NATIONAL LAW UNIVERSITY ODISHA

(Towards the fulfilment of assignment for Interpretation of Statutes)

EXPRESS REPEAL AND IMPLIED REPEAL IN INDIAN LAW

SUBMITTED BY:

Anushna Satapathy (16/BA/023)

Anamika (16/BBA/005)

Shreyash Sharma (16/BBA/044)

SUBMITTED TO:

DR. ABHIK MAJUMDAR

(Asstt. Professor of Law)

MR. SOUBHAGYA SUNDAR NANDA

(Research Associate and Teaching Assistant)

 Express Repeal and Implied Repeal In Indian Law

TABLE OF CONTENTS

INDIAN LEGAL SYSTEM AND REPEAL OF LAWS ............................................................ 3

REPEAL BY A TEMPORARY STATUTE................................................................................ 6

IMPACT OF EXPRESS AND IMPLIED REPEAL IN INDIA ................................................. 8

REVIVAL OF REPEALED ENACTMENTS ........................................................................ 9

SAVING OF RIGHTS ............................................................................................................... 9

HISTORY OF PRESUMPTION AGAINST REPEAL BY IMPLICATION........................ 10

17TH CENTURY TO 18TH CENTURY............................................................................... 10

19TH CENTURY APPROACH:-........................................................................................... 10

APPROACHES AFTER 19TH CENTURY:- ....................................................................... 11

MODERN APPROACH.......................................................................................................... 12

CONCLUSION ............................................................................................................................ 14

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 Express Repeal and Implied Repeal In Indian Law

INDIAN LEGAL SYSTEM AND REPEAL OF LAWS

The Indian Constitution is a living, breathing document appended by numerous laws, rules and
regulations; most of which find no place in the present legal system, yet still remain in force. The
catena of these obsolete legislations escaped public notice for decades until it was brought to the
forefront by the ruling party’s election campaign which called for the repeal of 758 Appropriation
Acts, all of which were obsolete1. The newly elected government came true on its promise and
enacted The Appropriation Acts (Repeal) Act, 2016 which was the first of its kind to address the
problem of redundant laws. While, the Appropriation Acts were successfully repealed,
antediluvian laws such as the Wild Birds and Animals Act, 19122 which imposes a paltry fine of
Rs. 50 on unlawful capture of wildlife in Uttar Pradesh, subsist to this day.3

In order to successfully tackle the problem of a congested legal framework, one needs to
understand the solution i.e. – repeal. At this juncture, it is essential to take note that “there is no
real distinction between repeal and amendment”4 since through analysing various judgements it
can be seen that meanings of both the words tend to overlap. For instance, if a section from a
particular statute has been deleted, it can be said that the section has been repealed while the statute
has been amended.5 It has also been held that using words which show the intention to abrogate
the Act or provision in question is the only pre-requisite to repealing a legislation and not the usage
of a particular form of words6. The use of any form of words is known as an express repeal and in
cases where a legislation is considered to have been repealed or nullified by an implication or an
inference is known as an implied repeal.

The power to repeal a legislation cannot be taken away or tampered with however when a State
adopts a Central Act under Article 252, the amendment or repeal of that statute does not affect the
functioning of that law in the particular state7. Complications tend to arise when a law is repealed
by way of a clause which reads, “all provisions inconsistent with this Act are hereby repealed”.
The uncertainty of the inconsistency confers a garb of subjectivity since such a clause needs to be

1 The Appropriation Acts (Repeal) Act, 2016.

2 Wild Birds and Animals Act, 1912.
3 https://www.livemint.com/Opinion/wvCA3H1ilcwjn6ZCmGTHLP/India-needs-a-National-Repeal-Law-Day.html
4 Bhagat Ram Sharma v. Union of India, AIR 1988 SC 740.
5 G.P. Singh, Principles of Statutory Interpretation, (12th ed. LexisNexis, 2010) p. 640.
6 R v. Longmead, (1975) 2 Leach 694.
7 CIT v. Venkateshwara Hatcheries, AIR 1999 SC 1225.

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 Express Repeal and Implied Repeal In Indian Law

read on a case to case basis8. Yet another equally uncertain situation arises when a repealing act or
provision contains the clause, “shall to the extent necessary to give effect to the provisions of this
Act be deemed to have been repealed or modified”. Faced with such perplexing outcomes, the
formulas of implied repeal are applied to reach a satisfactory interpretation.

Under English jurisprudence, there exists a presumption against implied repeal. This is so because
it is assumed that the legislature is aware of any conflicting or duplicate laws and the fact that it
chose not to include a repealing clause in the new statute shows its reluctance in enforcing a repeal.
The principle expression unius est exclusio alterius further strengthens the presumption. The
presumption is, however, rebutted and a repeal is inferred by necessary implication when the
provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act
that “the two cannot stand together”.

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 direct conflict between the two provisions;

2. Whether the legislature intended to lay down an exhaustive Code in respect of the
subject matter replacing the earlier law;

3. Whether the two laws occupy the same filed.

The doctrine of implied repeal is based on the teory that the Legislature which is presumed to know
the existing law, did not intend to create any confusion by retaining conflicting provisions and,
therefore, when the court applies the doctrine, it does no more than give effect to the intention of
the Legislature by examining the scope and the object of the two enactments and by a comparison
of their provisions.

If a prior law provides both for 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 repealed. Additionally,
a recital in a later Act that it was not repealing an earlier Act will be of no avail if the later Act
enacted a provision which was quite contrary to the earlier Act; and the earlier Act would stand

8 Garnett v. Bradley, (1878) 3 AC 944.

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 Express Repeal and Implied Repeal In Indian Law

repealed as effectively as if it had been expressly repealed. A repeal by implication is just as

effective as by express words. Section 6 of the General Clauses Act applies also to implied repeals.

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 Express Repeal and Implied Repeal In Indian Law

REPEAL BY A TEMPORARY STATUTE

When a temporary statute effects a repeal of an existing statute, a question arises whether the
repealed statute revives on the expiry of the repealing statute. Section 11(1) and section 38(2)(a)
of the Interpretation Act, 1899, in terms are limited to cases of repeals of a repealing enactment
and have no application to a case of expiry of a repealing Act. As regards the General Clauses Act,
1897, in terms limited to repeals; and therefore has no application on expiry of a repealing statute.
But in Section 7 of the General Clauses Act, which corresponds to Section 11(1) of the
Interpretation Act, the language is slightly different. However, having regard to the context and
the setting of the section it appears also to be inapplicable to a case of expiry of a repealing statute.
The answer, therefore, to the question, whether a statute which is repealed by a temporary statute
revives on the expiry of the repealing statute, will depend upon the construction of the repealing
statute. As regards to the effect of the repealing of an earlier Act made by a temporary Act, 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.9

It was held by the Apex Court in the case of West U.P. Sugar Mills Association vs. State of U.P.
that rule 49 of the U.P. Sugarcane (Regulation of supply and purchase) Rules substituted by the
Amendment Rules 1992 (which were to have effect from 1-10-1991 to 30-09-1992) in place of the
then existing rule 49 was held to repeal the existing rule absolutely which was not received after
the expiry of the substituted rule10.

A decision of the Privy Council, in an appeal from Ontario, also illustrates that a temporary Act,
after its expiry is not to be treated for all purposes as if it had never been enacted. In that case the
power of the Canadian Radio Broadcasting Commission to acquire existing private stations by
lease was curtailed by a temporary Act, in that the power was expressly made subject to the
approval of the Governor in Council. A lease obtained by the Commission during the currency of
the temporary Act, was challenged after the expiry of the Act in a legal proceeding, on the ground
that the lease was invalid being not in acorance with the the approval of the Governor in Council
as required by the expired Act. This plea, though resisted on the ground that it could not be raised

9 State of Orissa v. Bhupendara Kumar, AIR 1962 SC 945.

10 West UP Sugar Mills Association v. State of UP, AIR 2002 SC 948.

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 Express Repeal and Implied Repeal In Indian Law

after expiry of the Act, was sustained by the Privy Council on the view that the temporary Act was
not for all purposes to be treated as if it had never been enacted. If the repealing section in a
temporary statute on construction, is held to expire with the expiry of the Act, the repeal will be
construed only as a temporary repeal11.

In the case of R vs Rogers, Section 1 of Statute 46 Geo. 3 repealed the provisions of Statute 42
Geo. 3 and substituted some other provisions. Section 14 of the repealing Act provided that the
Act shall continue in force till a certain period. It was held that ‘the Act’ referred to in section 14
included whole of the Act and incorporating section 1 with section 14, the repeal expired with the
expiry of the Act reviving the operation of the earlier Act. In the same case, there were observations
to the effect that a repeal by a temporary Act is prime facie only a temporary repeal resulting in
revival of the repealed provisions after the expiry of the repealing Act12.

However, in the case of R.C Jall v. Union of India, when a permanent ordinance imposing a cess
of coal was repealed by a temporary ordinance which specifically applied the provisions of Section
6, General Clauses Act, it was held that the provisions of the repealed ordinance, which were
continued for enforcing the right acquired and obligations incurred before the repeal, did not expire
with the expiry of the repealing ordinance. It seems to have been assumed in this case that the
repeal, though brought about by a temporary ordinance, was a permanent repeal13.

11 Gooderham & Worts v. C.B. Corporation, AIR 1949 PC 90.

12 R vs. Rogers, (1809) 103 ER 891.
13 R.C. Jall v. Union of India, AIR 1962 SC 1281.

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 Express Repeal and Implied Repeal In Indian Law

IMPACT OF EXPRESS AND IMPLIED REPEAL IN INDIA

The Constitution gives Parliament the power to enact or remove a law as and when required in its
own discretion. The Parliament has the supremacy and the competency to introduce, enact, revive
ad repeal a law. The power to enact a law, automatically carries with itself a power to repeal a
law.14 The Indian Parliament through the advent of Article 368 has been given a wider power to
amend and transform a law as well. The Parliament has been provided with parliamentary
supremacy as had been the case in the United Kingdom. A.V. Dicey, the proponent of
Parliamentary Sovereignty upheld that the Parliament has the sole right to make or unmake laws
and no other body shall override the powers vested in the highest legislative body of the country.15

However, even though the Parliament has been given with the utmost power to make laws, it
cannot be bound by its predecessors, nor can it bind its successors through any law. According to
Thomas Paine, every generation is free to act for itself just as its preceding generations.16 Same
can be justified by the ability of the legislature to repeal a particular Act of the Parliament by the
process of express or implied repeal. The Parliament has been given a choice to undo a thing it did
before.17

When a statute is repealed, the results can be very drastic.18 It is as if the law never existed. All
rights, duties, and liabilities as incorporated under the statute is made non-existent as if they never
arose. Usually, apart from the ongoing cases pertaining to the now repealed statute, or any cases
dealt with by the statute, no fresh proceedings can be brought up under the now repealed law.19 To
avoid confusion between many existing and repealed laws, usually the Parliament has been
inserting saving clauses in the Acts repealing any Statute as a precautionary measure. The same
has been done in the case of The General Clauses Act, 1897. Section 6 of the Act acts as a general
saving clause providing for the effect of a repeal and is applicable to laws not consisting of any
specific clauses therein. Various other laws and legislation too have similar kind of sections putting
their effect or repeal in check.

14 Ramakrishna v. Janpad Sabha, AIR 1962 SC 1073.

15 Kesavananda Bharti v. State of Kerala, (1974) 4 SCC 225.
16 Thomas Paine, Rights of Man, 1987, pp. 204.
17 Duke of Argyll v. IRC, (1913) 109 LT 893, p. 895.
18 G.P. Singh, Principles of Statutory Interpretation, (12th ed. LexisNexis, 2010) p.695.
19 Keshavan v. State of Bombay, AIR 1951 SC 128.

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 Express Repeal and Implied Repeal In Indian Law

When an Act is suddenly repealed, one question arises dealing with the continuation of pending
cases through that law. The same can be done through the repealing clause of the Act or by Section
6 of the General Clauses Act. The Section applies only to the Central laws20 and provides that a
repeal subject to the legislative intention and the facts and circumstances of the case should not
affect any of the act done prior to the said repeal and should not result in prejudice to any rights,
duties, or liabilities incurred under the previous Act.

REVIVAL OF REPEALED ENACTMENTS

Another issue pertaining to a repeal that arises is the revival of a previously repealed statute.
Section 7 of the General Clauses Act provides that if the first statute is repealed by a second statute
further being repealed by a third enactment, the first statute shall not be revived unless an express
provision has been provided for in the third statute.21 For revival of a statute previously repealed,
one needs to understand the reasons for the repeal of the same in the first place.22 Consideration
as to declaration of invalidity on the grounds of legislative competence or other reasons need to be
assessed.23

SAVING OF RIGHTS

The law also provides for the saving of the rights and liabilities as had been present in the now
repealed statute. Any rights acquired or liabilities present prior to the repeal of the existing Act.
The idea is that there should not be any affect to the rights and liabilities already provided for in
the Act. However, when a procedural law is repealed, the new law shall be applicable in the
pending proceedings unless the new law has a clause expressly providing for the old law to
continue in such situations.24

20 Rayala Corporation v. Director of Enforcement, AIR 1970 SC 494.

21 Ameer-um-Nissar Begum v. Mehboob Begum, AIR 1955 SC 352.
22 Property Owners Association v. State of Maharashtra, 1996 (4) SCALE 225.
23 Ibid.
24 Natbar Parida v. State of Orissa, AIR 1975 SC 1465.

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 Express Repeal and Implied Repeal In Indian Law

HISTORY OF PRESUMPTION AGAINST REPEAL BY IMPLICATION

17TH CENTURY TO 18TH CENTURY

The principle of presumption against repeal by implication emerged in seventeenth century

England. The first such case was cited by Sir Edward Coke in 1614 in a report on statutory
interpretation serves as the foundational authority for the presumption against implied repeals. In
this case Coke considers the relationship between an Elizabethan statute and a Jacobean statute
providing different punishments for conviction. Coke based his analysis on the maxim - leges
posteriores priores contrarias abrogant and said that -

“It must be known, that for as much as Acts of Parliaments are established with such
gravity, wisdom, and universal consent of the whole realm, for the advancement of the
commonwealth, they ought not by any constrained construction out of the general and
ambiguous words of a subsequent Act, to be abrogated [but] … ought to be maintained
and supported with a benign and favorable construction.”25

Coke’s intention is to restrain the scope of interpretation in statutes. He gave importance on the
rigid framework of law given by the legislature and sought to curtail judicial interpretation.
However, later approaches differ from Coke’s approach upon this point.

19TH CENTURY APPROACH:-

American courts borrowed the principle of presumption against implied repeals directly from
Coke’s description albiet with some alteration. American courts in 19th century followed the same
assumption put forward by Coke in Dr. Foster’s case and some treatises on statutory interpretation
take Coke’s reasoning to its logical conclusion. Like Coke these treatise writer advocates a strong
version of presumption against repeal by implication. The treatises suggest that, towards the end
of nineteenth century, courts were increasingly willing to weigh ‘convenience’ against the

25 Dr. Foster’s Case, 77 ER at 1232.

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presumption when deciding what to do with two conflicting statute. The treatises show that
between 1800 and 1849 the court considered the possibility of implied repeals in fifteen majority
opinions, but found that it occurred in only one case. But between 1850 and 1899, the courts
considered much more frequently and concluded that implied repeal occurred in thirty six of ninety
nine cases.

Coke and his faithful successors applied the later enacted statute rule only in cases involving
logical contrariety or repugnancy between two laws. In the 1860s and 1870s, a series of opinions
supported the use of a strengthened presumption when implied repeal “would operate to the
prejudice of the government,” as, for example, by depriving it of revenue. In other words, this
period witnessed the emergence of new manifestations of legislative intent, in the form of
codification and widespread statutory revision, but judicial understanding of the type of intent
manifested through such legislative acts was only to understand the legislative omniscience
embraced by Coke26.

APPROACHES AFTER 19TH CENTURY:-

After 1930’s, the courts became increasingly unwilling to apply the doctrine of implied repeal.
The case Cope v. Cope27 decided in 1891 by Supreme Court of the United States involved an
apparent conflict between a series of statutes passed by the Utah territorial legislature allowing
illegitimate children to inherit property and an 1862 federal anti-polygamy statute, which annulled
all existing Utah acts “that establish, support, maintain, shield, or countenance polygamy.”

The Supreme Court reconciled the statutes by interpreting the Utah laws as sheltering not the
practice of polygamy but the offspring of polygamous marriages. The Court justified this
conclusion by reference to Congress’s purposes in enacting the anti-polygamy statute, which the
Court ascertained through examination of federal enactments subsequent to this statute. The Court
thus reconciled the potentially conflicting laws not just through formalist demonstration of the

26 California Law Review, Vol.92, Issue 2, Article 4, page 506.

27 Cope v. Cope, 137 U.S. 682 (1891).

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logical possibility of their coexistence but through exposition of their deliberate creation as
mutually supportive parts of a coherent statutory regime28.

In another case decided in 197329, US Congress passed the Indian Reorganization Act in 1934
which included a provision that gave hiring preference to Native Americans for positions in the
Bureau of Indian Affairs (BIA). Congress then passed the Equal Employment Opportunity Act of
1972, which prohibited racial discrimination in federal employment. In June 1972, the BIA
extended Indian preference to both hiring and promotion decisions. C.R. Mancari was a non-
Indian employee of the BIA. He and other non-Indian employees of the BIA filed a class action in
United States District Court for the District of New Mexico. They claimed that Section 472 was
repealed by the Equal Employment Opportunity Act. They also claimed that Section 472 violated
the Fifth Amendment and their right to property without due process. The District Court ruled in
their favour. The State appealed to the Supreme Court.

Justice Harry A. Blackmun, writing for a unanimous Court, cited the long history of Indian
employment preference as exceptions to prohibitions against employment discrimination.
Congress had passed two Indian preference statutes after the 1972 Act, showing that Congress did
not intend implicitly to repeal Section 472. In addition, the Court held that Section 472 did not
constitute discrimination in violation of the Fifth Amendment. Again, Justice Blackmun cited the
history of “special treatment” granted to Indians. The preference for Indians in Section 472 was
not “a ‘racial’ preference”, but rather “an employment criterion reasonably designed to further the
cause of Indian self-government.” Section 472 went towards the “fulfilment of Congress’ unique
obligation towards the Indians,” and was therefore not in violation of the Fifth Amendment.

Moreover, the Court’s reasoning in Morton v. Mancari is exceptionally faithful to the anti-
updating, preservationist policy underlying the presumption. Morton v. Mancari confirms that,
although in the twentieth century the Court began self-consciously to apply a more functionalist
approach to the reconciliation of statutes in the service of the presumption against implied repeals,
the presumption itself remained highly formalist in character.

MODERN APPROACH

28 California Law Review, Vol.92, Issue 2 page.506 & 507.

29 Morton v. Mancari, 417 U.S. 535 (1974).

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In a recent case in USA, the court’s treatment of the question of implied repeal highlights the
problems with the courts current use of the presumption. In USA, when there arises a conflict
between state and Federal laws, the pre-emption30 doctrine applies unlike the presumption against
implied repeal. Under the Supremacy Clause, if a federal law enacted “in Pursuance” of the
Constitution collides with state law, the federal law prevails regardless of its temporal relationship
to the state law with which it conflicts.’

30 Pre-emption refers to invalidation of a US state law when it conflicts with US Federal law.

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CONCLUSION

Though India has massively grown since its independence in 1947, the presence of the old archaic
laws seem to keep on proving that the old colonial master is still in power. The Indian Constitution
is now in its 70th year of existence. It has more than a hundred amendments and is rightly adjudged
as a ‘living document’. The Constitution seems to change and develop with the passage of time
and society. However, it does not seem to be the case with other laws of the land. Many archaic
laws in the form of Acts or laws within an Act still exist. Even though the Union Government had
taken an initiative to repeal a huge mass of obsolete laws, many more still remain to go. The move
isn’t enough, but it sure is a start.

The laws at both the Centre and State should develop over time. Some old Acts and laws are minor
irritants, but many are downright ridiculous. Certain section of the Indian Penal Code can be sought
as example. Another example can be the archaic laws passed to protect the Devadasis and naik
Girls through the Naik Girls Protection Act, 1929 that allows the district magistrate to detain these
girls in settlements for unspecified periods and investigate the community members in case of any
apprehension of danger. The law was benevolent in the sense that it sought to protect and regulate
the movement of the Naik girls, but if we see it today, it is clearly now obsolete and redundant.
Apart from these many laws criminalizing third gender or castration of bulls still exist. Treatment
under such laws are now rendered unconstitutional and should come to an end.

A lot needs to be done by the legislature and the courts. The idea of “sunset clauses” should be
adopted to ensure that the future laws do not end up becoming nuisance. The old laws which are
no longer in use should automatically lapse by adopting the practise of desuetude. The drafting of
laws is the very cornerstone of a democracy. The effectiveness of laws is an important component
and mere “paper tiger” image should not exist. Both enforcement and enactment of laws are
important and removal of such laws that are unconstitutional should be a must.

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