PROVISO IN LEGISLATIVE DRAFTING

Author(s): P.M. Bakshi

Source: Journal of the Indian Law Institute, Vol. 34, No. 2 (APRIL-JUNE 1992), pp. 179-186
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43951423
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 JOURNAL OF THE INDIAN LAW INSTITUTE

Volume 34 APRIL-JUNE 1992 Number 2

PROVISO IN LEGISLATIVE DRAFTING

P.M. Bakshi*

I Introduction

TRADITIONS OF legislative drafting in India and other countries have

given birth to a number of linguistic devices, not found in ordinary language.
Some of them concern sentence structure, while a few others pertain to lhe
use of particular words and phrases. Many of these have been sanctified
by usage; and those who spend their lives in the world of law, have become
so used to such devices, that they tend to fcrget that these linguistic devices
are not quite familiar to persons belonging to the non-legal world. The
proviso is one such device. It is more than a hundred years old in Indian
legislative drafting, and perhaps much older in English drafting. But
the very fact that it is very frequently used in legal drafting seems to have
made us oblivious to some of its deficiencies. A few important problems
connected with the proper use of the proviso, are proposed to be examined
in this paper. An attempt will also be made to analyse its various roles.
According to Walker1 a proviso is a clause in a deed or statute, beginn-
ing with "provided that" and operating as a condition or qualification,
frequently inserted to save or except, from the effect of the preceding words,
some rights, instances or cases.

II Proper function of proviso

It was in 1880 that Justice Lush told us that when we find a proviso,
the natural pj-esumptioh is that, but for it, the enacting part of the section
would have included the subject matter of the proviso.2 In 1909, Lcrd
Macnaghten described the proviso as "a qualification of the preceding en-
actment 'yhich is expressed in terms too general to be quite accurate."3 Iri
1944, in an appeal which went from India, Lord MacMillan observed :

♦Director, Indian Law Institute, New Delhi and Member, Law Commission of India.
1. Oxford Companion to Law 1011 (1980).
2. Mullins v. Treasurer of Survey, (1880) 5 Q.B.D. 170 at 173.
3. Local Government Board y. South Stoneham Union , (1909) A.C. 57 at 62 (H.L.);
Jennings v. Kelly, (1939) 4 All E.R. 264.

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180 JOURNAL OFTHE INDIAN LAW INSTITUTE [Vol. 34 : 2

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 casa4

All these pronouncements from the English courts Jb&y_e heeu quoted,
with approval in a number of judgments of the Supreme Court of India.5
If, on a fair construction, the principál provision is clear, a proviso
cannot extend or limit it. It 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 provision.6

Ill Main roles of proviso

Conversely, where the main provision is not clear, the proviso can be
used to interpret it.7
The main roles that can be properly assigned to the proviso in legal
drafting are, (a) exclusionary; (b) qualifying; and (c) clarificatory.
In its exclusionary role, the proviso excludes something which would
otherwise fall within the main part of the statutory provision. In its
qualifying role, the proviso qualifies, or* attaches conditions to* the pre po-
sition laid down in the main enactment. In its clarificatory role, the proviso
clarifies some doubt or ambiguity which might possibly arise from the
apparently elastic phraseology of the mam part.

(1) Exclusionary function

The exclusionary role of the proviso is a familiar one. Here, the

proviso is used to exclude a particular situation or class of objěctš or
persons from the scope of the main provision. The exclusion, if it is all
pervasive or radical, may, however create problems.

(2) Qualifying function

The qualifying function of the proviso is illustrated by a judgment

of the Privy Council,8 in which one section of the Railways Act (then in
force), imposed, on the Railways, a duty to maintain certain arches, tunnels,
etc., as would, in the opinion of the provincial government, be sufficient
to convey water freely as before. A proviso laid down that the Railways
shall not be compelled to defray the cost of any "additional accommcdatiQp

4. Madras and Southern Maratha Railway Co. Ltd. vĒ Dezwada Municipality , A.I.R.
1944 P.C. 71 at 73.
5. C.I.T. Mysore v. Indo Mercantile Bank Ltd., A.I.R. 1959 S.C. 713 at 719; Shah
Bhojraj Kuberji Oil Mills v. Subhash Chandra Yograj Singh , A.I.R. 1961 S.C. 1596 at 1600
Calcutta Tramways Co. Ltd v. Corporation of Calcutta , A.I.R. 1965 S.C. 1728 at 1730.
6. Dwarka Prasad v. Dwarka Das Sarafy A.I.R. 1975 S.C. 1758.
7. Hindustan Ideal Insurance Co. Ltd. v. L.I.C.t A.I.R. 1963 S.C. 1083.
8. Governor General v. Municipal Council , A.I.R. 1949 P.C. 39.

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1992] PROVISO IN* LEGISLATIVE DRAFTING 181

works" for. the use of owners or occupiers of lands after the ex

teņ years from the date of opening of the railway fcr public tra
held that it was not permissible to compel it to bear the exper
creased by the expansion of the city cf Madura, when the rail
constructed in 1902 and the demand was made in 1938. First ,
tion wa&,to be measured by the conditions prevailing at the time cf
tion of the railway. Second , the additional accommcdaticn wcrk
to in the proviso may be required, not because the originally co
work had become insufficient owing to change cf conditicns, b
the adjoining lard-owner had miscalculated what the conditions
existing would demand, for a commodious use cf the land. The
had provided a time of ten years as the limited time within wh
demand could be made.

(à) Clarifying function

Sometimes, the proviso performs a less positive role. It is inserted

only for the sake of clarification. The insertion of a proviso for this purpose
has to be done with care. Very cften, the insertion of a "meaningless"
proviso has been judicially criticised. As was pointed out by Lcrd
Herschell,® many instances might be given where, in legislation, a proviso
could be found that was meaningless, because it was put in to allay fears,
whén those fears were absolutely unfounded and no proviso at all was needed.
Such a proviso has no substantive function to perform.

IV Proviso as substantive provision

A very important question which has frequently arisen is, whether a

proviso can function as a substantive and additional provision,10 A connected,
but somewhat more complex question is, whether such additional provision
(incorporated in the proviso) can totally substitute itself for the main enact-
ment' and function as a parallel provision in- itself.

(1) Factories Act

It is precisely this question that has been troubling the courts in India
with reference to the definition of "occupier" in the Factories Act 1948,
as "the person who has ultimate control over the affairs of the factory,
provided that in the case of a company, any one of the directors shall be
deemed to be the occupier." It will be noticed, that the main<ipart of the
definition uses the wide expression "person", while the proviso is Confined
to the directors. The question- then arises whether, in the case of com-
panies, only a director can be deemed to be the occupier, or whether any

9. West Derby Union v. Metropolitan Life Assurance Society , (1897) A.C. 647 at 656
(HX.); D.P.P. v. Goodchild, (1978) 2 All E.R. 161 (H.Ii ).
10. Bhartia Metal Containers Pvt. Ltd. v. State of U.P.t (1990) 77 F.J.R. 93 ÇP.B.)
(All.)ã

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1 82 JO URN AL OF THE INDIAN LA W INSTITUTE {Vol. 34 : 2

other person can be regarded as the occupier, if he has the ultimate control
over the affairs of the factory. In other words, does the proviso keep intact
the main part or totally replaces it? Does it create a parallel definition of
"occupier" applicable to companies? The Allahabad High Court has
held that only a director can become the "occupier"; and, if the director
of factories of the State of U.P. asked the company in question to nominate
a director as the occupier, he is justified in doing so and the company cannot
nominate anyone else. But the Karnataka High Court has taken a
contrary view.11 The immediate question decided in the Karnataka case
was, whether an application for a factory licence, which was not signed by
a director of the company, could be rejected by the chief inspector of
factories. The court held that an officer of the company who was not a
director could be nominated as "occupier". The crucial part of the
reasoning underlying the Karnataka judgment is contained in the following
passage :u

Hence the effect of reading the whole of section 2(n) is that not
only the person in ultimate control of the factory, but also the persons
categorised in the proviso, are liable to be deemed as occupier, subject
to other operative provisions of the Act. Hence, an application
for registration of a factory or renewal thereof can be signed by
an officer of the company authorised in that behalf, even though he
may not be a director, partner or an individual of an association of
persons and he may also be shown to be an occupier in full control
of the factory. In that event, the persons named in the proviso,
though not actually occupiers, are "deemed occupiers" and are
accordingly, liable, depending upon the other provisions of the Act.

What the draftsman should have done in the definition in the Factories
Act referred to above, is that he should have dealt with the case of a
company and non-company in two different sub-clauses. If his intention
was that in the case of a director, ultimate control by him is not required and
further, that only he can be regarded as an "occupier" for the purposes
of the Factories Act in case of a company, then he should have begun the
definition, by dealing with the situation of a company, followed by that
of a non-company. Having devised this scheme, the draftsman would
be able to decide (as a matter of policy), what requirements are to be
prescribidlas necessary in each case. This would avoid the problem of
deciding/ at the stage of interpretation, whether the two situations and
relevant provisions are to be deemed to be mutually exclusive, or to be
read together.

W. W.S. Industries {India) Ļ/d. v. Inspector of Factories, (1990) 77 F.J.R. 139 (Kara.)
(single judge).
12. Id. at 144-5.

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1992] PROVISO IN LEGISLATIVE DRAFTING 183

(2) Substantive role of proviso

The Supreme Court has held that it is not an inflexible rule

that a proviso in a statute should always be read as a limi
effect of the main enactment. Generally, the natural pres
but for the proviso, the enacting part of the section would ha
subject matter of the proviso; but the clear language of t
provision as well as the proviso may establish that it is n
clause of the main provision, but is, in itself, a substantive
Where the language is quite clear and no other view is
futile to go into the question whether the proviso operate
provision or ojnly by way of an exception. The proviso to
Indian Income Tax Act 1922, states in unmistakable terms
sustained in speculative transactions which are in the nature o
not be taken into account, except to the extent of the amount
gains in any other business consisting of speculative trans
to be read with explanation (1), according to which, where
transactions carried out are of such a nature as to constitute a business,
the business shall be deemed to be distinct and separate frcm any other
business. Thus, the losses sustained by the assessee in speculative dealings
in silver through a firm, during the accounting year relevant to assessment
year 1953-54, cannot be set off against profits from any other business
activity under section 10 of the Act in spite of the first proviso to section
24(1) of the Income Tax Act 1922.14

V Cases illustrating independent role

As a general rule, a proviso is added to an enactment to qualify or

create an exception to what is contained in it and, ordinarily, a proviso
is not interpreted as stating a general rule. But provisos are sometimes
added, not as exceptions or qualifications to the main enactment, but as
saving clauses in which case they will not be construed as controlled by the
section. This is illustrated by the proviso which has been added to section
50 of the Bombay Rents, Hotel and Lodging House Rates Control Act
1947 to deal with the effect of repeal. The substantive part of the section
repeals two Acts which were in force in the State of Bombay. If nothing
more had been said, section 7 of the Bombay General Clauses Act would
have applied, and all pending suits and proceedings would have continued
under the old law, as if the repealing Act had not been passed. But the
effect of the proviso is to take the matter out of section 7 of the Bombay
General Clauses Act and to provide for a special saving.15

13. Commissioner of Income Tax , Kerala v. P. Krishna Warrior, A.I.R. 1965 S.C. 59.
14. Commr. of Income Tax , U.P. v. Jaganath Mahadeo Prasad , A.I.R. 1969 S.C. 209.
15. Shah Bhojraj Kuberji Oil Mills , supra note 5.

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184 JOURNAL OFTHE INDIAN LAW INSTITUTE [Vol- 34^2

The Stamp Duties Act 1920-1964 (New South Wales), section 102
(a), alongwith the proviso, came up for construction before the Privy Coun
It was held that on the true construction of that section, the 20 shares
dispute were to be included in the deceased's dutiable estate. Although
was often the function of a proviso merely to limit or qualify rather t
add a substantive provision, yet, a proviso did not necessarily have th
restricted effect. The words of the proviso to the section were clear
unambiguous and were to be construed with the preceding wcrds. To ç
within that section, there must have been property disposed of by a wi
settlement, containing a trust in respect of that property to take eff
after death. If that were so, then the property which, at the time of dea¿h
was subject to the trust, was to be deemed to be included in the deceas
estate. The scope of that description of property was not, in any way
restricted by the fact that it was contained in a proviso. There was n
valid ground for implying that it should be read as property which, at
time of his death, is subject to such trust and which was disposed of by th
deceased.16
Construing the Rajasthan City Municipal Appeals (Regulation)
1950, section 4(1), proviso, and the words "orders of a municipal authority"
it has been held that the - state government has power to entertain a revis
against an order of the President of the Municipal Council. In general,
function of a proviso is to limit the main part of the section and to carve
something which, but for the proviso, would have been within the operativ
part. But this is not the function of the proviso to section 4(1). The op
tive words in the main part of this section prohibit all appeals from the ap
late orders of the commissioner. The primary purpose of the proviso i
provide a substitute or an alternative remedy to that which is prohibited b
the main part of the section. The proviso is really not a proviso in. t
accepted sense, but an independent legislative provision. By this prov
to a remedy which is prohibited by the main part of the section, an alternat
is provided. The proviso is not co-extensive with the main part, but cov
a field wider than the main part of this section. Thus, the words "orders o
municipal authority" include final orders not subject to a municipal ap
which would fall into the same category as appellate orders of a commissio
and so the state government has power to entertain a revision against
order of tip President of the Municipal Council.17
Where a section of an enactment contains two provisos and the secc
proviso is, in any way repugnant to the first, the former must prevail, fo
it stands last in the enactment and speaks the last intention of the makers

16. Commissioner of Stamp Duties v. Atwill , (1973) 1 All E.R. 576 (P.C.) (Lord R
Lord Morris, Lord Simon of Glaisdale).
17. State of Rajasthan v. Leela Jain , A.I.R. 1965 S.C. 1296.
18. The King v. Dominion Engineering Co. Ltd., A.I.R. 1947 P.C. 94.

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19921 PROVISO ÎN LEGISLATIVE DRAFTING 185

VI Duty of draftsman

If a proviso has already found a place in a particular statu

that the judge can do, is to placé á proper interpretation upon i
approach, perhaps, would be that expounded by Lord Phill
appeal decided by the Privy Council from India, under, the Ind
1910. He observed:

It is well settled that there is rio magic in the words of a proviso,

tíxat the plain meaning, must be given to the words of the Legislature.1

However* what is important, is to record a warning that the draftsm

when he pīļts something in the form of a proviso, should make up his m
whether he is adopting this device only to impose a condition on the
part of the section or whether, what is stated in the proviso, is intended
entirely displace the maip part. Generally, it is ą good drafting prac
ąyoid .using the proviso as an independent enacting clause. It should
employed for stating a proposition totally to stand in place of the main
It has been stated judicially that it is "a very dangerous, and certa
unusual, course to import legislation from a proviso wholesale into the b
of the statute".20
The sum and substance of this discussion is that the proviso ought not
to be used to enlarge the scope of the section.21

vn Proviso and exception

According to some views, there is a difference between the effect cf an

exception and a proviso. The rule usually laid down upon this subject is,
that where, in a statute, matter is introduced by way of exception into a
general provision, the person relying upon such provision must also positively
show, that the particular case does not fall within the exception. In con-
trast, where the matter appears in the form of a proviso, the person relying on
the general clause need not positively show that his case does not fall within
the proviso. In other words, he who pleads the general clause, ought also
to plead the non-applicability of the exception. But, if there is a general
clause for the benefit of the person pleading, followed by a proviso which is
against him, it is enough for him to plead the general clause, leaving it to the
adversary to rely on the proviso. B. Alderson, remarked:

There is a manifest distinction between a proviso and an exception.

Therefore, if an exception occurs in the description cf the offence in the
statute, the burden of proof rests with the complainant to show that
the accused does not come within it; but, if the exception comes by way

10. Besant v, A.G. of Madras, (1919) I.L.R. 43 Mad. 146{P.C.).

20. West Derby Union , supra note 9 at 653.
21. Black, Law Dictionary 1225 (1990).

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186 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 34 : 2

of proviso, and does not alter the offence, but merely states what
persons are to take advantage cf it, then the defence must be specially
pleaded, or may be given in evidence under the general issue, according
to the circumstances.22

However in modern times this is not followed with rigidity.

VIII Conclusion

Finally, it may be observed that the proviso is a linguistic usage which is

found almost exclusively in legislation. One does not fkd the proviso in
literary writings, newspapers, official correspondence cr other similar non-
legal writings. A history cf the proviso has not so far been written. One
may suspect that what the draftsman puts in the proviso, represents something
which came to his mind later, i.e., long after he had prepared the main
section, or something which came in the mird. cf some other persons later,
who insisted that the main part of the section should be so cut dcwn by a
proviso. As was pointed out by the Supreme Court of the United States:

It is a common practice in legislative proceedings, on the consideration

of bills, for parties desirous of securing amendments to them, to
precede their proposed amendments with the term 'provided', so
as to declare that, notwithstanding existing provisions, the one thus
expressed is to prevail, thus having no greater significance than wculd
be attached to the conjunctive 'but' or 'and' in the same place, and
simply serving to separate or distinguish the different paragraphs or
sentences.23

Often, the proviso takes birth because something which was net thought
of at the original stage of the Bill, later occurred to the draftsman, or is
suggested to him in subsequent instructions.

22. Simpson v. Ready , 12 M. & W. 736 at 740; see also Manisfield in Speeres v. Parker ,
I.T.R. 141 at 144; and in R. v. Jarvis , 1 E*st. 643.
23. Georgia Railroad and Banking Co. v. James M. Smith , 128 U.S. 174 at 181.

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