MODULE 7
Commencement, Operation, Expiry and Repeal of Statutes
COMMENCEMENT OF STATUTES
• Commencement means coming into operation of law.
• Section 3 (13) of the General Clauses Act, 1897 defines it as –
“Commencement, with regard to an Act or Regulation, shall mean the day
on which the Act or Regulation comes into force.”
• The Legislature may expressly appoint a particular future date on which a
law shall come into force.
• However, where no such day of operation of statute is appointed, the Law
comes into force from the date on which President of India accorded his
assent to it.
PROSPECTIVE OPERATION OF A STATUTE
• Prospective means “in future”. Hence, prospective operation means
operation from a future date.
• It means law applies to only those proceedings which have been instituted
after its commencement.
• Therefore, a person doing an act prior to commencement of law which
declares that act as an offence cannot be prosecuted for the same.
• Similarly, when the punishment for an offence is enhanced by a later law, a
person already suffering with punishment for that offence under a previous
law cannot be directed to undergo the enhanced term as per subsequent
law.
• A law shall have no application in case of pending proceedings on the date
on which it has been brought into operation.
RETROSPECTIVE OPERATION OF A STATUTE
• Retrospective means “from past date”. Generally every enactment operates
from a future date. But the legislature is competent to give effect to a law
from back date, i.e. retrospectively.
• Retrospective law is applied to pending proceedings also.
• If the legislature intends to give retrospective effect to an enactment, it has
to be expressly declared. In the absence of such a declaration, the law is
deemed to be prospective.
• In “State Bank’s Staff Union (Madras Circle) v. Union of India (2005 7 SCC
584)” meaning of retrospective law was explained. Retrospective operation
may mean – a) affecting an existing contract; b) re-opening up of past,
closed and completed transactions; c) affecting accrued rights and
remedies or d) affecting procedures.
RETROACTIVE OPERATION OF A STATUTE
• A retroactive statute applies to events or actions that occur after the statute
is enacted but is based on conditions or statuses that existed before its
enactment.
• It operates in the future but is influenced by past events or conditions.
• Example: If a law enacted in 2024 states that certain environmental
regulations apply to all factories built before 2024, it is retroactive because it
affects future operations based on past conditions.
DIFFERENCE BETWEEN RETROSPECTIVE &
RETROACTIVE
Retrospective: -
• Directly changes the legal consequences of past actions.
• Can impair or alter vested rights acquired under previous laws.
• Explicitly intended to affect past events.
Retroactive: -
• Applies to future actions but is influenced by past conditions.
• Typically does not impair vested rights but may impose new obligations based on
RETROSPECTIVE STATUTE EXAMPLE
Case: Tax Law Amendment
Scenario: Suppose a government enacts a new tax law in 2024 that increases
the tax rate on income earned in 2023.
Effect: This law is retrospective because it changes the tax obligations for
income that was already earned before the law was passed. Taxpayers who
earned income in 2023 will now have to pay additional taxes based on the
new rate, even though the income was earned under the old tax rate.
RETROACTIVE STATUTE EXAMPLE
Case: Environmental Regulation
Scenario: Imagine a law enacted in 2024 that requires all factories built before
2024 to install new pollution control equipment by 2025.
Effect: This law is retroactive because it imposes new obligations on factories
based on their status (being built before 2024). The law affects future actions
(installing equipment by 2025) but is based on a past condition (factories built
before 2024).
2005 AMENDMENT TO HINDU SUCCESSION ACT
Section 4:
Omission of Sub-section (2): This sub-section, which previously allowed state
laws to override the Hindu Succession Act, was removed to ensure uniformity
in the application of the Act across India.
Section 6:
Equal Coparcenary Rights: The amendment substituted the original Section 6,
granting daughters the same rights as sons in coparcenary property. This
means daughters, by birth, become coparceners in their own right, similar to
sons.
Rights and Liabilities: Daughters now have the same rights and liabilities in
coparcenary property as sons. This includes the right to demand partition and
the responsibility to share debts and liabilities.
Devolution of Interest: Upon the death of a coparcener, their interest in the
property devolves by testamentary or intestate succession, not by survivorship.
This ensures that daughters receive an equal share as sons.
2005 AMENDMENT TO HINDU SUCCESSION ACT
Vineeta Sharma v. Rakesh Sharma (2020)
The Supreme Court clarified that the amendment is retroactive. Daughters
have equal rights in coparcenary property irrespective of whether the father
was alive at the time of the amendment.
PERPETUAL AND TEMPORARY STATUTES
Temporary Statute: -
The statutes which survive for a known period are called “Temporary Statutes”. The
Legislature may extend the duration of a temporary statute. It may also obliterate a
temporary statute prior to completion of its life. If the temporary statute is not
obliterated, it comes to an end automatically upon completion of its term. This is
called as “expiry of temporary statute”.
Perpetual Statutes: -
The dictionary meaning of the term perpetual is “continuing or enduring forever”. The
statutes which have no fixed life span and remain operative for indefinite period are
called as “perpetual statutes”. They are eternal. There is no pre-decided date of
termination of perpetual statutes. They do not lapse after a certain period of time.
There is no expiry of these statutes. They come to an end only when they are
abolished by the Legislature itself by way of enacting another statute. The process of
abrogation of perpetual statutes is called “Repeal”.
EXPIRY OF TEMPORARY STATUTES
The word “expiry” mean “an end”. A temporary statue is said to have
expired when it completes its specified period of life. After expiry, the
law no more survives. It looses its effect and operation. It does not have
any force. No formal abrogation is necessary. If temporary statutes are
not abrogated, they do not survive beyond the period of their
pre-determined life time. However, some statutes contain some special
provisions on the contrary. E.g. Section 1(3) of the Terrorist and Disruptive
Activities (Prevention) Act, 1985 (TADA).
The perpetual statutes never expire as they are eternal.
EFFECT OF EXPIRY OF TEMPORARY STATUTES
• Effect & Operation of Statute: - After expiry law comes to an end and no more
remains in force. It becomes inoperative and loses its effect.
• Institution of fresh proceedings: - No fresh proceedings can be taken upon it unless
contrary is provided in the statute itself.
• Pending Proceedings: - After expiry, pending proceedings cannot be continued
against a person since they terminate as soon as statute expires. However, where
savings clause is provided in the statute, there will be no effect of expiry of statute on
the proceedings pending under it.
• Notifications, Orders, Rules, Regulations made under the statute: - After expiry, any
appointment, notification, order, scheme, form, bye-law, rule made or issued under
that Act also comes to an end.
• Expiry does not make statute dead for all purposes: - Even if there is no savings
clause in the temporary statute, it does not become a dead letter after its expiry for
all its purposes. Where a person has violated and sentenced during the continuance
of the temporary statute, such person cannot be released prior to suffering full term
of sentence just because the statute has expired during the span of his sentence.
REPEAL OF PERPETUAL STATUTES
• A perpetual statute does not have a fixed life span and it remains unaffected by
passage of time, but it will continue to be operative till such time the Legislature
wants it to be in force. The Parliament is not only empowered to enact a law but
also to withdraw any enacted law from operation at any time.
• When the Legislature is satisfied that a law has become obsolete or it requires it to
be modified to suit to the changed need of the society, the Legislature may
obliterate the same. This is called as “Repeal”.
• Repeal means abolition or revocation of a law. The repeal of a law is a exclusive
domain of the Legislature. Parliament may repeal a perpetual statute and bring it to
an end. A temporary statute can also be repealed. But only temporary statute
expires. A perpetual statute never expires.
KINDS OF REPEAL
Repeal may be brought by the Parliament by two ways: -
• Express Repeal – The Legislature may enact a distinct repealing enactment
to declare that an earlier Act has been abolished. It is called as express
repeal.
• Implied Repeal – The Legislature may enact an enactment which is so
inconsistent with the earlier Act that no harmony between the two is possible
or it covers the entire subject-matter of the earlier statute. This is called as
implied repeal.
EXPRESS REPEAL
Essentials of a Express Repeal: -
• There must be a subsequent repealing Act
• Such subsequent Act must seek to repeal an earlier Act
• Specific words must be used in the subsequent repealing Act showing clear
intent to effect repeal of an earlier Act
• Following forms are employed to intend the express repeal –
“……is hereby repealed”
“…..shall cease to have effect”
“……..shall be inoperative”
“……..shall be invalid”
“…..all provisions inconsistent with this Act are hereby repealed”
IMPLIED REPEAL
The implied repeal takes place in two ways: -
1. When subsequent Act is so inconsistent with earlier Act that only one of the
two can remain in force;
2. When a subsequent Act covers whole subject-matter of the earlier Act and
intended to be a substitute for the earlier Act.
The doctrine of implied repeal is based on the presumption that the Legislature
knows existing laws and it did not intend to create confusion by enacting and
retaining conflicting provisions.
Implied repeal may operate on a part of statute or on its entirety. If
repugnancy relates to a part of statute, that part of statute will stand repealed
only to the extent of repugnancy.
Repeal shall not be inferred if two Acts can be read together and some
application may be made of words in earlier Act.
IMPLIED REPEAL
Atal Tea Co. Ltd. V. Regional P.F. Commissioner (1998 (79) FLR 372 Cal HC) –
In this case section 14-B of Employees Provident Funds and Miscellaneous
Provisions Act, 1952 was involved. This section was amended in 1988. By way of
amendment, power of Commissioner to levy damages were curtailed.
Formerly, it was up 100% and now it is as per sliding table under para 32-A of
the scheme. Point is whether this curtailment of power is prospective or
applied also in connection with defaults prior to amendment for which no
action was initiated prior to amendment. It was held that there is no saving
clause. There is a presumption against retrospectivity. This rule maybe
overcome not only by express words in the act but also by circumstances
sufficiently strong to displace it. The amended and unamended Section 14-B
are really incompatible and inconsistent with one another so far as rates of
levy of damages are concerned. By this amendment, provisions of section
14-B so far as it conferred the discretionary power to determine the rates at
which damages would have to be levied, can be said to have been repealed
by implication. The discretionary power to levy damages stands curtailed by
virtue of amendment.
GENERAL PRINCIPLES OF IMPLIED REPEAL
1. Only prior legislation is repealed by implication;
2. Implied repeal may not operate on entire statute;
3. Implied repeal of earlier law can be inferred only when subsequent law
occupies the same field;
4. Implied repeal may be concluded when exhaustive code is intended;
5. Prior special law is not repealed by later general law;
6. A prior general law may be affected by subsequent particular Act;
7. Affirmative enactment is not repealed by a subsequent affirmative Act;
8. Conferral of similar powers under two enactments at different levels does
not result in implied repeal of earlier Act;
9. Implied repeal can be inferred if later law imposes different punishment for
same offence.
EFFECT & CONSEQUENCES OF REPEAL
1. Later Act abrogates prior one;
2. Repealed Act ceases to exist and does not remain in force with effect from
the date of repeal;
3. As per general law, except in relation to the past and closed transactions,
a statute after repeal is completely obliterated as if it had never been
enacted. As such, all rights and causes of action under repealed statute
are destroyed.
4. When an Act is repealed, all laws passed under it stand repealed unless
there is a saving provision;
5. No proceedings can be commenced or continued under an Act after its
repeal. However, those cases remain unaffected by such repeal in which
the proceedings have been brought to finality prior to repeal of the
statute. The cases already completed shall not be reopened by the reason
of repeal of law under which prosecution was made;
EFFECT & CONSEQUENCES OF REPEAL
6. As a general rule, after repeal of a statute, the law which was in force at
the commencement of the repealed statute, revives. However, this
general rule is abrogated by Section 6(a) and 7 of the General Clauses
Act, 1897. So, the current position is that the first Act is not so revived unless
third Act makes an express provision to that effect.
7. A law can be retrospectively amended to validate the transactions made
under it, even after its repeal.
8. When an existing statute is repealed by a temporary statute, it is a
temporary repeal. After expiry of such temporary Act, the repealed Act
revives.
9. According to Common Law, the effect of repeal is that the statute is
completely obliterated and all rights under repealed statute are destroyed.
However, the rights and liabilities accrued under a law do not extinguish
due to repeal of that law.
EFFECT & CONSEQUENCES OF REPEAL
Section 6 of the General Clauses Act, 1897 provides the effect of repeal as under:
Where this Act, or any Central Act or Regulation made after the commencement of this Act,
repeals any enactment hitherto made or hereafter to be made, then, unless a different
intention appears, the repeal shall not--
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or
suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any
enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence
committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right,
privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or
enforced, and any such penalty, forfeiture or punishment may be imposed as if the
repealing Act or Regulation had not been passed.