Repeal of the Repealing/Amending Act: Analysing the Implications

Introduction

A repealing/amending Act plays a significant role in the legal landscape of a jurisdiction as it serves as a mechanism for modification, consolidation and elimination of the existing laws. When such a repealing/amending Act is itself repealed, it becomes pertinent to understand the ramifications of such repeal. In other words, a provision came to be inserted/deleted by way of a repealing/amending Act. Later, the repealing/amending Act was itself repealed by a subsequent repealing Act. The question which arises for discussion/consideration is the implication of such subsequent repealing Act on the substitution/omission/addition brought about by the repealing/amending Act and whether such substitution/omission/addition carried out also goes with it and status quo ante is restored. This article delves into the statutory and judicial framework surrounding such repeals, unpacking the consequences of repealing the repealing/amending Act.

Section 7 of the General Clauses Act, 1897¹, acts as a guiding principle in understanding the revival of repealed enactments. It mentions the rule on the revival of repealed enactments. It provides that:

(1) In any Central Act or Regulation made after the commencement of this Act, it shall be necessary, for the purpose of reviving, either wholly or partially, any enactment wholly or partially repealed, expressly to state that purpose.

This implies that an Act repealing the repealing/amending Act does not ipso facto revive the original Act. Instead, it needs to explicitly mention so.

This statutory mandate is also in conformity with Maxwell’s Treatise on the Interpretation of Statutes, which also mandated the use of specific words to revive the original statute, in absence of which, the original statute does not stand revived. Recently in 2016, a reference note of the Lok Sabha Secretariat on “Repeal of Statutes: Current Position”², also took the same view of the repealing Acts.

To analyse this better, we would now delve into various judgments on the effect of the repealing Act on the original repealing/amending Act.

Reconciling divergent judicial approaches

Among the early judgments frequently cited in this context is the celebrated judgment of the Calcutta High Court in Khuda Bux v. Caledonian Press³, which arose in the backdrop of a repeal to the Factories Act, 1934⁴. In this case, the Calcutta High Court commented on the effect of Acts repealing the repealing/amending Act, and observed that:

8. … such Acts have no legislative effect, but are designed for editorial revision, being intended only to excise dead matter from the statute book and to reduce its volume. Mostly, they expurgate amending Acts, because having imparted the amendments to the main Acts, those Acts have served their purpose and have no further reason for their existence. At times, inconsistencies are also removed by repealing and amending Acts. The only object of such Acts which in England, are called Statute Law Revision Acts, is legislative spring cleaning and they are not intended to make any change in the law….

Then came the Supreme Court verdict in Jethanand Betab v. State (NCT of Delhi)⁵, another seminal early judgment on the issue. In this case, the point of contention was the offence of possession of wireless transmitter, which was added to the Wireless Telegraphy Act, 1933⁶, via the 1949 Amendment⁷. This Amendment was subsequently repealed in 1952, and the question arose as to whether the possession of wireless transmitter is an offence. Answering in positive, the Court reasoned that the purpose of the repealing Act was to only expurgate the amending Act which had already served its purpose, as its effect had already been incorporated in the original Act.

Furthermore, a line of judgments delivered by the Punjab and Haryana High Court follow the same line of reasoning and indicate that the repealing statute does not take away the effect of the amending statute. This has been held by the Punjab and Haryana High Court in Sunil Goyal v. Haryana State Agriculture Marketing Board⁸ and Punjab State Power Corpn. Ltd. v. Permanent Lok Adalat⁹. This position has also been affirmed by the Delhi High Court in NHAI v. Mecon-Gea Energy Systems India Ltd. JV¹⁰.

In Sunil Goyal case¹¹, Section 28 of the Contract Act, 1872¹², was amended by the Indian Parliament Act No. 1 of 1997¹³, which was subsequently repealed by the Indian Parliament Act No. 30 of 2001¹⁴. In this case, the Court held that the repealing Act “does not have the effect of repealing the amendment” carried out by the repealing Act. The Court reasoned that “such repeal does not affect any other enactment in which repealed enactment has been applied, incorporated or referred to in terms of the repealing Act”.

Similarly, in Punjab State Power Corpn. Ltd. case¹⁵, where the Legal Services Authorities (Amendment) Act, 2002¹⁶, was repealed, the Punjab and Haryana High Court took the same position. However, in this case, Section 4 of the Repealing and Amendment Act, 2015¹⁷, itself explicitly stated that “the repeal by this Act of any enactment shall not affect any Act in which such enactment has been applied, incorporated or referred to”. This ensured that no ambiguity arose in the interpretation of the effect of the repealing Act.

Similarly, in Syed Shamshuddin v. Munira Begum¹⁸, Section 5 of the Shariat Act, 1937¹⁹, was repealed by Section 6 of the Dissolution of Muslim Marriages Act, 1939²⁰. Subsequently, this repealing Act was repealed by the Repealing and Amending Act 25 of 1942²¹, and the High Court was called to examine whether by reason of repeal of Section 6 of the Dissolution of Muslim Marriages Act, 1939, Section 5 of the Shariat Act, 1937 would stand revived and again become operative. The Andhra Pradesh High Court held that:

10. Where, therefore, the legislature expresses no intention that the original statute be reinstated, the fact that the repealing provision is itself repealed would not have the effect of restoring the original provision to the statute book….²²

In the backdrop of the cases affirming the view that the repeal of the repealing/amending Act merely serves an editorial function and does not alter the effect of the repealing/amending Act, a different line of argument was taken by Delhi High Court in Hem Chand Jain v. Bimla Devi²³. In this order, the High Court held that as an effect of the Act repealing the repealing Act, the original statute, is, which in this case was the Punjab Pre-Emption Act, 1913²⁴, would continue to be in force. This was a non-speaking order, adopting an entirely divergent stance, a position that we respectfully find ourselves in disagreement with. The implications of this holding by the Delhi High Court can be seen recently in a 2019 Delhi District Court verdict²⁵, where the Court relied on the Delhi High Court order’s position on the law regarding the issue of repeal.

The divergence in approach becomes apparent when examining the judgments of the Tripura and Calcutta High Courts regarding the status of Section 2-A of the Industrial Disputes Act, 1947²⁶ (hereinafter, “IDA”), post the repeal of the Industrial Disputes (Amendment) Act, 2010²⁷, through the Repealing and Amending Act, 2016²⁸. The 2010 Amendment to the IDA added sub-clause (2) to Section 2-A of the IDA which allowed the right of self-referral to workers, that is, it allowed individual workers to directly approach the Labour Court after 45 days of conciliation, regardless of whether the individual worker’s disputes were supported or sponsored by other workers or not. This created a legal question regarding the applicability of Section 2-A(2)²⁹, post the repeal of the 2010 Amendment.

The issue of validity and legality of proceedings under Section 2-A(2) of the IDA was raised in Glenmark Pharmaceuticals Ltd. v. State of Tripura³⁰, wherein the Tripura High Court held that the Repealing and Amending Act, 2016 rendered the 2010 Amendment infructuous, and hence, the workers cannot file an application under Section 2-A(2) of the IDA. It stated that the effect of the repealing Act is “the abolition of the law, and once if any statute is abolished, then, it is considered void having no effects”. We respectfully disagree with this interpretation and present the stance taken by the Calcutta High Court.

On the same issue, recently in Krishnadas Bhattacharjee v. State of W.B.³¹, the Calcutta High Court gave a contrasting verdict. It held that the provision of Section 2-A(2) introduced by the 2010 Amendment continues to survive in the statute book, and the Labour Courts/Tribunals are empowered to exercise jurisdiction on the basis of this section. The effect of the 2010 Amendment was saved by way of having already been applied, incorporated and referred to in the principal Act, namely, the IDA. This allowed the workmen to make an application under Section 2-A(2) of the IDA, making it possible for them to raise disputes without an obligation to ensure support from other workers. The object of the Repealing and Amending Act, 2016 is not to alter the existing law but to remove certain amendments which become unnecessary. The repealing Act, therefore, does not have the effect of removing Section 2-A(2) of the IDA from the statute book, so as to ouster jurisdiction of the Labour Courts/Tribunals. The object of the repealing Act is to remove unnecessary Acts, which have achieved their purpose and to strike out dead matter from the statute book. On the other hand, if the position in Glenmark Pharmaceuticals Ltd. case³², is to be followed, it disadvantages the workers, in absence of sponsorship/support from other workers, from bringing their genuine and legitimate grievances to the notice of the Labour Courts/Tribunals.

Hence, it is clear that the line of cases abovementioned mostly rely on the position taken by the Supreme Court in Khuda Bux case³³ and Jethanand Betab case³⁴. This position has also been affirmed in “Repeal of Statutes: Current Position, Reference Note No. 10/RN/Ref./February/2016, Lok Sabha Secretariat”. Moreover, the 22nd Report of VIIth State Law Commission, Uttar Pradesh on “U.P. Appropriation Acts (repeal)” is also informative in this regard, as it comprehensively analyses “‘Repeal of Statute: Concept, Object and Governing Principles³⁵ and confirms the same position. Notably, the Delhi High Court judgment in Hem Chand Jain case³⁶ and Tripura High Court judgment in Glenmark Pharmaceuticals Ltd.³⁷, are rather an outlier which deviates from the established position of law.

Concluding thoughts

The understanding of legislative intent, as reflected in Section 7 of the General Clauses Act, 1897, emphasises the necessity for express provisions to revive repealed enactments. This aligns with Maxwell’s Treatise on the Interpretation of Statutes, reinforcing the principle that the mere repeal of a repealing/amending Act does not automatically revive the original statute. The Lok Sabha Secretariat’s reference note further echoes this perspective, emphasising the importance of specific language in legislative enactments.

The judicial landscape, shaped by cases such as Khuda Bux case³⁸, and subsequent decisions from the Punjab and Haryana High Court, and the Delhi High Court, reflect a consensus that repealing/amending Acts primarily serve an editorial function, without altering the substantive legal landscape. However, the outlier case of Hem Chand Jain case³⁹ from the Delhi High Court and Glenmark Pharmaceuticals Ltd. case⁴⁰, from the Tripura High Court introduces a contrasting viewpoint, asserting that the original statute could continue to be in force post the repeal of the repealing Act or the amendment brought about by the amending Act, once repealed also takes with it the amendment which was introduced. This in our respectful view may not be the correct position of law.

In conclusion, while the majority of judicial opinions align with the notion that repealing the repealing/amending Act retains the status quo and does not revive the original statute, the legal community grapples with a notable exception in the Delhi High Court and Tripura High Court’s stance. This dichotomy underscores the need for legal clarity and the need for a definitive interpretation, bringing uniformity to the legal landscape surrounding the repeal of legislative amendments.