OVERVIEW OF LEGISLATIVE REPEAL AND CONSEQUENCES OF REPEAL AND SAVINGS OF OLD LEGISLATION:A BRIEF DISCUSSION
By Hon’ble Dr. Justice Kaushal Jayendra Thaker
The calendar revolves around the power of expression of the legislation, which gives the people of the nation courage to live without fear. The picture represents life we see around us every day and in this milieu of Indian tradition canvases the fact the static laws have been given burial so that the laws and statutes would be such which would be acceptable in the Indian situation and for that the Statute law requires various legislations.
We see so much variety of legislations day in and day out legislated by Parliament that we are left wondering at the power of legislation and the creative possibilities, which may rise due to various judicial interpretations. At times there are amendments, which are made in the legislation, which can be terms to be a mass amendment. A series of amendments are carried out which would make things difficult for interpreter to decide. A series of amendments should normally be avoided so that the correct position in regard to the person's liability can be understood by the consumer. The constant repeal of redundant or obsolete legislation or rules on recommendation of law commission of India and Replacing or amending the laws as needed is v important for smooth ruling and administration. A Statute may repeal any Act completely or in part by express provision or by
With these opening words the topic on the genesis of interpretation of statutes will have to be viewed because the statues are termed as perpetual and temporary statues, and therefore, the aspect of repeal and savings on the expiry and repeal of the statute is a topic, which falls in realm of judicial interpretation.
The author would like to discuss the said topic in the following manner:
(1)MEANING AND CATERGORISATION OF STATUES
b) Temporary Statutes
(2)APPLICABILITY OF GENERAL CLAUSES ACT TO INTERPRETATION
(a) Section(3)19 and Section 5
(b) Section 6
(c) Section 28
(3) TYPES OF REPEAL
(A) Express Repeal and
(B) Implied Repeal
(4) CONSEQUENCES OF REPEAL OF STATUTE
(c) Savings of the rights acquired.
(5) STATUS OF SUBORDINTE LEGISLATIONONCETHE STATUTE IS REPLACED? REPEALED
6) SAVING CLAUSE
(7 ) QUASI REPEAL BY NONUSER ITS APPLICABILITY IN INDIA
The concept regarding the statute being perpetual or temporary raises certain eyebrows. The concept of perpetual and temporary means normally statute is perpetual when no time is fixed, but if the enactment fixes time for which Act is to remain in operation such statute remains in force until its repeal.
In this light the aspect regarding perpetual and temporary statute would have to be gone into. A perpetual statute cannot be said to be a statute in the sense that it has a life of eternity and it cannot be repealed. The terminology that the statute is perpetual is in the sense efflux of time or non-user would not make it obsolete.
(a) Perpetual Legislations
The concept of Perpetual Statute is, that a statute, which is brought on the statute book without fixing any time limit during the period which it will remain to operate.Most of the legislations would be perpetual in broader sense, as they do not fix time for their functioning.. A cessation of transitional legislative power would have no effect on the continuance of a perpetual Act enacted during the continuance of that power. The term perpetual has to be construed to mean that the legislation is applicable even if it is unused for some time its operation seizes only by express or implied repeal.
(b) Temporary Statutes
A temporary statute is one when its duration and operation has specified time and such a statute would normally cease to operate on the expiry of the specified time unless either it is extended or repealed. A statute is not temporary just because the purpose of the statute is temporary. The main criteria for a statute to be temporary, is to be seen from the period fixed for its duration. Though the Finance Acts are Annul Act, they are not temporary because they contain provisions of General character, which are of permanent operation. When a temporary statute expires, Section 6 of the General Clauses Act would have no application because it is limited to repeal and there is no repeal when the duration of Act itself expires. The legal proceedings under the expired statute, the question normally arise in connection with the legal proceedings in relation with the matters connected with the temporary Act and whether they can be continued or initiated after the Act is expired. The answer to such question would depend upon the construction of an Act as a whole. The Apex Court in S. Krishnan v. State of Madras has held that if there is no saving provision in the temporary Act then the proceeding would IPSO FACTO terminate as soon as the statute expires, and therefore, a person cannot be prosecuted and convicted for an offence after its expiration and in absence of a saving provision. The expiry of a statute would not make it dead for all purposes the order passed under such temporary statute would still operate.
(2) APPLICABILITY OF GENERAL CLAUSES ACT 1897:
The Apex Court in H S Mehta Vs .State of Maharastra and in State OF M.P.Vs Kedia Leather and have considered applicability of General Clauses Act and implied repeal.. The terms amendment/ suspension /and repeal by implication is explained in very simple in Union Of India Vs. Ranjit K.Sahawhich explains the recent trend concerning repeal of statute on touch stone of principles of General Clauses Act.
A specific law means a special statute, which covers a specific field. It is a settled principle of statutory interpretation of the subsequent statute i.e. a specific law vis-à-vis general law that it would not be impliedly repealed. A repeal has to be express to repeal a specific rule or statute. Unless the General Rules specifically repeal the effectiveness of special rules, question of the latter rules becoming ineffective or inoperative would not arise. In order to be effective, an express mention is required rather than an imaginary repeal. It is now a well-settled principle of law for which no dilation is further required that law courts are rather loath to repeal by implication. As far as aspect of interpretation of statute is concerned, a provision of General Clauses Act, 1897 will apply when the new Act is brought into effect, more particularly, provisions of Section 5 and 6 of the General Clauses Act, are important for coming to the conclusion whether the repealed Act would affect anything done or suffered under the old Act. Section 24 deals with the re-enactment of an Act and the object of the section regarding what preservations, regarding the continuity of the notifications, orders, schemes, rules or bye-laws issued under the repealed Act unless they are shown to be inconsistent. Thus the provisions of the re-enactment Act, the General Clauses Act specifically deals and affect the repeal and re-enactment of the Act and the object of the Act, new section or an Act.
In light of the aforesaid aspect, the provisions of General Clauses Act pertaining to the topic, being dealt with would have to be looked into. Section 5 of the General Clauses Act provides where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives the assent -Clauses (a) now would become redundant. Therefore, Act of the Parliament would require assent of the President. Subsection 19 of section 3 of the General Clauses Act defines the term enactment which would partake within itself all sections of legislationSub Section 3 of the Section 5 deals with the Saving Clause and wherein it is legislated that unless the contrary is expressed, a Central Act or regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. Section 6, 6 (A) and 7 of the General Clauses Act are more important with regard to the repeal of the enactment. If the latest statute incorporates by reference provisions of the earlier statute, repeal or amendment of the earlier statute would not affect the provisions of the latest statute, which are incorporated in the new Act. However, this rule has to be read subject to the provisions of Section 8 of the General Clauses Act. The object of Repealing and Amending Acts is not to bring in any change in law but to remove enactments which have become unnecessary. "Mostly, they expurgate amending Acts, because having imparted the amendment to the main Acts, those Acts have served their purpose and have no further reason for their existence." Jethanand v. State of Delhi, The repeal of an amending Act, therefore, has no repercussion on the parent Act that together with the amendments remains unaffected. It was, therefore, held that section 6(1-A) introduced in the Wireless Telegraphy Act, 1933, by amending Act of 1949 was not affected when the amending Act was repealed by the Repealing and Amending Act of 1952. Jethanand v. State of Delhi,( supra)
A very interesting question arose regarding effect of expiry of the TADA Act of 1987 and Section 1 (4) was very clear, and therefore, the Apex Court in the case of Mahemood Eqbal v. State of Maharashtra,, and therefore, it was held that as per the specific provision in the TADA, pending investigation and legal proceeding cannot come to an end unless there is a final conclusion and determination a case would not automatically withdraw. Court would have to proceed assuming that the Act is not expired. As per the provisions of Section 6 a right which is clear and accrued under the Repealed Act will continue. There is a distinction regarding accrued right of renewal. Permit to grant of renewal only mere privilege but not acquired or vested right, and therefore, when the new law comes into force, the discretion if conferred can be exercised once again. In Shree Bhagwati(supra) it is held that section 6 of the g clauses act 1897 relates to repeal of statute as well the enactments therein .The Apex court has held that there is no real difference in the terms 'omit' 'delete' and 'repeal 'as they are used interchangeably. The term repeal refers to delete and means omission.
The Apex court in Jindas OIL
mill VS Godhra Electricity Co Ltd
has considered effects of repealing statute in view of section 6 of the
(3) KINDS OF REPEAL
Recently the Supreme court in Pharmacy Council Of IndiaVs Dr S.K.ToshiwalaEducation Trust Vidarbha Institute Of Pharmacy and Others has elaborately discussed the twin terms namely express repeal /implied repeal/ and no repeal of the statute.One more aspect which requires to be mentioned are that the term repeal is normally used when entire statute is revoked or canceled by other legislation simple example is new 1988 Motor Vehicles Act legislated in place of Motor Vehicles Act 1939.The term amendment would be normally used when part is substituted.and re-enacted.The repealing And Amending Act 2019 has repealed 58 Acts.The term repeal means revoke if that is declared it would be express repeal.
(A) Express Repeal
As per the provisions of Section 6 of the General Clauses Act this topic would have to be discussed, as normally the repealing of the old statute by the new statute would be expressed. However, at times there may not be words which bring about Express Repeal. The use of word 'shall cease to effect' is not uncommon when the object is to repeal only a portion of an Act, words 'shall be omitted' are used. The use of any particular form of word which brings about express repeal would be spelled by the legislation that earlier enactment is repealed The usual form is to use the word 'is hereby repealed' and to mention the Act which is to be repealed in the repealing section or to catalogue them in a schedule. The legislature, at times does not enumerate Acts which wants to repeal but only mentions that all provisions inconsistent with this Act would hereby stand repealed. There may be partial express repeal of certain provisions of the statute. In A.R.Antulay Vs R.S.Nayak the Supreme Court has held by majority that where there is express provision overriding earlier provision it stands repealed.
(b) Implied Repeal
t is a settled position of interpretation of the statute that there is a presumption against a repeal by implication and the reason for this rule is mainly based on the assumption that the legislature while enacting law takes into consideration the existing laws on the said subject matter and when it does not provide for repealing provision, it is to be understood that the legislation has no intention to repeal the existing legislation. When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle expressio unius est exclusio alterius. Further, the presumption will be comparatively strong in case of virtually contemporaneous Acts. An implied repeal of an earlier law can be inferred only where the later enactment had the power to override the earlier law and it is totally inconsistent with the earlier law and where both the legislation are so inconsistent with each other that they cannot stand together. A logic behind this kind of implied repeal stands very effective as two inconsistent laws cannot both be valid without contravening the principle of contradiction. This law will give weightage to the later law as the Court will have to lien on the constitutional validity of the later enactment. However, if the later law for these defects cannot be implemented till the defects are solved and till then earlier law would function. Where a later enactment or a subordinate legislation is so inconsistent with or repugnant to an earlier enactment or subordinate legislation that the two cannot co-exist, then the latter one would affect repeal of the former by implication. Repeal by implication is not ordinarily favoured by the Courts but the principle on which the rule of implied repeal rests has been stated by Maxwell on Interpretation of Statutes (Twelfth Edition) at page 193 thus :"If, however, the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one that the two cannot stand together the earlier is abrogated by the later (vide Kutner v. Phillips)."In Zaverbhai Amaidas v. State of Bombay, Apex Court has approved the above principle. It is a well settled rule of construction that if a later statute again describes an offence created by a previous one, and imposes a different punishment, or varies the procedure, the earlier statute is repealed by the later statute after quoting these observations the Court went on to say:"It is true, as already pointed out, that on a question under Art. 254(1) whether an Act of Parliament prevails against a law of the State, no question of repeal arises; but the principle on which the rule of implied repeal rests, namely, that if the subject matter of later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, will be equally applicable to a question under Art. 254(2) whether the further legislation by Parliament is in respect of the same matter as that of the State law."
The aforesaid principle of implied repeal has been approved and applied in a couple of other decisions by the Hon'ble Apex Court, particularly in T.Bari v. Henry Ah Hoe, Charangadhra Chemical Works v. Dharangadhra Municipality,
However, if there is express repeal of a provision, question of implied repeal will not arise. A notification cannot annul provision enacted by the legislature and this power is only with the legislation and where subsequent special legislation on the said subject is a self contained complete code in itself than in those circumstances, the legislative intent is deemed to be to exclude the earlier general laws on the subject, and therefore, the actual detail comparison of both the legislation would go to show that the power to repeal and enactment is with the parliament.
It is a principle of interpretation that each case will have to be decided i.e. construction and operation of two Acts, the earlier Act and the new Act. A recital in a later Act that it was not repealing an earlier Act will be of no avail. If the later Act, which enacted the provision which is quite contrary to the earlier Act, then in those circumstances, the earlier Act or the said provision would stand repealed.
The conflict between two legislations and the effect has been discussed by the Apex Court considering Right To Information ACT 2005 and Gujarat High Court Rules 1993 holding that the non Obstante clause in RTI Act cannot be applied to hold that the rules are impliedly repealed. Chief Information Commissioner Vs High Court Of Gujarat.
(4) CONSEQUENCES OF REPEAL
A repeal without saving clause will make earlier legislation to be defiled from list of statutes .A repeal which has saving clause would save effect of the statute of the acts doneor delegated legislate will stop being in force.
Section 6 of the General Clauses Act applies to all types of repeals. The section applies whether the repeal be expressed or implied, entire or partial or whether it be repeal simpliciter or repeal accompanied by fresh legislation. The section also applies when a temporary statute is repealed before its expiry. But it has no application when such a statue is not repealed but comes to an end by expiry. The section on it own terms is limited to a repeal brought about by a Central Act or Regulation. A rule made under an Act is not a Central Act or regulation and if a rule be repealed by another rule, section 6 of the General Clauses Act will not be attracted. In Janardan Dagdu Khomane Vs Eknath Bhikhu the express provision to repeal an enactment cannot be read notwithstanding repeal of section 94 of Trusts Act 1882. The effect of a statute on contract and suit for specific performance has been considered recently by the Apex Court in Ferrodous Estates (pvt) Ltd Vs. P. Gopirathnam (decd) and Others. Reference to Indore Development Authority Vs Manoharlal And others would clarifies consequences of repealed land Acquisition Act 1894 by the 2013 Act. The protection under section 79 of I T Act 2000 prior to its substitution did not protect an intermediary of action under Indian Penal Code GOOGLE INDIA PRIVATE LTD Vs Vishaka Industriesrefer to the decision of division bench of Guj High Court in Add C.I.T. Vs Shri Gopal Gram Seva Sahakari Mandli Ltd.
As early as 1962 The High Court of Gujarat was to decide as to erstwhile rules framed by Patan Municipality in 1921 but on merger of new rules were framed but they were declared ultra vires by Bombay High Court .The old rules would continue to be in force? The old rules will hold the field as the new rules would not be on statute book State Of Gujarat Vs Pingal Ramde The common law rule of revival has been abrogated by sections 6 (a) and 7 of the General Clauses Act, 1897. The result, therefore, is that if one Act is repealed by a second, which again is repealed by a third, the first Act is not revived unless the third Act makes an express provision to that effect. As regards revival of enactments section 6(a) covers what is more emphatically declared by section 7, but the latter is limited in operation to enactments; whereas the former is wider in operation and will prevent the revival of many other matters, e.g. the revival of a void contract or of common law. A different preposition is propounded by the Apex Court while dealing with Pre amendment provisions would revive once the amendment is held to be violative of basic structure of Constitution held in Supreme Court Advocates on Record Association Vs Union of India.
(c) Savings of the rights acquired.
Author in this overview shall be discussing the Savings of the legislation in topic under the Savings but the concept here is to discuss rights pre and post repeal of the legislation l sub clauses c, d and e of Section 6 of the General Clauses Act and reference to prevention of the obliteration of a statute in spite of it would keep intact rights acquired or accrued and liabilities which have incurred during its operation. Only right's obligation, penalty, forfeiture or punishment incurred is covered by the said provision. A very old decision of the Calcutta High Court in the case of Jatindra Nath De Vs Jetu Mahato and others  would make this topic clear wherein the court held that in a case where transfer occurred before the commencement of amended statute an immediate right that accrued to the landlord would continue and the act done would be saved.
(5) SUBORDINTE LEGISLATION UNDER THE REPEALED STATUTES:
As a consequence of the general principle that a statute after its repeal is as completely effaced from the statute book as if it has never been enacted, subordinate legislation made under a statute ceases to have effect after repeal of the statute. This result can be avoided by insertion of saving clauses providing to the contrary. When a statute is repealed and re-enacted, section 24 of the General Clauses Act, 1897, provides for continuance of any appointment, notification, Order, scheme, rule form or by-law made or issued under the repealed statute in so far as it is not inconsistent with the provisions re-enacted. The continuance of subordinate legislation is qualified by the fact that the same is not inconsistent with the reenacted provision.
A saving provision in a repealing statute is not exhaustive of the rights and obligations so saved or the rights that survive the repeal. Act replacing or Ordinance to be given retrospective effect from the date of promulgation of the Ordinance and providing that anything done or any action taken under the Ordinance to be deemed to have been done or taken under the corresponding provisions of the Act. It was held that even if the Ordinance to be unconstitutional, validity of anything done or any action taken under the Ordinance can still be justified with reference to the provisions of the Act- Special Bearer Bonds (Immunities and Exemptions) Ordinance and Act, 1981 - Constitution of India, Art. 123 - General Clauses Act, 1897, S. 6 R.K. Garg v. Union of India. There is discretion between the proviso exception and saving clauses. Saving clause is used to preserve from destruction certain rights, remedies or privileges already existed. Saving would mean that it saves rights which party previously has but it would not give him any new rights. Saving clauses are normally introduced into the Acts while repealing the earlier enactment so as to safeguard rights which, but for the saving clauses would be lost and these clauses are seldom used to construe provisions of the Act. However, a saving clause which is repugnant to the enactment would be void for it contrariety because the repugnant provision is normally considered to be repealed. The vested right which is conferred by on the statute cannot be take away by subsequent amendments without specifically or impliedly providing there for. A special procedural law is enacted and special tribunal in place of Civil Courts is constituted yet was an effective part of Justice Delivery System, such law would repeal the earlier procedure and unless both statutes are plainly repugnant to each other, the Court should not normally favour implied repeal and the savings clauses alone should not be looked into. At times insofar as the inconsistent provisions of the new Act would mean that the consistency is restricted to such provision of the repealed Act which comes by the interpretation of the Court and not entire scheme of the enactment.
The saving law would mean "anything duly done or suffered thereunder" used in clause (b) of Section 6 of the General Clauses Act are often used by the legislature in saving clause which is intended to provide that unless a different intention appears, the repeal of an Act would not affect anything duly done or suffered thereunder. The Supreme Court in Hasan Nurani Malak Vs Assistant Charity Commissionercase has held that the object of such a saving clause is that the pre-existing law continues to govern the things done before a particular date from which the repeal of such a pre-existing law takes effect.
Whether offence was committed and FIR was lodged during operation of Prevention of Corruption Act 1947, the High Court should have held that the accused should have been charged under Section 13 instead of Section 5 of 1947 Act. This is a latest pronouncement on the Prevention of Corruption Act, 1988 which repealed 1947 Act and by reading the decisions reported in State of Punjab v. Harnamsingh, Thus a new statute would come into force by either supplementing head or amending the old legislation or absolutely doing away with the old legislation and bringing in fresh piece of legislation. In case of simple repeal without saving clause the old enactment or any other intention being expressed the Act will be repealed Parayankandiyal Eravath K Kalliani Amma Vs K devi where question of legitimacy of 2nd marriage was under challenge and consequences would follow unless there is a saving clause or other intention was expressed. Reference to the Arbitration and Conciliation Act 1996 as amended by Act of 2015 will be relevant as section 26 is saving clause and has recently been interpreted in BCCI Vs Kochi Cricket Club .Consequences of repeal of FERA and the adjudications under it has been discussed by the Supreme Court in Union Of India and others Vs Premier Ltd (formerly Premier Automobiles Ltd.), which can also be glanced by the reader for detailed reading.
7. QUASI REPEAL BY DESUETUDE:
The term desuetude in common parlance means long and continued non use of a particular legislation makes it invalid. The applicability of the said doctrine is in grey area and there is divergence of opinion of 3 judge bench of Apex court .The term has been approved by the Apex court in Monnet Ispat and Energy Ltd. Vs. Union of India holding that practice contrary to the legislation was followed and the legislation was not operated for long. The doctrine must be applied if the aforesaid twin conditions are fulfilled.
The Government from time to time undertakes exercise of replacing archaic laws which according to the undersigned chocks the system and unnecessarily uses space and conflicts with Constitutional goals .The interpretation of Statutes is a very complex subject as it partakes several facets .The provision of several interpretative jurisprudence have to be glanced to see whether the Act is eclipsed amended or impliedly substituted so as to make it non applicable .One more aspect to be seen would inapplicability vis-a-vis special legislation e.g. Gujarat Prohibition Act 1949 vis a vis Provisions of Criminal Procedure Code 1973 see Pareshkumar J. Brahmbhatt Vs State Of Gujarat.
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