwell on Interpretation of Statutes, 10th Edn. p. 162- A proviso must be limited to the subject-matter of the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. Words are dependent on the principal enacting words, to which they are tacked as a proviso. They cannot be read as divorced from their context 1912 A.C. 544. If the rule of construction is that prima facie a proviso should be limited in its operation to the subject-matter of the enacting clause, the stand we have taken is sound. To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso. 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. The proper course is to apply the broad general rule of construction which is that a section or enactment must be construed as a whole, each portion throwing light if need be on the rest. The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together is to prevail. [Dwarka Prasad v. Dwarka Das Saraf - 1975 (8) TMI 121 - SUPREME COURT] In Sreenivasa General Traders Ors. v. State of Andhra Pradesh Ors.- 1983 (9) TMI 315 - SUPREME COURT, another three- Judge bench of this Court examined the role of a proviso while interpreting Rule 74(1) of the Andhra Pradesh (Agricultural Produce Livestock) Markets Rules, 1969. The normal function of a proviso is to except something out of the main enacting part or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. Proviso to Rule 74(1) is added to qualify or create an exception. In Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal and others- 1991 (5) TMI 252 - SUPREME COURT wherein this Court clearly held that when the language of the main enactment is clear, the proviso can have no effect on the interpretation of the main clause. 7. It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field, which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case . Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms. The scope of the proviso, therefore, is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. It has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect.