7 Most Important Differences

between Proviso and Exception

For internal aids notes kindly refer to Interpretation of Statute- Avtar
Singh (Page No. 75-103)

7 Most Important Differences between Proviso and Exception are given below:

There are slight differences in between proviso and exception. Some writers opine
that these differences are negligible, and they can be used as synonymously.

While disposing Thibauit vs. Gibson (13 LJ (Ex) 2), Park J. clarified: “Whenever a
statute inflicts a penalty for an offence created by it upon conviction before one or
more Justices of the Peace, but there is an enacting clause of persons under
particular circumstances, it is necessary to state in the information that the
defendant is not within any of the exceptions.

And it seems immaterial whether the exception be in the same section or in a

preceding Act of Parliament referred to in the enacting clause. But where the
exception is contained in a proviso in a subsequent section or Act of Parliament, it is
matter of defense, and, therefore, it is necessary to state in the conviction that the
defendant is not within the proviso.”

Proviso:
1. A proviso is a condition. It is used to remove special cases from the general
enactment and provide for them specially.
2. It follows enacting clause.
ADVERTISEMENTS:

3. It qualifies the enacting clause.

4. Halsbury says:
“A proviso follows the enacting part of clause, and is in a way independent of
it….Crawford distinguishes:
5. “A proviso is a clause added to an enactment for the purpose of acting as a
restraint upon, or as a qualification of the generality of the language which it follows.
ADVERTISEMENTS:

6. In pleadings of criminal cases, proviso works as a defense.

7. A proviso is co-extensive with the enacting clause, and also repugnant, it repeals
the foregoing enactment.

Exception:
1. An exception is intended to restrain the enacting clause to particular cases.
2. It is a part of the enacting clause.
3. It is a general application.
4. An exception is a part of the enacting part of Section.”
5. An Exception, however, operates to affirm the operation of the statute to all cases
not excepted and excludes all other exceptions, i.e. it exempts something which
would otherwise fall within the general words of the statute.”
6. It is the duty of the prosecution to see that a particular case is not within an
exception.
7. Where there is an exception co-extensive with the enacting clause, and also
repugnant, it must be ignored for its contradictory nature.