UNIT- VI

EXPIRY & REPEAL

OF STATUTES
 SYNOPSIS
• Ways to terminate a • Express Repeal
statute: Expiry & • Implied Repeal
Repeal • Consequences of
• Types of Statutes: Repeal
Temporary and • Subordinate
Perpetual Legislation under
• Effect of expiry of Repealed statute
temporary statutes • Quasi Repeal by
• Difference between Desuetude
expiry and repeal
~ A Prologue ~
 REPEAL: MEANING

Revoke
Abrogate

Cancel A statute may

repeal any Act in
whole or in part.

A statute is repealed expressly or

impliedly
 KINDS OF REPEAL
EXPRESS REPEAL IMPLIED REPEAL

• A subsequent statute • By enacting matter

stating that certain contrary to and
prior statutory inconsistent with the
provisions are hereby prior legislation.
repealed.
 So…what happens on
repeal…???

…to all the ‘acts done’ under

the repealed Act…???
 General Clauses Act, 1897
Section 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 not
(a) revive anything not in force or existing at the time at
which the repeal takes effect; or
(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repealed or anything duly done or suffered thereunder;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so repealed; or
 ….Section 6
(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so repealed; or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, continued or enforced, and any such penalty,
forfeiture or punishment may be imposed as if the
repealing Act or Regulation had not been passed.
Hence, a saving clause
can save the acts done
under the repealed Act.

***
1. PERPETUAL &
TEMPORARY
STATUTES
 Temporary Statute

Perpetual Statut
Duration is only for a specified period

No date is fixed
Expires on the expiry of the specified period

Can come to an end

on repeal
 SOME OTHER FEATURES OF
TEMPORARY STATUTES
May be repealed before its expiry.

Duration may be extended by a fresh statute or by exercise of power under the original statute.

After it expires it cannot be made effective by merely amending the same

For reviving expired statute it must be re-enacted

Also known as the SUNSET Clause
 THE TERRORIST AND DISRUPTIVE
ACTIVITIES (PREVENTION) ACT, 1987
An Act to make special provisions for the prevention of, and for coping with, terrorist and
disruptive activities and for matters connected therewith or incidental thereto.
Be it enacted by Parliament in the Thirty-eighth year of the Republic of India as follows:-

CHAPTER I
PRELIMINARY

1. Short title, extent, application, commencement, duration and savings. -

(1) This Act may be called the Terrorist and Disruptive Activities (Prevention) Act, 1987.
(2) It extends to the whole of India, and it applies also, -
a. to citizens of India outside India;
b. to persons in the service of the Government, wherever they may be; and
c. to persons on ships and aircraft registered in India, wherever they may be.
(3) Sections 5, 15, 21 and 22 shall come into force at once and the remaining provisions of this
Act shall be deemed to have come into force on the 24th day of May, 1987.
(4) It shall remain in force for a period of [eight years] from the 24th day of May, 1987, but its
expiry under the operation of this sub-section shall not affect….
2. Effect of Expiry of Temporary
Statutes
Stevenson v. Oliver
(1841) 151 ER 1024
Effect of expiry depends
Sec.6, GCA
upon not
the applicable
construction of the Act itself
 (a) Legal Proceedings under
Expired Statutes
Prosecution
terminates on
EXPIRY

Proceedings taken against

a person under a
temporary statute ipso
facto terminate as soon as
the statute expires.

NORMAL
Saving clause RULE
Depends upon
like S.6 may construction of
be inserted the Act
 District Mining Officer  v.
Tata Iron and Steel Co. AIR 2001 SC 3134
●
There were certain State Acts that
imposed cess or other taxes on
Background minerals which were declared void in
different cases by the Supreme Court.

The ●
Parliament enacted the Cess and
other Taxes on Minerals (Validation)
Validation Act, 1992 which included the said
Act State Acts in a Schedule.
 Section 2 of the Validation Act
• 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
• 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 up to 4th April 1991
but not collected till that date.
 Finding of the Court

1.) The Validation Act did not enable the States to collect
●

the cess and taxes not collected till 4th April 1991

2.) S.6 GCA not applicable.

●

●
No Saving Clause provided in the Validation Act

3.) No recovery and collection of cess which may have

●

become due but were not collected till 4th April, 1991.
 So, basically on the expiry
of temporary statutes, the
effect of the ‘acts done’
during the subsistence of the
statute can be determined
on the construction of the
saving clause in the Act per
se.
State of U.P. v. Jagmander
Das
AIR 1954 SC 683
 Government of India Act, 1935

THE DEFENCE OF INDIA ACT, 1939

• The Act shall remain in force during the

continuance of the war and for a period of six
months thereafter.
• The war came to an end on 1st April, 1946 and the
Act was to expire on 30th Sept, 1946.
The Defence of India Act, 1939

DoI Act, 1939

Amended on
And a Saving
30/3/1946 by an
Ordinance Clause was added
Repeal of Government of India Act

GOI Act, ●
By Art. 395 of the
Constitution.
1935 was ●

●
No saving clause
Sec.6, GCA not
repealed applicable to this repeal
 395. Repeals. The Indian Independence
Act, 1947 , and the Government of India
Act, 1935 , together with all enactments
amending or supplementing the latter
Act, but not including the Abolition of
Privy Council Jurisdiction Act, 1949 , are
hereby repealed FIRST SCHEDULE
Articles 1 and 4 I THE STATES Name
Territories
 Chronology of Legislative
Developments
• Govt. of India Act: 1935
• Defence of India Act: 1939
• 30th March 1946 : DoI amended & Saving clause
added
• Ist April, 1946 war ended
• 1948: The Ordinance in 1946 was repealed in 1948
• Repeal was subject to saving clause preserving the
effect
• GoI Act repealed by Art.395 + no saving clause
provided + no Sec. 6 GCA was applicable.
 State of U.P. v. Jagmander Das
AIR 1954 SC 683
The DoI Act, framed
In the years 1943-45
the Non-Ferrous
provisions of the 1942
Metals Control Order,
order were infringed
1942

Proceedings were On16th Jan 1950,

pending when the
Constitution was prosecution
brought into force commenced

And repealed The question

the GOI Act that arose:

Whether the prosecution

could be continued or
whether it automatically
terminated.
 The Court held
• Ordinance (1946) • Act of 1948** had
added Saving Clause saving clause.
to DOI.
• But of no use as…
• Ordinance Repealed
by Act of 1948**. • Nothing was done in
this period.
• Saving Clause of 1946
is ineffective.
 Finding of the Court
After 26-1-1950, there existed no saving

1.)
●

provision to continue the prosecution of

an offender for an offence u/DoI Act.

The Supreme Court applied the

2.)
●

normal rule that the offender could not

be prosecuted after expiry of the Act.
***
 R v. Wicks (1946) 2 All ER 529
Emergency Defence Gen.
Powers (Defense) Regulations
Act, 1939 1939

The Act was extended Wicks convicted

& continued to be in
force until Aug.24, under the
1945 Regulations

The violations
took place in
Trial began
1943-44 in May 1946

By then the Act

had expired.
 Two crucial provisions

Sec Subject to the provisions of this section,

●

this Act shall continue in force until the

expiration of the period of six months

11(1) beginning with the 24th day of Aug. 1945,

and shall then expire.

Sec ●
The expiry of the Act shall not
affect the operation thereof as
respects things previously done or
11(3) omitted to be done.
 The Main Question
• Whether these words in Sec
11(3) authorized the prosecution
and conviction of the offender
notwithstanding the expiration
of this Act.
The Court Observed
 Another Illustration
• Article 352: Proclamation of emergency in case
of war or external aggression or armed
rebellion.
• Article 358 suspends the fundamental rights
u/Article 19; and
• Article 359 enables the President to suspend
enforcement of other fundamental rights
except Art. 20 and 21 during the period of
emergency.
 Article 358 (Prior to the 44th
Amendment)
• While a Proclamation of Emergency is in operation,
nothing in Article 19 shall restrict the power of the State
as defined in Part III to make any law or to take any
executive action which the State would, but for the
provisions contained in that Part be competent to make
or to take, but any law so made shall, to the extent of the
incompetency, cease to have effect as soon as the
Proclamation ceases to operate, except as respects things
done or omitted to be done before the law so ceases to
have effect.
Attorney General for India v.
Amratlal Prajivan Das 1994 AIR
2179
Conservation of Foreign Smugglers and Foreign
Exchange and Prevention of Exchange Manipulators
Smuggling Act (COFEPOSA), (Forfeiture of Property)
1974 Act, 1976 (SAFEMA )
 The Facts of the Case
COFEPOS June 1975, President
proclamation of
A, 1974 emergency

COFEPOSA was During this

amended w.e.f. period, Art.22
1/07/1975, was suspended

Introduced S 12-A This section shall

special provision for
dealing with
only have effect
emergency. during emergency

In 1976, SAFEMA
This section enabled
was enacted, during
detention in
the continuation of
emergency violation of Art.22
SAFEMA Sec. 1 The provisions of this Act shall apply only
to the person specified in sub-section (2).

(2) The person referred to in sub-section (1) are the following

namely:- (a) Every person-
1. Who has been convicted under the Sea Customer Act, 1878, or
the Customs Act, 1962, of an offence in relation to goods of a
value exceeding one lakh of rupees; or
2. Who has been convicted under the Foreign Exchange
Regulation Act, 1947, or the Foreign Exchange Regulation
Act, 1973, of an offence, the amount or value involved in
which exceeds one lakh or rupees; or
3. Who having been convicted under the Sea Customs Act, 1878,
or the Customs Act, 1962, has been convicted subsequently
under either of those Acts; or
 SAFEMA Sec.1 contd…
4. Who having been convicted under the Foreign Exchange
Regulation Act, 1947, or the Foreign Exchange Regulation
Act, 1973, has been convicted subsequently under either of
those Acts;
5. Every person in respect of whom an order of detention has
been made under the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974:
Provided that- 2. Such order of detention, being an order to
which the provisions of section 9 of the said Act apply, has not
been revoked before the expiry of the time for, or on the basis
of the review under sub-section (3) of section 9, or on the
report of the Advisory Board under section8, read with sub-
section (2) of section 9 of the said Act;…
 The story of the accused
The accused detained u/S-12-A of COFEPOSA

He was not supplied with any ground- had no remedy

Emergency revoked in 1977 & the detenus were released

Main Aspects of SAFEMA, 1976
 The transition & Connection

S.12-A Detention
But such orders are
order passed
ended with u/s12-A
made the foundation
u/S.2 SAFEMA
emergency withdrawn
The Action to be taken under
SAFEMA
Foundatio
n of Action
Connecting under
Link SAFEMA

‘Detention
orders’
under
COFEPOS
A
 The Dispute in this Case

In the ●
SAFEMA was being invoked against the
accused because of the orders of detention
present made against them u/COFEPOSA during
the period of emergency.
case

Contention The detention orders under S-12A

●

of COFEPOSA were void being

of the violative of Art. 22 and could not be
Respondent relied upon for SAFEMA.
 The Finding of the Court

●
The ground that the detention orders

HELD: u/s 12A COFEPOSA were ‘things done’

under that section and could not be
treated to be void after expiry of S.12A.

REAS ●
The saving clause in Article 358 ‘as
respects things done or omitted to be
done’ during the period section 12A
ON was in operation.
 Therefore, it can be said
that expiry does not make
the statute dead for all
purposes
 A temporary statute
even in the absence
of S.6 is not dead
for all purposes

The nature &

character of the
rights & obligations
have to be regarded

The
question is
one of
constructio
n
To determine
whether the said
right or obligation
is enduring or not
 State of Orissa v. Bhupendra
Kumar
AIR 1962 SC 945
Cuttack
Held invalid by
Municipality
the High Court
elections

Due to defective
electoral rolls

The Governor in exercise of his

promulgated an powers conferred
Ordinance u/Art.213 (1)

Thereby validating
 Sec. 3 of the Ordinance read:
• Sec. 3. (1) Notwithstanding the Order of any Court to
the contrary or any provision in the Act or the rules
there under: (a) the electoral rolls of the Cuttack
Municipality shall be, and shall always be deemed to have
been validly prepared and published; and (b) the said
electoral rolls shall be deemed to have come in force on
the date of publication and shall continue to be in force
until they are revised in accordance with the rules made
in this behalf under the Act.
The Ordinance lapsed on April 1,
1959.
The main ●
The invalidity of the election, which was
cured by the Ordinance, revived on its
contention expiry.

The Rights ●
The rights must be held to endure and last
created were not even after the expiry of the Ordinance.
Brittle

Decision of the ●
The life of the newly created Municipality would
not come to an end with the lapse of Ordinance.
Supreme Court ●
The elections are deemed to have been validated.
 Repeal by a temporary statute
• When a temporary statute effects a repeal of
an existing statute: whether the repealed
statute revives on the expiry of a repealing Act.

As per S.6 such

revival does not happen Also depends
on the construction
of the statute
Intention of the Temporary Act
has to be seen
Intention has to be seen:
Whether intended
temporary eclipse or
permanent repeal

A temporary
Ordinance can lead
to permanent repeal

No inflexible
rule could be
laid down

***
3. REPEAL
 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 a law and a Legislature
which has no power to enact a law on a
particular subject-matter has also no
power to repeal the same.”
Power to repeal implies power to repeal by
‘implication’.

Act says that its provisions shall apply unless ‘expressly

excluded’ by any special law

Does not mean that it Repeal by necessary

cannot be impliedly implication will be equally
repealed effective.
 An Act can be repealed by

An enactment
A later “distinct and “inconsistent and
repealing enactment” irreconcilable
therewith”.
 Therefore…

Also means power to

A power to amend i.e. by making
amend or repeal by
or repeal implication inconsistent laws
 POWER TO REPEAL CANNOT BE
DELEGATED
• A repeal, express or implied
cannot be brought about by
subordinate legislation.
• A power to repeal cannot be
delegated either by Union
Parliament or State Legislatures.
The Doctrine of Implied Repeal
has limited Application

Limited to Ordinary Statutes

This position is judicially recognized

 4. EXPRESS REPEAL
‘shall
cease to
have
effect’

‘shall be
omitted’

When repealing ‘is or are

a portion of a hereby
statute
repealed’
Some other formulae of express
repeal
●
‘All provisions inconsistent
1.) with this Act’ are hereby
repealed.

When the latter Act provides that a particular

●

2.) earlier Act ‘shall to the extent necessary to give

effect to the provisions of this Act be deemed to
have been repealed or modified.’
EXPRESS REPEAL: Legislative Practice in
India

‘Omission’ ‘Amendment’ ‘Repeal’

Signifies deletion which is not different from abrogation

 EXPRESS REPEAL
• ‘Substitution’= Repeal + Fresh Enactment.

• If the new provision is invalidated on the

ground of want of competence then it will
invalidate the repeal.

• If fresh enactment then repeal.

 Indian Express Newspapers v.
Union of India (1985) 1 SCC 641

Category 1

Where there was a want of Invalidity of new provision =

competence in enacting new law Invalidity of repeal
 Shambhu Dayal v. State of U.P.
AIR 1986 SC 515

• The appellant was charged and convicted

for an offence under the Food
Adulteration Act (PFAA).

• The offence took place on 1-11-1966 and

the Food Inspector took samples and sent
it to Public Analyst for examination.
Three contentions raised by
Appellant
●
PFAA came into force in 1954 u/which

1.) the power to appoint the Public Analyst

and Food Inspector rested with the State
Government only.

●
By an amendment to the Act in 1964 it

2.) provided that the Cen. Govt. or the State

Govt. may appoint a Public Analyst and
a Food Inspector.
 Three contentions raised by Appellant

The State Government

●

by notification dated
15/04/1968, appointed
3.) Food Inspectors with
retrospective effect
from 1/03/1965.
 Therefore…
• When the offence took place on 1st Nov.
1966 neither the Food Inspector nor the
Public Analyst was empowered to function
as Food Inspector or Public Analyst as the
notification was made very much later on
15/04/1968.
 Chronology of developments
• Prevention of Food Adulteration Act, 1954.
• Amendment in 1964.
• Offence took place on 1/11/1966.
• Food Analyst appointed by the State Govt.
on 15/04/1968 with retrospective effect from
1/03/1965
 The Relevant Provisions of the
Acts
Food Adulteration Act, 1954 Food Adulteration Act, 1964
• Sec.8: Public Analysts. – • Sec.8: Public Analysts. –
The State Govt. may by The Central Govt. or the
notification in the Official State Govt. may by
Gazette, appoint such notification in the Official
persons as it thinks fit, and Gazette, appoint such
possessing such persons as it thinks fit,
qualifications as may be having the prescribed
prescribed to be Public qualifications to be Public
Analyst… Analyst…
 The Relevant Provisions of the
Acts
Food Adulteration Act, 1954 Food Adulteration Act, 1964
• Sec.9 Food Inspectors.- • Sec.9 Food Inspectors.- (1)
(1) Subject to the provisions of The Central Govt. or the State
Govt. may, by notification in
Sec.14 the State Govt. may,
the Official Gazette, appoint
by notification in the
such persons as it thinks fit,
Official Gazette, appoint having the prescribed
persons in such number as qualifications’ to be Food
it thinks fit, having the Inspectors for such local areas
prescribed qualifications’ to as may be assigned to them by
be Food Inspectors for the the Central Govt. or the State
purposes of this Act… Govt., as the case may be:
 Observations of the Court
The new For the effect of the
amendment the
sections do not language has to be
repeal the old seen

The amending
provisions should be
read as a part of the
original statute

Both amended & un- The amending

amended to be sections merely ‘add
applied and read to’ not ‘repeal’ the
together existing provisions

The appointments
 Some formulae blur the
distinction between express
and implied repeal
 Formulae like….

1.) ‘all provisions inconsistent with this

●

Act are hereby repealed’

[…] provisions of an earlier Act ‘shall to the extent

2.)
●

necessary to give effect to the provisions of this Act be

deemed to have been repealed or modified.’

3.) […] repeal any law ‘corresponding to

●

any of the Acts or Ordinance extended.’

 The Supreme Court has noted….
• “where the Act repealed provides substantially
for all matters contained in the Act effecting
the repeal there is correspondence between the
two Acts; and the earlier Act would thus stand
repealed. It is not necessary that there should
be complete identity between the repealing Act
and the Act repealed in every respect.”
Abdul Kadir v. State of Kerala
AIR 1962 SC 922
 Therefore….

Total correspondence between Dealing with the same

the repealing & repealed Act subject matter Repeal

Dealing partially in
Partial Correspondence some sections Partial Repeal

Acts are of substantially

No correspondence differing scope No repeal