Repeal
What is Repeal?
Repeal refers to the revocation of a law enacted by the legislature by the means of a subsequent legislation. When a law is repealed, it is abrogated and ceases to exist in the statute books.
Official Definitions of Repeal
General Clauses Act, 1977
Section 6 of the Act lays down the effect of repeal. It clarifies that the repealing of a law does not revive anything which was not in force at the time of the repeal, nor does it affect any rights, liabilities or proceedings created prior to the repeal, unless a different intention appears.
Section 6A concerns the effect of repealing an Amending Act. It states that such repeal will not affect the continuance of the amendment itself, unless a contrary intention appears.
Case Law
In Kolhapur Cane Sugar Works v. Union of India, the Supreme Court noted that when a statute is repealed, it is obliterated from the statute books as if it had never been passed. Section 6 of the General Clauses Act, 1977 only creates an exception in this regard.[1]
Types of Repeal
The repeal of a law may be either explicit or implied.
Explicit Repeal
A repeal is explicit when a law is expressly repealed in the subsequent enactment.
Implied Repeal
Implied repeal occurs when the provisions of a subsequent law are contrary to the earlier law, resulting in the implication that it was the legislature’s intent to repeal the earlier legislation by enacting the subsequent one. This is based on the Latin maxim leges posteriores priores contrarias abrogant, or ‘later laws abrogate earlier laws’.[2]
There is a general presumption against repeal by implication. The ‘doctrine of implied repeal’ presumes that the legislature knows the existing laws and does not intend to create confusion by retaining conflicting provisions. Therefore, the application of this doctrine entails a construction and analysis of the earlier and subsequent laws to identify inconsistencies between them. If there are inconsistencies that render them plainly repugnant to each other, it may be concluded that the legislature’s intention was to repeal the earlier law by passing the subsequent one, even though the former was not expressly repealed.[3]
A law may also be impliedly repealed on account of disuse over an extended period of time. This is referred to as the ‘doctrine of desuetude’. A law is repealed by the application of this doctrine if two elements are established: (i) the law has not been in operation for a considerable period of time; and (ii) a contrary practice has evolved over time. The mere neglect of a law is insufficient to attract the doctrine.[4] While this principle has been recognised by courts, it has never been applied in India.
Appearance in Official Databases
India Code Portal
The India Code Portal is a digital repository for all Central, State and Union Territory laws and their subordinate legislation that are in force. However, the website has not been updated since 2020.
Website of the Legislative Department, Ministry of Law and Justice
The website of the Legislative Department of the Ministry of Law and Justice has a page documenting action taken by the Government to repeal redundant and obsolete laws in accordance with the recommendations of the Law Commission of India. It also contains the Repealing and Amending Acts routinely passed by the Parliament in order to effect repeals of several laws at a time.
It identifies action taken with respect to Report Nos. 248 to 251, although subsequent Reports have also recommended the repeal of laws.[5]
Research that Engages with Repeal
Report of the Ramanujam Committee
The Ramanujam Committee, constituted by the Prime Minister’s Office in 2014, was tasked with the identification of laws that ought to be repealed on account of redundancy or obsolescence. The Committee submitted its report in 2015, and identified 1,741 laws for repeal, and 55 laws for repeal and re-enactment.
Old is Not Always Gold- A Case Study on Repealing Old Statutes[12]
The report, submitted to the NITI Aayog, identifies obsolete laws that remain to be repealed even after the enactment of the Repealing and Amending Act, 2015 and the Repealing and Amending (Second) Act, 2015 in pursuance of the Report of the Ramanujam Committee. It identifies over 750 laws on the Centre’s subjects that should be repealed. It also notes that State legislatures must repeal over 300 Central laws that govern State subjects specified in List II of the Schedule VII of the Constitution.
It also identifies the efforts of the Kerala Law Reforms Commission and the Rajasthan Laws Repealing Act, 2015 for the repeal of redundant and obsolete laws at the State level.
DAKSH- Single Source of Laws
This white paper emphasises the need to repeal redundant and obsolete legislations to create clarity regarding the laws in force. It notes that the over-legislation and the existence of overlapping and contradictory legislation makes it difficult to ascertain the extent to which the doctrine of implied repeal applies, and also creates difficulties in the dissemination of legal information.
Centre for Civil Society- Repeal of Law Tracker
The ‘Repeal of 100 Laws’ project was initiated to identify redundant and obsolete laws that ought to be repealed. Since then, a significant number of laws identified were repealed.
International Experiences
Australia
The Federal Register of Legislation is an official database that documents all Australian legislation. It allows the user to search for laws both in and not in force, with the latter including repealed laws.
Singapore
Singapore Statutes Online is an official database that enumerates all Singaporean laws, and has a specific page for repealed and spent laws.[16]
United Kingdom
The United Kingdom’s Law Commission submits periodic proposals to the Government for the repeal of obsolete laws to modernise and simplify laws. It has resulted in the repeal of over 3,000 Acts.[6]
Data Challenges
Currently, there is no up-to-date, centralised official database that records all the repeals enacted by Central and State legislatures. The India Code Portal Repealed Acts page has not been updated since 2020, although the Repealing and Amending Act, 2023 was passed last year. Further, there is no consolidated database on State legislation, making it unclear whether certain State laws have been or ought to be repealed.
This may impede a clear and consistent understanding of the laws that are in force, since the repealing act is not brought to the reader’s knowledge in an easy and accessible manner.
Way Ahead
The Parliament has been making efforts to periodically review and repeal redundant and obsolete laws, as recommended by the Ramanujam Committee. Renewed efforts by both the Central and State legislatures to give effect to these recommendations is necessary to streamline India’s hefty, and often overlapping, body of legislation.
Further, the routine updating of the India Code Portal and creation of databases of State legislation, along with their status as active or repealed, is necessary to accurately capture the state of the laws in force.
Related Terms
Repeal is often associated with other legal terms, which are synonymous or hold a different meaning from it.
Deletion and omission
In Kolhapur Cane Sugars, the Court used the words ‘repeal’, ‘deletion’ and ‘omission’ interchangeably, indicating that they are not legally distinct from each other. In an earlier judgement however, the Court had created a distinction between ‘repeal’ and ‘omission’ by stating that Section 6 only applies to repeals, and not omissions.[7] Subsequently, it confirmed that the terms are indeed synonymous in Shree Bhagwati Steel Rolling Mills v. CCE.[8]
Striking down
‘Striking down’ refers to a Court’s declaration that a law is unconstitutional. It obliterates the law from the statute books and renders it void ab initio, i.e., as if it never existed.[9] On the other hand, a repeal is effected by the enactment of a subsequent law by the legislature. A repealed law is not void ab initio since Section 6 of the General Clauses Act, 1977 saves the legal effects of the earlier law upto the date of the repeal.
Abeyance and Stay
The ‘abeyance’ or ‘stay’ of a law refers to the suspension of its operation. It continues to remain in the statute books. However, when a law is repealed, is ceases to exist in the statute books. For example, Section 124-A of the Indian Penal Code, 1860 has been kept in abeyance by the Supreme Court while it hears petitions challenging its constitutionality.[10]
Sunset clause and Spent Act
A ‘sunset clause’ sets a date for the automatic repeal of a law or a particular provision in it. Therefore, the law will stand repealed on the date specified unless the legislature decided to revive it prior to this date. Once this law lapses on the date of repeal, it is known as a ‘spent Act’.
For example, the Terrorist and Disruptive Activities (Prevention) Act, 1987 was enacted with a sunset clause that stated that the legislation would lapse in two years from its enactment.[11] However, it was revived three times and lapsed only in 1995.
References
- ↑ Kolhapur Cane Sugar Works v. Union of India, (2000) 2 SCC 356.
- ↑ Harshad S. Mehta v. State of Maharashtra, (2001) 8 SCC 257.
- ↑ State of Madhya Pradesh v. Kedia Leather & Liquor Ltd., (2003) 7 SCC 389.
- ↑ Monnet Ispat and Energy Ltd. v. Union of India, (2012) 11 SCC 1.
- ↑ For example, see the 255th Law Commission Report.
- ↑ https://lawcom.gov.uk/our-work/statute-law-repeals/
- ↑ Rayala Corporation (P) Ltd. v. Director of Enforcement, New Delhi, (1969) 2 SCC 412.
- ↑ Shree Bhagwati Steel Rolling Mills v. CCE, (2016) 3 SCC 643.
- ↑ State of Manipur v. Surjakumar Okram, 2022 SCC OnLine SC 130.
- ↑ S.G. Vombatkere v. Union of India, 2022 LiveLaw (SC) 470 order dated 11.05.2022.
- ↑ Terrorist and Disruptive Activities (Prevention) Act, 1987, section 1(4).
