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INTERPRETATION OF STATUTES
Effect of Repeal of Temporary Statutes Srinivas Atreya 519 6 Semester th
th
28 February 2011
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INTRODUCTION: TYPES OF STATUTES
To understand the effect of expiry or repeal of statutes, it is first essential to understand
appreciate the types and effects of statutes. Statutes can be classified into various types bas
the subject matter they are dealing with, their scope and their general intent and purpose. Br the various types of statutes are;
RETROSPECTIVE OPERATION
It is well settled that the Union as well as the State Legislatures have plenary powe
legislation and can legislate prospectively as well as retrospectively A. Hajee Abdul Shuko 1
Co. vs. State of Madras at 1735. Such retrospective legislation may either be made by ex
words or by necessary intendment. It, therefore, depends on the wording of the statute, w
express words do not exist, whether by necessary intendment retrospectively should be inf and how far backwards.
STATUTES DEALING WITH SUBSTANTIVE RIGHTS
However, there is a well accepted principle of interpretation that every statute is prima prospective in its operation so far as substantive rights are concerned, the reason being
legislature could not have intended affecting vested rights or to impose new bu 2
retrospectively unless the words compel the court to give effect to it retrospectively . Howe
Signof up the to vote on this title statute is not considered retrospective merely because part requisites for its operati 3
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drawn from a time antecedent to its passing . Similarly, taking into account past events doe make the statute retrospective.
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4
not existing rights. Sometimes, in such a situation the word‖retroactive‖ is used instead o word ―retrospective‖.
STATUTES DEALING WITH PROCEDURE
However, just as a statute affecting or creating substantive rights is presumed to be prospec
a statute dealing with matters of procedure is presumed to be retrospective unless
construction of the statute does not admit of such a presumption. What is a matter of proc
and what is a matter of substance is again to be decided on the wordings of each statute an
consequences involved. Statute dealing with matters of procedure will apply to all ac
pending as well as future actions because no one has a vested right in any course of procedu 5
the case of CWT of CWT vs. Shravan Kumar Swarup holding Rule 1 BB of W.T Rules enacted w.e
4-79 as retrospective from A. Y. 1965-66 onwards as the Rule was procedural as re
valuation. However, there are certain aspects dealing with procedure which may give rise vested right and a statute dealing with these rights may not be construed as retrospective
operation unless it is expressly made retrospective e.g., though statute of limitation is a mat procedure, on expiry of the period of limitation, a vested right arises and amendment
period of limitation after the expiry of the said period in a given case will not revive the peri
limitation but if the earlier period has still not expired, the new provision will extend that pe
RIGHT OF APPEAL Sign up to vote on this title
Similarly, though Appeal is a procedural part of the law, is considered as a substantive a itUseful Not useful
vested right in a litigant and such a vested right cannot be presumed to have been taken aw
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vested right and cannot be effective retrospectively as held in Hussein in Hussein Kasarn Dada (India 8
vs. State of M. P , a right of Appeal pre-supposes existence of a court to which Appeal li
that court itself is abolished and no new forum is provided for the vested right of Appeal w 9
might have to be filed or which is pending, such right will perish.
FISCAL STATUTES
As regards fiscal legislation, it is generally presumed that the legislation is not to be constru retrospective unless it deals with procedure.
It is common knowledge that Income-tax Act is to be applied as in force on the first day o assessment year.
10
Any subsequent legislation enacted during the course of the assessment
will not be applicable for that assessment year or part thereof unless by express words
necessary implication it has been made applicable from the date the subsequent legislatio 11
been enacted.
Similarly, even a procedural provision which effects finality of tax assessment or reope
liability which is time barred, cannot be so construed as it is considered a vested right in 12
respect.
PENAL STATUTES
for ex Penal statutes which create offences or which has the effect of increasing penalties Sign up to vote on this title
offences can only be prospective by reason of constitutional prohibition regarding retrospec useful Useful Not
imposed by Article 20 of the Constitution. However, in the case of State (through CBI, Delh
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Constitutional prohibition would not apply to penalties penalties levied under tax laws, as proceedings in that behalf though considered quasi-criminal, do not constitute offences only are hit by Article 20.
REMEDIAL STATUTES
However, a slightly different view has been taken with regard to statutes conferring prospe benefits on antecedent facts. Such statutes are called remedial statutes. The Th e view has been
that a prospective benefit under a statutory provision which is in certain cases to be measur
or depends on antecedent facts does not necessarily make the provision retrospective. Th
statute can be prospective even when part of the requisite of its action of operation is drawn
the time antecedent to its passing. Similar is the position with regard to Validating Acts w cure the defect in the previous legislation which resulted in the Court holding it invalid.‖
legislation is necessarily made retrospective, curing the defect and saving consequenc 14
illegality.
However, without curing the defect or lacuna in the law, validating Act c
merely render judicial verdict invalid as it would amount to exercise of judicial power b 15
legislature,
NEW REMEDIES FOR EXISTING RIGHTS
Similarly, statutes providing new remedies for enforcement of existing rights will app
future as well as past causes of action, the reason being that such statutes since theydo not a Sign up to vote on this title
16
the existing rights are classified as procedural.
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DECLARATORY STATUTES
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the statute retrospective and in spite of these words the intended declaration or removal of d
may only be operative from the date the said statute is enacted and not for any earlier pe
There are decisions of the Supreme Court on both the sides of this view and ultimately it dep on the nature of phraseology, the intention of the legislature/the judicial error sought
removed etc. Sometimes, even stronger words have been used such as ―shall be deemed al
to have been meant‖ or ―shall be deemed never to have included‖. These words are very str
indicative of retrospectivity. Following cases show division of Judicial opinion at the lev Supreme Court also: — 17
1. In CIT vs. ISR Patton , it was held that Explanation to Section 9 (1) (ii) of Income-ta
added by Finance Act 1983 was held effective only from 1-4-1979 and was not applicab
A.Ys. 1973-74 and 1976-77. 1976-77. Explanation used words ―for the removal of doubts, it is h declared‖. Even then it was not considered considered to effect prior to 1-4-1979. 18
2. In CIT vs. Patel Bros , Explanation 2 was added by Finance Act 1983 def
―entertainment expenditure‖ w.e.f. 1-4-1976 -4-1976 words used ―for the removal of doubts, it is h declared. It was held to be not applicable for assessment years prior to 1976-77. 19
3. In K. In K. M. Sharma vs. ITO , It was held that lifting of bar of limitation by Direct Tax
amendment Act, 1987 w.e.f 1-4-1989 for reassessment on basis of order passed by Court i
other proceeding under any other law did not apply to earlier A. Ys which were already b Sign up to vote on this title
on 1-4-1989. 4. In CIT vs. Kerala Electric Lamp Works, Works,
20
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Explanation 5 to s. 32 was added by Finance
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21
(5) On the other hand, in Allied in Allied Motors (Pvt) Ltd. L td. vs. CIT proviso to s. 43B added from
1988 was given retrospective effect from the date S. 43B was introduced; i.e, 1-4-1984 o ground that proviso was to remedy unintended consequences and supply obvious omission. 22
(6) Similarly in CIT vs. Podar Cement Pvt. Ltd it was held that amendments in s. 27 (iii),
and (iiib) defining ―owner of house property‖ introduced by Finance Act, 1987 was declar and clarificatory in nature and was consequentl y retrospective.
FINALITY OR ORDERS
Similarly, an order which is final on the date on which it is made creates a vested right
subsequent change in the law giving rise to new right of Appeal or Revision is presumed n affect the finality of the orders already made.
23
However, such a right to finality can only ar
the order is made. If pending the proceedings, further right of Appeal or Revision is confe 24
such rights will be available as the order has not been made.
However, generally a s
affecting rights in existence is not readily construed to affect the adjudication of pen
proceedings. Unless, therefore, there is a specific provision dealing with pending proceedin the date the statute comes into operation the pending proceedings will continue as before.
EXPIRY OF THE STATUTE Sign up to vote on this title
Before we touch upon the subject of effect of expiry of temporary a distinction mu Useful statutes, Not useful
made between the Perpetual Statutes and Temporary Statutes. A statute is either perpetu
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PERPETUAL STATUTE
A Statute is perpetual when no time is fixed for its duration. Such a statute remains in force
it is repealed expressly or impliedly. However, there cannot be a permanent statute which c
be touched or amended by a subsequent legislature. It is only in this sense that the stat
called a perpetual statute. A cessation of transitional legislative power has also no effect o continuance of a perpetual Act enacted during the continuance of that power.
TEMPORARY STATUTE
However, a temporary statute is one where the duration is specified. Such a statute expir
the expiry of specified time unless it is earlier repealed. However, a temporary statute m
extended from time to time by fresh statute or by a power conferred under the original st
However, once a temporary statute has expired, it cannot be made effective by merely ame 25
the same. It has to be re-enacted.
When the life of a temporary statue is merely extend
cannot be said that any new law has been enacted; but if the extension is accompanies b
substantial amendment, it would not be a case of mere extension. The only apt mann
reviving the expired statute is by re-enacting a statute in similar terms or by enacting a s expressly saying that the expired act is herewith he rewith revived. EFFECT OF EXPIRY OF TEMPORARY STATUTES
Sign to up to vote onand this would title Section 6 of the General Clauses Act, 1897 applies only repeal not hav
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application when a temporary statute expires. The effect of such expiry will, therefore, de
on the construction of that statute alone. In the case of Steavenson of Steavenson v. Oliver , the dicta of Ju
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RELEVANT SECTIONS AND PROVISIONS OF GENERAL CLAUSES ACT
Section 5: Coming into operation of Enactments
(1) Where any Central Act is not expressed to come into operation on a particular day, th shall come into operation on the day on which it receives the assent
(a) In the case of a Central Act made before commencement of the Constitution, o Governor General, and (b) In the case of an Act of Parliament, of the President.
(2) Unless the contrary is expressed a Central Act or Regulation shall be construed as co
into operation immediately on the expiration of the day preceding its commencemen Section 6: Effect of Repeal
Where this Act, or any Central Act or Regulation made after the commencement o
Act, repeals any enactment hitherto made, or hereafter to be made, then, unless a dif intention appears, the repeal shall not — not —
(a) Revive anything not in force or existing at the time at which the repeal rep eal takes effe
(b) Affect the previous operation of any enactment so repealed or anything duly do suffered there under or
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(c) Affect any right, privilege, obligation or liability acquired, accrued or incurred u
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Section 7: Revival of repealed enactments
(1) In any Central Act or Regulation made after the commencement of this Act, it sh
necessary, for the purpose of reviving either wholly or partially any enactment who partially repealed, expressly to state that purpose. (2) This section applies also to all Central Acts made after the third day of January, and to all Regulations made on or after the fourteenth day of January, 1887.
Section 24 — Continuation of orders etc. issued under enactments repealed and re-enac
Where any Central Act or Regulation is, after the commencement of this Act, repeale
re-enacted with or without modification, then unless it is otherwise expressly provided,
appointment, notification, order, scheme, rule, form or bye-law made or issued unde
repealed Act or Regulation, shall so far as it is not inconsistent with the provision
enacted, continue in force, and be deemed to have been made or issued under the prov so re -enacted, unless and until it is superseded by any appointment, notification, scheme, rule form or bye-law made or issued issued under the provisions so re- enacted and
any Central Act or Regulation which, by a notification under section 5 or 5-A o Scheduled District Act, 1874 (XIV of 1974) or any like law, has been extended to any
area, has by a subsequent notification, been withdrawn from and re-extended to such a any part thereof, the provisions of such Act or Regulation shall be deemed to have Sign up to vote on this title
repealed and re-enacted in such area or part within the Useful of Not section. useful meaning this Broadly there are four effects of expiry of a temporary statute. They are;
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depends as to whether a saving provision similar in effect to section 6 of the General Cl
Act, 1897 has been enacted in the temporary Act. If there is no such saving provision
pending proceedings will terminate on the expiry of the statute. A person can neith prosecuted nor convicted for an offence under und er a temporary Act after its expiration in the of a saving provision.
On the same principle, when a temporary Act expires the normal rule is that any appointm
notification order, scheme, rules made under the Act will also come to an end with the exp
the Act and will not be continued even if the provision of the expired Act are re-enacted
reason being that section 24 of the General Clauses Act, 1897 which only applies to repeal does not apply to such a situation.
However, it may be noted that even in absence of saving provision like section 6 of the Ge
Clauses Act, 1897, a temporary statute is not dead for all purposes and rights and obliga
resulting from the provisions of the temporary Act may endure even after its expiry e.g., a p
sentenced under the temporary Act cannot be released before he serves out his sentence ev 26
temporary Act expires before the expiry of the sentence.
When a temporary statute affe
repeal of an existing statute, the question arises whether the repealed statute revives on the e
of the repealing temporary statute. Sections 6 and 7 of the General Clauses Act, 1897 do not
a clear answer to this situation and ultimately the courts have observed that the answer 27
depend upon the construction of the repealing statute.
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It may be incidentally mentioned that power to repeal is co-extensive with the power to
such a law. If the legislature has no power to enact a law on a particular subject, it has als
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Minerals (Validation) Act, 1992 which included the said acts in a Schedule.Section 2 of th
provides; provides; ―The laws specified in the schedule to this act shall be, and shall be deemed alwa
have been, as valid as if the provisions contained therein relating to cess or other taxe
minerals had been enacted by parliament and such provisions shall be deemed to rema th
forece upto 4 day of April 1991. The question before the Supreme Court in Distric 29
Officed v. Tata Iron and Steel Co was whether because of the Validation Act the states th
entitled to retain only the cess and taxes already collected before 4 April 1991 or whether th
were also cntitled to collect cess and taxes due up to 4 April 1991 but not collected till that
In holding that the Validation act did no enable the states to collect the cess and taxes ti
April 1991, one of the reasons given by the court was that the effect of section 2 was th th
acts invalidated became temporary statues expiring on 4 April 1991 and as there was no sa
clause in the validation act an as section 6 of the general clauses act had no application to e
of a temporary statues, there could not be recovery and collection of cess and taxes which th
have become due but were not collected till 4 April 1991.
In the constitution of India, article 352 of the constitution provides for proclamatio
emergency in case of war, external aggression or armed rebellion. Article 358 susp
fundamental rights under article 19 and article 359 enables the president to suspend enforce
of fundamental rights except articles 20 and 21during period of emergency. The result is t
law made during the emergency even if violative of any fundamental right except article 2
Sign upto tohave vote on this title 21 is not open to challenge on that ground. But the laws ‗cease effect – except as res – except
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things done or omitted to be during their operation after the proclamation of emergen
withdrawn. During the period of emergency, when the fundamental right under article 22
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NOTIFICATIONS, ORDERS, RULES MADE UNDER TEMPORARY STATU
When a temporary stature expires, the normal rule is that any appointment, notifica
order, scheme, rule, form, bye-law made or issued under the Act will also come to an
with the expiry of the act and will not be continue even if the provisions of the expire
are re- enacted. The reason behind this is that section 24 of the General Clauses Act, 1
does not apply to such a situation. For instance, a person‘s detention under a temp
statute relating to preventive detention will automatically come to an end on the expiry o 30
statue
EXPIRY DOES NOT MAKE THE STATUTE DEAD FOR ALL PURPOSES
A temporary statute, even in the absence of a saving provision like section 6 of the Gene
Clauses Act, is not dead for all purposes As already stated the question is essentially one
construction of the Act. The nature of the right and obligation resulting from the provisio
of the temporary Act and their character, ma y have to be regarded in determining d etermining wheth said right or obligation is enduring or not. Thu s, a person who has seen prosecuted and
sentenced during the continuance of a temporary Act for violating its provisions cannot b
released before he serves out his sentence, ev en if the temporary act expires before the e of full period of the sentence.
REPEAL BY A TEMPORARY STATUTE Sign up to vote on this title
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When a temporary statute effects a repeal of an existing statute, a question arises whethe repealed statute revives on the expiry exp iry of the repealing statute. Section 11(1) and section
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The power to repeal is consistent with the power to enact and is not controlled by pre legislation. Repeal may be express or implied.
EXPRESS REPEAL
Express repeal does not require any particular form or words. However, the usual phraseolo
―is or are hereby repealed. Similarly, the words ―shall cease to have effect‖ are also used as
the words ―shall be omitted‖. There can be a simple repeal or an amendment repealing the s
and re-enacting part of it. It has the same effect. However sometimes when the legislatu
repealing many statutes by a single Act it also uses the words ―all provisions inconsistent
this Act‖ are hereby repealed. repealed. However, such a formula leaves the debate open as to wh inconsistent which is repealed.
IMPLIED REPEAL
Implied repeal arises if it is necessarily to be read in view of contrary provision in the ame
Act. If the continuance of the existing legislation is inconsistent with the new provisions
implied repeal may be presumed though the burden to show that there has been implied r
lies on the party assenting the same. If the two statutes; i.e., existing statute and the new st
are so inconsistent that the two cannot stand together implied repeal has to be accepted. But
two legislations may be read together and some application may be made of the words i
Act earlier Act, repeal will not be inferred. It may be noted that S. 6 of the General Clauses Sign up to vote on this title
equally applies to implied repeal.
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Another principle of implied repeal arises for consideration when there is a prior law
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CONSEQUENCE OF REPEAL OF STATUTE
A general provision has been made in section 6 of the General Clauses Act, 1897 and al
corresponding State legislations. The said section operates unless there is something contra the repealing statute. Section 6 applies to all types of repeals whether express or implied,
or partial or whether a repeal simpliciter or a repeal accompanied by fresh legislation. It
applies when a temporary statute is repealed before its expiry but it has no application when
a statute is not repealed but comes to an end by expiry. It may however be noted that repea 31
rule by another rule will not attract section 6 of the General Clauses Act, 1897.
In these two cases it has also been held that s. 6 applies only to ―repeals‖ and not to ―omissi
This view may require reconsideration. However, these decisions have been followed in Ge
Finance Co. vs. Asst. CIT AIR (2002) SC 3126, taking the view that on omission of s. 276 D
I.T. Act w.e.f. 1-4-1989, prosecution could not be continued nor punishment imposed, a was not applicable to ―omissions‖ .
In absence, therefore, of operation of section 6 proceedings initiated under the omitted
cannot continue unless the new rule contains a saving clause to that effect. Earlier, b
enactment of section 6(a) and 7 the General Clauses Act, 1897 the common law rule w
revival meaning thereby that if one Act is repealed by another Act and the repealing A
repealed by a third Act, the first Act would revive. This is not the position now becau
up tounless vote on the this title sections 6(a) and 7 of the General Clauses Act, 1897.Sign Thus, third Act mak
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express provision to revive the first Act, there is no rule of revival now applicable. It may al
noted that clauses (c) to (e) of section 6 of the General Clauses Act, 1897 prevents obliterati
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Effect of Repeal of Temporary Statutes
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Interpretation of Statutes General Clauses Act
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expectation. Therefore, inchoate acts done under an Act before maturing into a right or lia
cannot survive the repeal of the Act followed by fresh legislation containing the saving clau
preserve ―nothing done etc.‖ under the repealed Act so as to continue under the correspo provisions of the new Act in so far as they are not inconsistent with the provisions of Act.
CONSEQUENCES OF REPEAL ON SUBORDINATE LEGISLATION
As a consequence of repeal of the statute, subordinate legislation made under the statute w
cease to have effect after the repeal of the statute. This result can be avoided by inserti
saving clause providing to the contrary. However, when a statute is repealed and re-ena
section 24 of the General Clauses Act, 1897 provides for continuance of any appointm
notification, order, scheme, rule, form or bye-law made or issued under the repealed statute far as it is not inconsistent with the provisions re-enacted.
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Effect of Repeal of Temporary Statutes
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Interpretation of Statutes
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General Clauses Act
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Repeal of Statutes
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References th
GP Singh, Principles of Statutory Interpretation, 12 Edn, 2010
Avatar Singh, Interpretation of Statutes, 10 Edn, 2011
96 Law Commission Report on Repeal of Certain Obsolete Central Acts
MANUPATRA
WESTLAW
th
th
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