Deconstructing a statutory proviso

Rules of interpreting legal enactments are generally well-known to lawyers, judges, law teachers and law students. It is now a full branch of legal knowledge.1 In some jurisdictions there are enactments dealing with interpretation or specifying legal principles.2 The act or process of interpreting or explaining the sense and intention of a written statute is also known as construction.
Construction, as applied to written law, is the art or process of discovering and expounding the meaning and intention of the authors of the law with respect to its application to a given case, where that intention is rendered doubtful either by reason of apparently conflicting provisions or directions, or by reason of the fact that the given case is not explicitly provided for in the law.3
Some authors have attempted to introduce a distinction between 'interpretation' and construction.' Etymologically there is, perhaps, such a distinction; but it has not been accepted by the legal profession. For practical purposes any such distinction may be ignored, in view of the real object of both interpretation and contraction, which is merely to ascertain the meaning and will of the lawmaking body, in order that it may be enforced. 4
There is no explanation of the distinction between interpretation and construction [in Blackstone], nor can it be inferred from the matters dealt with under each head. The distinction is drawn in some modern works, but it is not being discussed in this paper because it lacks an agreed basis. Some writers treat interpretation as something, which is only called for when there is a dispute about the meaning of statutory words. While speaking of construction as a process to which all statutes, like all other writings, are necessarily subject when read by anyone. Others treat interpretation as something, which is mainly concerned with the meaning of statutory words, while regarding construction as a process, which mainly relates to the ascertainment of the intention of the legislature.5
There are a number of philosophical theories with regard to construction or interpretation. The leading among them are Purposive Theory, Textualism, Statutory Derogation, Liberal Construction, Harmonious Construction and Literal Construction etc.
Purposive theory is the dominant theory of statutory interpretation in USA6 and UK.7 The theory is also dominant in Europe,8 Canada,9 Australia10 and New Zealand.11 In the Indo-Pakistan sub-continent dominant rule of interpretation is that of harmonious construction.12
The subject of construction and interpretation of statutes is quite complex and there are divergent views in this regard, however, keeping this debate aside, this article examines the meanings and nature of a 'statutory proviso' and describes how it affects the construction of a statutory enactment.
Nature and meanings of the term proviso
The word 'Proviso'13 means a condition or stipulation or a clause stating a condition. The word has been derived form Latin term, "proviso quod' meaning 'it being provided' that". A proviso provides a limitation, condition or stipulation upon whose compliance a legal or formal document's validity or application may depend. In drafting, it is a provision that begins with the word provided that and supplies a condition exception or addition.14
A proviso relating to a deed, lease, mortgage or a contract
A proviso lays down a condition or a provision in a deed, lease, mortgage, or contract, the performance or non-performance of which affects the validity of the instrument. It always implies a condition, unless subsequent words change it to a covenant; but when a proviso contains the mutual words of the parties to a deed, it amounts to a covenant.
A proviso differs from an exception. An exception exempts, absolutely, from the operation of an engagement or an enactment; a proviso defeats their operation, conditionally. An exception takes out of an engagement or enactment, something, which would otherwise be part of the subject-matter of it; a proviso avoids them by way of defiance or excuse.
Sometimes, a proviso works as a qualification or limitation; sometime a condition; and sometime a covenant". "'Proviso' is a condition inserted into any deed, upon the performance whereof the validity of the deed depends. Sometimes it is only a covenant. A proviso wholly repugnant to a covenant creating a personal liability is void.15
"If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant, and the earlier clause prevails. But if the later clause does not destroy but only qualifies the earlier, then the two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole".16
A statutory proviso
A proviso clause in a statute excepts something from statutory requirements, qualifies the statute, or excludes some potential area of misinterpretation. A statutory proviso "is something engrafted on a preceding enactment".17
"The ordinary and proper function of a proviso coming after a general enactment is to limit that general enactment in certain instances".18
A proviso to a section cannot be used to import into the enacting part something which is not there, but where the enacting part is susceptible of several possible meanings it may be controlled by the proviso.19
A proviso deals with the subject, which is covered by the enacting part of the provision. The proviso only carves out an exception which, but for the proviso, would fall within the language and meaning of the enacting part.
The proviso only limits the operation of the main enacting part to the extent it is indicated in the proviso, meaning thereby that but for the proviso the case would fall within the ambit of enacting part.20
How to interpret a statutory proviso
"The territory of a proviso, therefore, is to crave out an explanation to the primary enactment and exclude some thing which or else would have been beneath the section."21
A proviso as is generally accepted is in the nature of an exception to the substantive provision to which it has been appended.22
A proviso, therefore has to be interpreted strictly, and where the language of main enacting part is clear and unambiguous, the proviso cannot by implication exclude from its purview what clearly falls within the express terms of the main enacting part.23

According to the well-established principles of interpretation of statutes, a proviso attached to the main section operates as an exception and cannot render redundant or ineffective the substantial provisions of the main section.24
It is settled law that proper function of a proviso is to accept and deal with a case, which would otherwise fall within the general language of the main section, and in effect is confined to the rule or section to which a proviso has been added. The proper way to regard the proviso is as a limitation upon the effect of principal section or rule. A proviso, which is in fact and in substance a proviso, can only operate to deal with a case which, but for it, would have fallen within the ambit of the section to which the proviso is a proviso. To put it in another way the section deals with a particular field while proviso excepts or takes or carries out form the field a particular portion and therefore, it is perfectly true that before a proviso can have any application the section itself must apply.25
Ordinarily, the proviso is subordinate to the main clause. Therefore, a proviso cannot travel beyond the scope of main enactment nor it can be imported by implication in to the main ecantment.26
A proviso should not be interpreted so as to have greater effect than strict construction of the proviso rendered it necessary. Ordinarily the proviso is something subordinate to the main clause, and generally what is contained in the proviso is not to be imported by implication into the clause.27
From what has been stated above, the emergent effects of a proviso on the substantive provisions of law are as under:
-- A proviso carves out an explanation to primary enactment and provides exception.
-- It is in the nature of an exception to the substantive provision.
-- Proviso can not by implication exclude what falls within the express terms of the enacting part.
-- It operates as a limitation upon the principal section or rule.
-- Proviso is subordinate to the main clause.
-- It should not be interpreted so as to have greater effect than the principal section or rule.
(The writer is an advocate and is currently working as an associate with Azim-ud-Din Law Associates.)
1. Maxwell on Interpretation of statutes, (12th edition) Sweet & Maxwell (1969).
2. For example, The General Clause Act, 1897, (British India). The object of the Act is to place in one single statute various provisions of interpretation and of legal principles.
3. Henry Campbell Black, Handbook on the Construction and interpretation of the Laws 1 (1896).
4. William M. Lile et al., Brief Making and the Use of law Book 337 (3d ed. 1914).
5. Rupert Cross, Statutory Interpretation 18 (1976).
6. The theory took hold in the early 20th century though the work of scholar Roscoe Pound, among others.
7. Pepper v Hart [1993] AC 593. The UK courts now adopt a purposive approach which seek to give affect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was adopted.
8. The European Communities Act of 1972.
9. Rizzo and Rizzo Shoes Ltd (Re) [1988] 1SCR 27.
10. Section 155A of Interpretation Act, 1901.
11. Section 5(1) of Interpretation Act, 1999.
12. Maxwell in "Interpretation of Statutes (Twelfth Edition)" states that the phrases of statute, when there is doubt about their that means are to be comprehended in the sense in which they best harmonise with the subject of the enactment and the object which the legislature had in watch.
13. Clauses of proviso are subordinate clauses with subjunctive verbs that indicate the specific condition upon which the information of the main clause is dependent. Therefore, clauses of proviso are sometimes considered to be merely a category of conditional clauses. However, clauses of proviso express a more urgent dependency than a standard condition can, and the regular use of specific particles in introducing clauses of proviso separate the two (in theory).
Specifics:
-- Clauses of proviso are specifically characterised by a clear sense of conditional requirement or restriction:
-- dum ne lassus fiat ? "only if he does not become tired"
-- Clauses of proviso are easily identifiable through recognition of the particles used in their introduction:
-- dum
-- modo
-- dummodo
-- tantum ut/ne
-- itaÖut/ne
-- Clauses of proviso are translated:
-- provided thatÖ, with the proviso thatÖ, only ifÖ, on condition thatÖ
-- All the particles are translated according to the standard formulae for translation of proviso clauses. Individually, each of the particles does not convey any exclusively separate meaning or connotation.
Mood:
As mentioned, clauses of proviso have subjunctive verbs. Grammarians usually classify these subjunctives as either hortatory or optative in origin. Sometimes, though not often, a hortatory subjunctive without any introductory particle will serve to express proviso. Occasionally, a hortatory subjunctive will appear in the main clause ? this is simply coincidental (ie, not any sort of formula) and should not be treated in a special way: oderint, dum metuant ? "let them hate, provided that they fear." As is the case with conditional constructions, this substitution only affects the main clause in the sentence and not the provision, or subordinate, clause. Relative clauses of characteristic or result are, from time to time, classified as clauses of proviso.
This adverbial usage/translation is one taken purely from context, for, in these cases, no introductory particle need be supplied:
-- servus est nemo qui modo tolerabili condicione sit servitutis
-- "Provided that he is in a tolerable condition of slavery, no man is a slave."
14. Black's Law Dictionary, (Ninth Edition), Thompson West Publishers.
15. Williams v. Hathaway, 6 Ch. D. 544.
16. Forbes v. Git [1922] 1 A.C. 256.
17. R. v. Taunton, St. James, 9 B. & C. 836.
18. Re Barker, 25 Q.B.D. 285.
19. Jennings v. Kelly [1940] A.C. 206.
20. Commissioner of Income Tax v Nasir Ali 1999 SCMR 563.
21. CIT v Indo Mercantile Bank, 4 I.T.R. 239 (P.C.).
22. Paramatha Nath Chowdhary v Ramin Mandal PLD 1965 SC 434.
23. Id. n19.
24. 2001 SCMR 565.
25. 1998 SCMR 2381, see also Singh and others v. State of Uttar Pradesh and another (AIR 1962 Allahabad 606.
26. PLD 1962 (W.P.) Karachi 837.
27. 2007 CLC 1687.