Proviso

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss how is proviso useful in interpretation of statute and its construction?

Proviso:

A proviso merely carves out something from the section itself. A proviso is a subsidiary to the main section and has to be construed in the light of the section itself. Ordinarily, a proviso is intended to be part of the section and not an addendum to the main provisions. A proviso should receive strict construction. The court is not entitled to add words to a proviso with a view to enlarge the scope.

“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 proviso”. In the words of Lord Macmillan: “The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to the case”.

A distinction is said to exist between the provisions worded as ‘proviso’, ‘exception’ or ‘saving clause’. ‘Exception’ is intended to restrain the enacting clause to particular cases; ‘proviso’ is used to remove special cases from the general enactment and provide for them specially; and ‘saving clause’ is used to preserve from destruction certain rights, remedies or privileges already existing.

The proper function of a proviso is to except and to deal with a case which 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. 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. Normally, a proviso does not travel beyond the provision to which it is a proviso. It craves out an exception to the main provision to which it has been enacted as a proviso and to no other.

The proviso is subordinate to the main section. A proviso does not enlarge an enactment except for compelling reasons. Sometimes an unnecessary proviso is inserted by way of abundant caution. A proviso may sometimes contain a substantive provision.

A construction placed upon a proviso which brings it into general harmony with the terms of section should prevail. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment.

Judgments

Mullins v. Treasury of Survey 1885 (5) QBD 170 : AIR 1961 SC 1596 : AIR 1965 SC 1728

As was stated in Mullins v. Treasury of Survey, 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 except and to deal with a case which 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.

State of Punjab & Anr. v. Ashwani Kumar & Ors, AIR 2009 SC 186

"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."

S. Sundaram Pillai v. V.R. Pattabiraman AIR 1985 SC 582 : (1985) 1 SCC 591

Coming to the interpretation of proviso and explanation, we may refer to a well known judgment of the Supreme Court in S. Sundaram Pillai v. V.R. Pattabiraman. After exhaustively referring to the earlier case law on scope and interpretation of a proviso as well as explanation to a section, the Supreme Court laid down as under: 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 options addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.

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