Suchismita Barua - 214124 | Interpretation of Statutes

Expiry, ReEnactment & Repeal

of Statutes
(Monsoon Semester Project) |

CRITICAL EXAMINATION OF PRINCIPLES

EVOLVED BY THE JUDICIARY

Contents
INTRODUCTION............................................................................................................ 2
SCOPE.......................................................................................................................... 3
EXPIRY OF STATUTES.................................................................................................... 3
PERPETUAL STATUTES.................................................................................................. 3
Temporary statutes...................................................................................................... 3
effect of expiry of temporary Statutes.........................................................................4
legal proceedings under expired statute......................................................................4
Notifications, Orders, Rules etc. MAde under temporary statute..................................6
Expiry doesnt make a statute dead for all purposes...................................................6
Repeal by temporary statute.......................................................................................7
REPEAL........................................................................................................................ 8
EXPRESS REPEAL......................................................................................................... 8
IMPLIED REPEAL........................................................................................................... 9
(a) General............................................................................................................ 9
Consequences of repeal.............................................................................................12
General................................................................................................................. 12
RE-ENACTMENT.......................................................................................................... 14
CONCLUSION.............................................................................................................. 15
BIBLIOGRAPHY........................................................................................................... 15

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INTRODUCTION
In this changing and very dynamic society, it is not possible to always take into account and
anticipate every situation that would take place now or in the future by the makers of law. Due to
this reason, it is important that statutes are interpreted properly keeping in mind the changing
dynamics of the society. Sometimes, due to changing situations and circumstances, statutes are
repealed. Sometimes they are enforced just for a limited period, after which they expire and some
may be revived as per the needs of the legal system. But what remains significant is the
interpretation of the statues and the subsequent consequences of expiry, revival and repeal. Judiciary
has adopted and developed several principles and approaches when dealing with expiry, repeal and
revival. In this paper, we would look at the different approaches that were adopted and evolved by
the judiciary when dealing with expiry, repeal and revival of statues.

SCOPE
The scope of my paper will be limited to discussing the different principles and approaches adopted
and evolved by the judiciary. I will talk about different statutes which would be needed to
understand expiry, repeal and revival. I will also discuss relevant case laws and principles laid down
therein.

EXPIRY OF STATUTES
There is a difference between expiry of a temporary statute and repeal of it. To understand expiry of
statute, it is important to distinguish between temporary and perpetual statutes.
PERPETUAL STATUTES

A perpetual statue is a statute for which there is no specified time fixed for its duration and remains
in force until repealed which maybe express or implied. A perpetual statute is not perpetual in the
sense that it cannot be repealed but perpetual in the sense that it cannot expire i.e. there is no

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abrogation by efflux of time. A cessation of transitional legislative power has no effect on the
continuance of a perpetual Act enacted during the continuance of such power.1
TEMPORARY STATUTES

A statute can be said to be temporary when its duration is fixed only for a specified time and such a
statute expires on the expiry of such specified time unless repealed before such expiry. In Maganti v.
State of Andhra Pradesh2, it was said that a statute cannot be regarded as temporary, if in its
preamble, the purpose of such statute is temporary but no such time limit is prescribed for its
duration. The duration of a temporary statute may be extended by a fresh statute or by exercise of a
power conferred under the original statute. It would not be a case of mere extension, if the extension
of a temporary statute is accompanied by a substantial amendment.
EFFECT OF EXPIRY OF TEMPORARY STATUTES

Section 6 of the General Clauses Act, 1897 which talks about effect of repeal of statutes will not
apply in case of expiry of a temporary statute. The leading authority on the point is the dicta of
Park, B, in Steavenson v. Oliver.3 The extent of the restrictions imposed and the duration of its
provisions, are matters of construction"4. Therefore, looking into the construction of a statute and its
interpretation becomes very important in case of expiry of temporary statutes.
Keshavan Madhava Menon v. State of Bombay5, it was said;

1 State of Assam v. K.B. Kurkalang, AIR 1972 SC 223

2 AIR 1970 SC 403

3 (1841) 151 ER 1024

4 Bindra, N.S., The Interpretation of Statutes and General Clauses Acts (Central and
State) with Phrases and Word, pages 659 - 723

5 AIR 1951 SC 128

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It is well known that on the expiry of a temporary statute no further

proceedings can be taken under it, unless the statute itself saved
pending proceed- ings. If therefore, an offence had been committed
under a temporary statute and the proceedings were initiated but the
offender had not been prosecuted and punished before the expiry of
the statute, then, in the absence of any saving clause, the pending
prosecution could not be proceeded with after the expiry of the
statute by efflux of time
LEGAL PROCEEDINGS UNDER EXPIRED STATUTE

Question Whether legal proceedings be initiated or continued after the expiry of a temporary Act?
It has been mentioned before in this paper, that S.6 of General Clauses Act, 1897 is not applicable to
expiry of an Act, therefore the answer to the above question mainly depends again on the
construction of the Act as a whole6. Sometimes saving provisions similar to the effect of S.6 7 are
enacted in the Act by legislatures but in the absence of such a saving provision, proceedings initiated
against a person under a temporary statute ipso facto terminate as soon as the statute expires.
Therefore, no one can be prosecuted and convicted under an Act after its expiry unless there is a
saving provision enacted in the Act.
S. Krishnan v. State of Madras8
The majority held that the Preventive Detention (Amendment) Act, 1951, was not invalid on the
ground that it did not fix a maximum period for detention, inasmuch as the Act itself was to be in
force only for a period of one year and no detention under the Act could be continue after the expiry
of the Act. The dissenting opinion was that sub-section (1) of s. 11 of the impugned Act contravened
Art. 22 (4) of the Constitution inasmuch as it did not fix any maximum period of detention, but on
6 R. v. Wicks, 1946 2 A11 ER 529

7 General Clauses Act, 1897

8 AIR 1951 SC 301

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the other hand empowered the government in express terms to order that a detention shall continue
"for such period as it thinks fit". The view that a detention which has been ordered under an Act
would come to an end with the expiry of the Act is not sound.
District Mining Officer v. Tata Iron and Steel Co.9
Certain State Acts imposed cess or other taxes on minerals which were declared void in different
cases by the Supreme Court. Thereafter Parliament enacted the Cess and other Taxes on Minerals
(Validation) Act, 1992 which included the said Acts in a Schedule. Section 2 of the Validation Act
provides: 'The laws specified in the Schedule to this Act shall be, and shall be deemed always to
have been, as valid as if the provisions contained therein relating to cess or other taxes on minerals
had been enacted by Parliament and such provisions shall be deemed to remain in force up to the 4th
day of April 1991". The question before the Supreme Court was whether because of the Validation
Act the States were entitled to retain only the cess and taxes already collected before 4th April, 1991
or whether they were also entitled to collect the cess and taxes due upto 4th April 1991 but not collected till that date. In holding that the Validation Act did not enable the States to collect the cess and
taxes not collected till 4th April 1991, one of the reasons given by the Court was that the effect of
section 2 was that the Acts invalidated became temporary statutes expiring on 4th April, 1991 and as
there was no saving clause in the Validation Act and as section 6 of the General Clauses Act had no
application to expiry of a temporary statute there could not be recovery and collection of cess and
taxes which may have become due but were not collected till 4th April, 1991.10
NOTIFICATIONS, ORDERS, RULES ETC. MADE UNDER TEMPORARY STATUTE

Question Whether any appointment, notification, order form or by-law issued under any
temporary statute will come to an end with the expiry of such statute?
The normal rule is that any appointment, notification, order, scheme, rule, form or bye-law made or
issued under any temporary statute will expire with the expiry of such temporary statute and such
order, notification, form, by-law, appointment etc. will not be revived by the revival of such statute.
9 AIR 2001 SC 3134

10 Bindra N.S., supra note at page 662

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This is because of S.24 of the General Clauses Act, 1897 does not apply in such a case. Similarly, a
persons detention under a temporary statute relating to preventive detention will automatically
come to an end on the expiry of the statute11.
EXPIRY DOESNT MAKE A STATUTE DEAD FOR ALL PURPOSES

As discussed above, that any proceedings under any temporary statute that would initiate and
continue after the expiry of such temporary statute will come to an end provided that there is no
saving clause enacted in such a statute. However, such statute is not completely dead for all
purposes. The judiciary has regarded that construction of such a statute plays a pivotal role in
deciding the nature of rights and obligations arising out of such statute are enduring or not.
Steavenson v. Oliver12
Every person who held a commission or warrant as a surgeon or assistant surgeon became entitled
to practice as an apothecary without having to pass the usual examinations under S.4 of VI Geo. 4,
c.133. The statute was a temporary statute. The Court in this case held that anyone who has
acquired the right to practice as an apothecary without passing the usual examinations will not lose
the same on expiry of the statute13.
State of Orissa v. Bhupendra Kumar14
Elections were held for the Cuttack Municipality and 27 persons were declared elected as
Councillors. One B, who was defeated at the elections, filed a writ petition before the High Court
challenging the elections. The High Court held that the electoral rolls had not been prepared in
11 S. Krishnan v. State of Madras, AIR 1951 SC 301 as mentioned in Bindra N.S. at page
667

12 (1841) 151 ER 1024

13 Bindra N.S., supra note at page 668

14 AIR 1962 SC945

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accordance with the provisions of the Orissa Municipalities Act, 1950, as the age qualification had
been published too late thereby curtailing the period of claims and objections to the preliminary roll
to 2 days from 21 days as prescribed; Consequently, the High Court set aside the elections. The
State took the view that the judgment affected not merely the Cuttack Municipality but other
municipalities also. Accordingly, the Governor promulgated an ordinance validating the elections to
the Cuttack Municipality and validating the electoral rolls prepared in respect of other
municipalities.
The invalidity of the electoral rolls and the elections to the Cuttack Municipality did not revive on
the expiry of the Ordinance. The general rule with regard to temporary statutes is that, in the
absence

of a specialprovision to the contrary, proceedings being taken under it against a person

will ipso facto terminate as soon as the statute expires. But, if the right created by the Statute is of
an enduring character and has vested in the person, that right cannot be taken away simply because
the statute has expired. The rights created by the Ordinance lasted even after the Ordinance lapsed
as its object was to remove the invalidity permanently.
REPEAL BY TEMPORARY STATUTE

Question If an existing statute is repealed by a temporary statute, whether such statute will revive
on the expiry of the temporary statute?
Both the Interpretation Act, 1899 and the General Clauses Act, 1897 do not take into consideration
the case of expiry of a repealing enactment, but only are limited to repeals of a repealing enactment.
But S.7 of the General Clauses Act, 1897 which corresponds to S. 11(1) of the Interpretation Act,
1899 might seem to have a different language but the context and the setting of this section still is
not applicable to expiry of repealing statutes. Therefore, the court in such a case has regarded the
construction of such a repealing enactment as important om determining the above question. In
State of Orissa v. Bhupendra Kumar15, the court said
the intention of the temporary Act in repealing the earlier Act will
have to be considered, and no general or inflexible rule in that behalf
can be laid down
15 AIR 1962 SC945

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State of Haryana v. Amarnath Bansal16

In this case it was held that the Jind State Civil Service Regulations, 1945 did not revive after the
expiry of the Pepsu Ordinance No. 16 of Samvat 2005 which repealed the above Jind State Civil
Regulations, 1945. This is because the intention of the repealing was to repeal them absolutely.
If on construction of a repealing provision of a temporary statute is held to expire with the expiry of
the Act, the repeal would be construed as only a temporary repeal. The Privy Council observed to
the same effect in Gooderham & Worts case17 when it said that the repeal effected by the temporary
legislation was only a temporary repeal. When by the fiat of Parliament, the temporary repeal
expired, the original legislation automatically resumed its full force. No enactment of it was
required.18

REPEAL
The power to make a law with respect to the topics committed to Parliament or State Legislatures
carries with it a power to repeal a law on those topics. Subject to any constitutional restriction, the
general rule is the power of a legislative body to repeal a law is co-extensive with its power to
enact such law,19
EXPRESS REPEAL

As long as words used show an intention to repeal an Act or provision, use of any particular words
form of words is not necessary to bring about an express repeal. The usual form is to use the words
'is or are hereby repealed' and to mention the Acts sought to be repealed in the repealing section or
to catalogue them in a Schedule. The use of words 'shall cease to have effect', is also not
16 AIR 1997 SC 718

17AIR 1949 PC 90, 94.

18 Bindra N.S., supra note at page 671

19 Bindra N.S, supra note at page 671

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uncommon. When the object is to repeal only a portion of an Act words 'shall be omitted' are
normally used. The legislative practice in India shows that 'omission' of a provision is treated as
amendment which signifies deletion of that provision and is not different from repeal. 20 It has been
held that "there is no real distinction between repeal and an amendment." It has also been held that
"where a provision of an Act is omitted by an Act and the said Act simultaneously re-enacts a new
provision which substantially covers the field occupied by the repealed provision with certain
modification, in that event such re-enactment is regarded having force continuously and the
modification or changes are treated as amendment coming into force with effect from the date of
enforcement of re-enacted provision."21
IMPLIED REPEAL
(a) General

The presumption against a repeal by implication is based on a theory that the Legislature while
enacting a new law has complete knowledge of the existing laws on the same subject matter and if a
repealing provision is not enacted then, it gives out an intention that the existing laws do not get
repealed. This presumption is further strengthened in regard to other laws if there is a new law with
a repealing provision is enacted wherein the Acts which it intends to repeal are expressly
mentioned. This is based on the principle of expression unius est exclusion alterius. The burden to
show that there has been a repeal by implication of an existing statute in absence of an express
provision of appeal is on the party which is asserting the same. The presumption can however be
rebutted and a repeal can be inferred by necessary implication when the provisions of the new Act
are so inconsistent with the provisions of the existing Act, that they both cannot exist together.
However, if reading them both together and some application can be made of the words, a repeal
will then not be inferred.
Delhi Municipality v. Shivshanker22
20 Bhagat Ram Sharma v. Union of India. AIR 1988 SC 740 p. 746

21 Bindra N.S., supra note at page 675

22 AIR 1971 SC 815

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In this case, it was held that the Prevention of Food Adulteration Act, 1954 and Rules, 1955 were
not impliedly repealed by the Essential Commodities Act, 1955 for it was not possible to say that
they both could not exist together.
Thobum v. Suderland City Council (also called as Metric Martyrs case)23
Lord Justice Laws ruled that some constitutionally significant statutes held a higher status in UK
law and were not subject to the doctrine of implied repeal and would therefore require Parliament to
expressly repeal the Act.
The Supreme Court has indicated that the test applied for determining repugnancy under Article
254 of the Constitution, may be applied for solving a question of implied repeal and that it should
be seen:
(1) Whether there is a direct conflict between the two provisions ;
(2) Whether the Legislature intended to lay down an exhaustive code in respect of the subjectmatter replacing the earlier law;
(3) Whether the two laws occupy the same field.24
In State of M.P. v. Kedia Leather and Liquor Ltd.25
The Supreme Court held that S.133 of the Criminal Procedure Code, 1973 was not impliedly
repealed by the Water (Prevention and Control of Pollution) Act, 1974 by the reason of repugnancy.
If a prior law provides for both right and remedy and a later general law undoubtedly replaces the
right, the remedy of the prior law must also be taken to have been impliedly repealed26.

23 Principle Of Statutory Interpretation by J. G.P.Singh (eighth edition) p.522

24 Bindra N.S. supra note at p/ 680 citing Municipal Council, Palai v. T.J. Joseph, AIR
1963 SC 1561

25 2003 7 SCC 389

26 Bindra N.S. supra note at p 682

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(b) Prior particular law and later general law

As per the principles discussed above, a prior particular law is not impliedly repealed by a later
general law. The particular enactment is regarded as an exception or a qualification of the general
enactment since the particular enactment deals with only a particular phase of the general law and
therefore, a reconciliation of both the laws is possible. In Nicolle v. Nicolle27, Lord Philimore said
Where general words in a latter Act are capable of reasonable and
sensible application without extending them to subjects specially
dealt with by earlier legislation, that earlier and special legislation is
not to be held indirectly repealed, altered, or derogated from merely
by force of such general words, without any indication of a particular
intention to do so.
This principle has been accepted by the Supreme Court in Municipal Council, Palai v. T.J. Joseph28.
Mudholkar J. said that the courts should try to give effect to both the particular and general laws
together as far as possible.
(c) Prior General Law and Later Particular Law
If a particular law is enacted for which there already existed a prior general law, then the particular
Act may have the effect of partially repealing the general Act, or curtailing its operation or adding
conditions to its operation for the particular cases.
Municipal Board, Bareilly v. Bharat Oil Co.,29
the State Government had framed rules regulating the levy of octroi in general by all municipalities. Thereafter, rules were framed by the State Government for levy of octroi by the Bareilly

27 (1922) 1 SCC 284

28 AIR 1963 SC 1561

29 AIR 1990 SC548.

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municipality expressly providing that the new rules will apply in supersession of the existing rules.
It was held that there was deemed repeal of the earlier rules in respect of Bareilly municipality.30
Ratan Lal Adukia v. Union of India31
Under Section 80 of the Indian Railways Act, 1890, prior to its substitution by the Amendment Act,
1961, the choice of forum for filing suits for compensation for

loss, destruction, damage,

deterioration or non-delivery of goods etc. carried by the Railways was regulated by Section 20 of
the Code of Civil Procedure or Section 18 of the Presidency Small Cause Courts Act, 1882, as the
case may be. However, the new section, besides making specific reference to a certain class of suits,
to be dealt with under the section and identifying the Railways Administrations which were liable to
the claim, also specifically provided the places where such suits may be instituted.
It was held that thedoctrine of implied repeal is based on the postulate that the legislature which is
presumed to know the existing state of the law did not intend to create any confusion by retaining
conflicting provisions Courts in applying this doctrine, are supposed merely to give effect to the
legislative intent by examining the object and scope of the two enactments. But in a conceivable
case, the very existence of two provisions may by itself, lead to an inference of mutual
irreconcilability if the later set of provisions is by itself a complete code with respect to the same
matter. In such a case, the actual detailed comparison of the two sets of provisions may not be
necessary.
CONSEQUENCES OF REPEAL
General
Under

the common law rule the consequences of repeal of a statute are very drastic. Except as

to transactions past and closed, a statute after its repeal is as completely obliterated as if it had
never been enacted. The effect is to destroy all inchoate rights and all causes of action that may
have arisen under the repealed statute. Therefore, leaving aside the cases where proceedings
were commenced, prosecuted and brought to a finality before the repeal, no proceeding under

30 Gurpreet Singh Mandair, Repeal of Statutes available at

https://www.scribd.com/doc/93540615/Repeal-of-Statutes

31 AIR 1990 SC 104

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the repealed statute can be commenced or continued after the repeal.32 Another result of repeal
under the common law rule is to revive the law in force at the commencement of the repealed
statute. Thus if one statute is repealed by a second which in turn is repealed by a third, the effect
is to revive the first statute unless a contrary intention is indicated in the third statute. The
confusion resulting from all these consequences gave rise to the practice of inserting saving
clauses in repealing statutes, and later on, to obviate the necessity of inserting a saving clause in
each and every repealing statute a general provision was made in section 38(2) of the
Interpretation Act, 1889. Similar provision is made in India in section 6 of the Central General
Clauses Act, 1897 (Act X of 1897) as also in corresponding State legislations.33
Mahmadhusen Abdulrahim Kalota Shaikh v. Union of India34
The Supreme Court in this case upheld the validity of S. 2(3) of the Prevention o, 2-0f Terrorism
(Repeal) Act, 2004 which repealed the Prevention of Terrorism Act, 2002. The Court observed;
When Parliament has the power to repeal a law outright without any
savings and thereby put an end to all pending prosecutions and
proceedings forthwith (without any need to comply with section
321 of the Code), can it be said that it does not have the power to
make a provision in the Repealing Act for the pending proceeding to
continue, but those proceedings to come to an end, when a duly
constituted Review Committee with a sitting or retired Judge of the
High Court as Chairman, reviews the cases registered under the
repealed Act and reaches the opinion that there is no prima facie case
for proceeding against the accused ? Surely, the wider and larger
power includes the narrower and smaller power. It should be
remembered that continuation of a proceedings in respect of any

32 Keshavan v. State of Bombay, supra.

33 Bindra N.S., supra note at p. 695

34 (2009) 2 SCC 1 para 37

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offence under an Act, after the repeal of such Act, is itself as a result
of a deeming fiction. Natural consequence of repeal, as noticed
above, is complete obliteration including pending proceedings.
Continuation of a pending proceeding is possible only on account of
the deeming fiction created by the savings clause in the Repealing
Act which provides for continuation of the proceedings as if the
Principal Act had not been repealed. Therefore, any provision in
the Repealing Act for saving a pending proceeding, with any further
provision for termination of such pending proceedings, is a provision
relating to `winding up' matters connected with the Repealed Act. By
no stretch of imagination such a provision can be termed as
interference with judicial power, even assuming that such a provision
in a live unrepealed statute may be considered as interference with
judicial power. It is therefore unnecessary to examine whether section
2(3) of the Repealing Act is an encroachment of judicial power,
though such an examination was done with reference to the challenge
to section 60(4) to (7) of POTA.

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Section 635 of the General Clauses Act applies to all types of repeals. This section applies
irrespective of whether the repeal is implied or express. It also applies to repeal of a temporary
statute before its expiry but it has no application when such statute is not repealed but comes to an
end by expiry.

RE-ENACTMENT
The common law rule of revival has been abrogated by S.6 (a) and 7 of the General Clauses Act,
1897. Therefore, if Statute A repeals statute B and statute C repeals Statute B, then statute A is not
revived unless the statute C makes an express provision in regards to that. As regards revival of
enactments S.6(a) covers what is more emphatically declared by S. 7, but the latter is limited in
operation to enactments, whereas the former is wider in operation and will prevent revival of many
other matters, i.e. revival of a void contract.36
Under the English Common Law when a repealing enactment was repealed by another statute, the
repeal of the second Act revived the former Act. But this rule does not apply to repealing Acts
35 S. 6 Effect of Repeal.Where this Act, or any central Act or Regulation made
after the commencement of this Act, repeals any enactment hitherto made or
hereafter to be made, then unless a different intention appears, the repeal shall
notrevive anything not in force or existing at the time at which the repeal
takes effect;
b. affect the previous operation of any enactment so repealed or anything duly
done or suffered thereunder, or
c. affect any right, privilege, obligation or liability acquired, accrued or incurred
under any enactment so repealed; or
d. affect any penalty, forfeiture or punishment incurred in respect of any offence
committed against any enactment so repealed; or
e. affect any investigation, legal proceeding or remedy in respect of any such
right, privilege, obligation, liability, penalty, forfeiture or punishment as
aforesaid; and any such investigation, legal proceeding or remedy may be
instituted, or continued or enforced and any such penalty, forfeiture or
punishment may be imposed as if the repealing Act or Regulation had not been
passed.

36 Bindra N.S., supra note at p. 699

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passed since 1850, and now if an Act repealing a former Act is itself repealed, the last repeal does
not revive the Act before repealed unless words are added reviving it. The present rule is the result
of the statutory provisions introduced by the Interpretation Act of 1889, but though we are not
bound by the provisions of any English Statute, we can still apply the English Common Law if it
appears to be reasonable and proper. But it may be noted that even according to the Common Law
doctrine, the repeal of the repealing enactment would not revive the original Act if the second
repealing enactment manifests an intention to the contrary.37

CONCLUSION
From the above discussions, what I can conclude is that the judiciary has heavily relied on
principles formulated in foreign judgements to come up with principles which govern expiry, repeal
and revival of statutes. Also the judiciary tries to focus on the construction of the statute to
determines any questions regarding repeal, expiry and re-enactment. Ultimately, it all depends on
how the judiciary chooses to interpret the statutes.

BIBLIOGRAPHY
Bindra N.S., The Interpretation of Statutes and General Clauses Acts (Central and State)
with Phrases and Word
General Clauses Act, 1897
Scribd

37Ameerunnissa Begum v. Mahboob Begum, AIR 1955 SC 352, 356.

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