Effects Of Repealing Of Statutes

Society is never static but always dynamic and change is the supreme law of every society. To keep pace with this trend, every legislature responds to changing social, economic, political and other conditions through the instrumentality of enacting new laws or repealing the existing laws with reference to change in the society. In India, the parliament is one of the three organs of the state which has the authority of enacting laws in India and is constitutionally committed to doing it. Though the parliament has not been vested with the exclusive power of making laws, it is the principal source of legislation and the power of parliament in making laws takes precedence over the lawmaking power of the executive and judicial branch of the government and it has to enact laws within the limits prescribed by the constitution itself. The parliament is competent, in its plenary powers, not only to introduce a new law but also to repeal it by another enactment or to revive or re-enact legislation which had already expired by lapse of time. This legislative power to repeal prior laws is not precluded by constitutional limitations but exists as an integral part and increment of the legislative power and function and it is not within the power of any parliament to prevent the repeal of any of its own Acts or to bind its successors. Consequently, no statute can make itself secured against being repealed unless it falls within the boundary of the fundamental features of the Constitution. In this respect, Sidney Smith says “When I hear a man talk of an unalterable law, the effect it produces upon me is to convince me that he is an unalterable fool”.

The normal effect of repealing a statute without providing a saving clause is to obliterate it from the statute-book as completely as if it had never been passed and had never been existed except as to matters and transactions past and closed. But whenever there is a repeal of a statute, the consequences laid down in section 6 of the General Clauses Act, 1897 shall follow unless a different intention can be presumed from the repealing statute. In this regard, the Supreme Court of exercise of the judicial review power under article 254 of the Constitution of India.
Repeal is the abrogation or destruction of law by legislative enactment. Substitution of one legal provision by another is in fact repeal. Accordingly, where the schedule to an Act is substituted by a new schedule, section 6 of The General Clauses Act, 1897 would apply and the rights and liabilities incurred under the repealed schedule would be enforceable even after the repeal. A new law re-enacting the provisions of an earlier enactment, with or without modifications, nonetheless repeals that enactment, either expressly or by implication. There is no difference at all between a case where the legislature says that a particular section will stand amended in a particular way and a case where it says that the section stands repealed and its place will be taken by a new section if the new section is the same as the amended section. Section 6 of The General Clauses Act, 1897 is applicable whether it is repeal or amendment and there is no reason for giving any different effect to these two methods which achieve the same result. But the suspension of a statute for a limited time is not repealed. Repeal may be either total or partial. It is total repeal when a statute is abrogated in its entirety and partial when there is abrogation or modification of a provision of a statute only.

Does ‘omission’ amount to ‘repeal’?

The word ‘repeal’ connotes the abrogation of one Act by another and it is the same thing as the omission of certain provisions of an Act, there being no difference between ‘repeal’ and ‘cancellation’. Sec. 19(6) of the General Clauses Act, 1897 provides as follows:
When the provisions of amending Act has duly been incorporated in the amended Act by “omission, insertion or substitution of any matter” in the amended Act then even though the amending Act is repealed, the “omission, insertion or substitution” thereunder made in the amended Act shall not be repealed but shall continue to be in-operation unless a different intention appears in the repealing Act that has repealed the amending Act.
The use of the words “repeals by express omission, insertion or substitution” covers different aspects of repeal and this is also, at the same time, a legislative indication that “omission” does amount to “repeal”. A similar indication is reflected in Fazlul Huq Haider @ Molla v. The State where the Court considered the omission of section 437 of the Code of Criminal Procedure, 1973 by the Law Reforms Ordinance of 1978 as repeal and held that such omission is governed by section 6 of the General Clauses Act, 1897. Consequently, the exercise of jurisdiction under the omitted sections is permissible if the proceeding started at any date earlier than such omission. But a contradictory view is taken in General Finance Co. Another v. Assistant CIT where the Supreme Court of India held that:
“The principle embodied in section 6 of the General Clauses Act, 1897 as saving the right to initiate proceedings for rights accrued or liabilities incurred during the prevalence of the Act, will not apply to the omission of a provision in an Act but only to repeal, as the omission is different from repeal.”

The Court while holding such view did not elaborate on how an omission is different from repeal. However, some trifle differences can be drawn between repeal and omission like in case of repeal an original section or article is discarded without keeping its replacement and it is considered that the enactment so discarded had never been enacted by the legislature and another difference is that an enactment repealed can be revived under section 7 of the General Clauses Act but such revival is not possible in case of an omitted enactment.

Repeal by Implication

Repeal may be either express or implied. It is express when declared in direct terms and implied when the intention to repeal is inferred from subsequent contradictory or inconsistent legislation. Though there is a presumption against repeal by implication and repeal by implication is not favored by the courts , yet, if the provisions of a later Act are so inconsistent with or repugnant to those of an earlier Act that the two Acts cannot stand together, then the presumption is rebutted and the earlier stands impliedly repealed by the later one . However, when two enactments exist together on the same subject, they need not be necessarily repugnant to each other, if both the statutes can harmoniously be construed. If the two Acts are in conflict with each other on the same subject and there is no space of reconciliation, the latter and special Act does prevail in that case.
So far as statutory construction is concerned, no distinction is made between the effects of express repeal and the effects of repeal by implication and section 6 of the General Clauses Act comes into play whenever a previous enactment is repealed either expressly or by implication. However, the application of section 6 of The General Clauses Act can be ruled out where a law, which replaces an old Act, provides for the continued operation of the old law in respect of certain matters and for the operation of the new law in respect of some other matters. A statute is presumed to have been repealed impliedly in the following cases:

I. If the provisions of the former enactment are clearly repugnant to those of the subsequent enactment.

II. If the application of the two statutes at the same time would wholly result in absurd consequences.

III. If the entire subject matter of the first enactment is taken away by the second enactment.

Effect of Repeal of a Provision Incorporated in another Act by Reference

If the provisions of a statute are incorporated by reference in a second statute and the earlier statute is repealed but without re-enactment, the second statute would continue to be in operation with the incorporated provisions of the repealed statute treated as being part of it and repeal or amendment of the earlier statute would not affect the later statute or the provisions incorporated in the later statute , if it is possible for the later statute to function effectually without the amendment or addition . But this rule is now subject to the qualification enacted in section 8 of the General Clauses Act, 1897 providing that when an Act is repealed and re-enacted unless a different intention is expressed by the legislature, the reference to the repealed Act would be considered as a reference to the provisions so re-enacted. The principle underlying sec. 8 applies to the construction of statutory rules and notifications issued under the various statutes, even though they do not fall within the express terms of section 8. The principle is also applicable to the construction of judicial orders and decrees. However, to attract the application of sec 8, at least three sets of enactment must be there: one, which has been repealed, the other which has been re-enacted, and the third, which has made reference to the corresponding provision in the re-enacted statute.

Repeal of Substantive Law

Substantive law is prima facie prospective in its operation Sec. 6 of the General Clauses Act, 1897 would apply to legal proceedings in respect of substantive rights which have already accrued under a repealed enactment and would not embrace a case where only a procedural right is granted. It was also observed in Maharaj Chintamani Sara Nath Shahdeo Appellant v. the State of Bihar (AIR 1999 SC 3609)that “the amending Act affects the substantive right of the appellant; therefore, it would have a prospective operation”. The reason is that the legislature could not have intended affecting vested rights or to impose new burdens retrospectively unless the words compel the court to give effect to it retrospectively.

Repeal of Procedural Law

Unlike the substantive law, procedural law is always retrospective unless a different intention is expressly made in the statute itself and no one has a right far less a fundamental right, to trial by specific court or a selected procedure, unless any constitutional objection by way of discrimination or the violation of any other fundamental right is raised.

But the prohibition under Article 35(1) of the Constitution does not extend to merely procedural laws changing the forum or reducing the trial time and procedural law would not contravene Article 35(1) merely because the retrospective effect is given to it.

If a statute deals just with the procedure in an action and doesn’t have an effect on the rights of the parties, it will be controlled to use, clear to all actions pending as well as future and a subsequent omission by way of amendment of a procedure cannot be of any consequence in respect of the proceeding against the litigant . But where a new period of limitation was provided after the cause of action arose, sec. 6 of the General Clauses Act would not apply and the new limitation prescribed by the amending Act would govern the case.

However, change in the manner for trial or dismissal of litigation no more a procedural change of law and hence it is protected by the General Clauses Act, 1897. But if the rights under the repealed statutes are saved and the repealing statute does not provide any new procedure applicable to the rights so saved, it would be consequential that the old procedure is saved as the only machinery for enforcing the old rights.

Repeal of Right of Appeal

An appeal is a continuation of the proceedings of the original suit unless otherwise provided by law and the right of appeal is not a mere matter of procedure but it is a substantive right. This right becomes a vested right on the date the original proceeding is initiated. A statute creating a new right of appeal is prospective in nature and cannot be applied retrospectively unless the law either expressly or impliedly gives retrospective effect to it. So the right of appeal is to be governed by the law prevailing on the date of filing the suit, not on the date of the decision by the court below or the date of filing of the appeal. But where the appellate court is abolished without providing an alternative forum, the right of appeal to the abolished court must perish with its abolishment. However, if a new forum is provided, the right would subsist and the right is to be exercised in the new forum even in respect of the old cause of action as a litigant has no vested right to a trial by a particular court[1].

Perpetual Statute and Temporary Statute

A statute providing no fixed time for its duration is a perpetual statute. Even though in the preamble, the purpose of a statute is mentioned as temporary, the statute cannot be treated as temporary if no fixed period is fixed or specified for its duration. The Finance Acts which are annual Acts are not temporary Acts and they often contain provisions of general nature having a permanent operation. A perpetual statute is not perpetual in the sense that it cannot be repealed or amended by the legislature; it is perpetual in the sense that it is not decimated or abrogated by the expiry of time. As a result, whenever a perpetual statute is repealed, the effect as provided by sec. 6 of the General Clauses Act would follow. On the other hand, a temporary statute is a statute that contains a clause limiting the duration of its validity and operation. A statute is temporary when the legislature fixes the period during which it remains in operation and unless extended ceases to have the operation on the expiry of the period so fixed by the legislature. The duration of a temporary statute may be extended by a fresh statute or by the exercise of the power conferred under the original statute. Even, a temporary statute may be made perpetual before its expiration and when so made it becomes perpetual ab initio.


The statutory rules of interpretation dealing with the effects of the repeal of enactment are underlined in the provisions of sec. 6, 7, 8, and 24 of the General Clauses Act, 1897. But the word ‘repeal’ is no longer confined within its literal meaning and extended to be comprehensive enough to include amendment, omission, insertion, substitution, addition and reenactment. However, right of repeal being inherent in the legislature alone, any change of law including its annulment otherwise than by legislation conflict, and is not necessarily contemplating repeal, and therefore the contemplation of any saving clause is out of the question. The consequences of repeal as provided in the aforesaid sections are also not absolute and have been made subject to the qualifications set forth in different decisions of the Apex Courts. For instance, the effect of sec. 6 attracts the repeal of a perpetual statute but the position is not the same in case of repeal of a temporary statute. Again, the wordings of section 8 are problematic and may result in giving retrospective operation to substantive law and violating article of the Constitution of India. In this regard, an amendment should be brought to this section providing a clear distinction between incorporation of a procedural and substantive provision of an earlier statute by reference to in a later statute. Where the reference of the former may mean the reference to provision as amended from time to time and reference to the latter would mean the reference to the provision as on the date of the reference. 

[1] Maharaj Chintamani Sara Nath Shahdeo, Appellant v. the State of Bihar, AIR 1999 SC 3609.

Adarsh Ranjan

Adarsh Ranjan, Content Writer, Law Corner B.Sc. LL.B. (Hons.), 5th year, Central University of South Bihar, Gaya

Leave a Comment