By | March 24, 2017

Meaning of Repeal

Repeal means to revoke, abrogate or cancel particularly a statute. Any statute may repeal any Actin whole or in part, either expressly or impliedly by enacting matter contrary to and inconsistent with the prior legislation. Thus a statute frequently states that certain prior statutory provisions are thereby repealed. The courts will treat matter as repealed by implication only if the earlier and later statutory provisions are clearly inconsistent. When a repealing provision is itself repealed, this does not revive any provision previously repealed by it, unless intent to revive is apparent, but it may allow common law principles again to apply.

Under General Clauses Act, 1897, Section 6 “Repeal” connotes abrogation or obliteration of one statute by another, from the statute book as completely “as if it had never been passed.” When an Act is repealed “it must be considered (except as to transactions past and closed) as if it had never existed.

Effect of Expiry of Temporary Repeal

When a temporary Act expires, section 6 of the General Clauses Act, 1897,which in terms is limited to repeals, has no application. The effect of expiry, therefore, depends upon the construction of the Act itself. The leading authority on the point is the dicta of Park, B, in Stevenson v. Oliver[1]“The extent of the restrictions imposed and the duration of its provisions, are matters of construction.”

Legal Proceedings under Expired Statute

A question often arises in connection with legal proceedings in relation to matters connected with a temporary Act, whether they can be continued or initiated after the Act has expired. The answer to such a question is again dependent upon the construction of the Act as a whole.

The Legislature very often enacts in the temporary Act a saving provision similar in effect to section6 of the General Clauses Act, 1897. But in the absence of such a provision the normal rule is that proceedings taken against a person under a temporary statute ipso facto terminate as soon as the statute expires. A person, therefore, cannot be prosecuted and convicted for an offence against the Act after its expiration in the absence of a saving provision; and if a prosecution has not ended before the date of expiry of the Act, it will automatically terminate as a result of the termination of the Act.

Notifications, Orders, Rules, etc. made under temporary statute

When a temporary Act expires, the normal rule is that any appointment, notification, order, scheme, rule, form or bye-law made or issued under the Act will also come to an end with the expiry of the Act and will not be continued even if the provisions of the expired Act are re-enacted; the reason being that section 24 of the General Clauses Act, 1897, does not apply to such a situation. Similarly, a person’s detention under a temporary statute relating to preventive detention will automatically come to an end on the expiry of the statute.

Expiry does not make the statute dead for all purposes

But a temporary statute, even in the absence of a saving provision like section 6 of the General Clauses Act, is not dead for all purposes. As already stated the question is essentially one of construction of die Act. The nature of the right and obligation resulting from the provisions of the temporary Act and their character, may have to be regarded in determining whether the said right or obligation is enduring or not. Thus, a person who has been prosecuted and sentenced during the continuance of a temporary Act for violating its provisions cannot be released before he serves out his sentence, even if the temporary Act expires before the expiry of full period of the sentence.

Under section 4 of VI Geo. 4, c. 133, every person who held a commission or warrant as surgeon or assistant surgeon became entitled to practice as an apothecary without having passed the usual examination. This statute was temporary and expired on 1st August, 1826. It was held that a person who had acquired a right to practice as an apothecary under the Act without passing the usual examination was not deprived of that right on expiration of the Act.

Repeal by a temporary statute

When a temporary statute affects 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, section 6(a), which corresponds to section 38(2)(a) of the Interpretation Act, is also interims 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.

Submitted by – Shradha Arora, CNLU Patna

(Editor @ Legal Bites)

[1] (1841) 151 ER 1024

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