"The law must be stable, but it must not stand still1."
Law is ever dynamic, ever changing in nature. With the development of society, new laws and enactments materialize to meet the requirements of evolving societal needs. Obsolete Acts are replaced with dynamic legal frameworks, befitting the changing societal norms and needs. Such modifications may be carried out either by the means of amendment or repeal.
In case where an old Act is repealed and the same is followed by new enactment, provisions are generally made under the repealing/ subsequent Act in form of 'saving clause'. Saving clause is provided under any enactment to protect vested rights, as they existed on the date of repeal. Such clause is considered, "ordinarily a restriction in a repealing act, which is intended to save rights, pending proceedings, penalties, and so on, from annihilation that would result from an unrestricted repeal2". As per Crawford's Statutory Construction3, saving clause is used to exempt something from immediate interference or destruction. Saving clause helps in easy transitioning of the law from its old to new format/ from and, is generally used in the repealing statue to prevent it from affecting rights accrued, penalties incurred, duties imposed, or proceedings started under the statute sought to be repealed.
There are instances where the repealing enactments may not contain any explicit provisions for saving. In order to cater to such contingencies, reference may be made to the provisions of the General Clauses Act, 1897 ("General Clauses Act"). The Law Commission Report4 on General Clauses Act, 1897 while, inter alia, discussing the scope of the said Act observed, "The objects of the Act are several, namely,...(4) to guard against slips and oversights by importing into every Act certain common form clauses, which otherwise ought to be inserted expressly in every Central Act..." As per the Hon'ble Supreme Court5, the purpose of General Clauses Act is to place in one single statute different provisions as regards interpretations of words and legal principles which would otherwise have to be specified separately in many different Acts and Regulations.
Prior to the enactment of the Interpretation Act, 1889, the rule of law in England was that the repeal of a statute would "obliterate it as completely from the records of the Parliament as if it had never been passed, except for the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law6". It was understood that a repeal, without a saving clause, would destroy any proceedings whether not yet begun, or whether pending at the time of the enactment of the repealing Act, and not already prosecuted to a final judgment so as to create a vested right7. In order to avoid such situations, practice came into existence in England to insert saving clause in the repealing enactment to protect the rights and liabilities already accrued or incurred under repealing enactment. This was followed by making a specific provision8 under the Interpretation Act, 1889 dealing with the effect of repeal in future Acts, to dispense with the necessity of having to insert a saving clause on each occasion.
Repeal of an enactment and the consequence ensuing therefrom is of particular importance in cases of criminal prosecution. There may be instances where, though, the repealed Act provides for prosecution of acts or omissions as offences, however, the repealing/ subsequent enactment may not provide for similar offence9. Likewise, where an Act is repealed, simpliciter10, the consequences of repeal on pending or anticipated/ possible criminal proceedings may not be provided for under such repealing Act. Under such situations, acting on the presumption that such repeal automatically annihilates the consequences following from the violation of its provisions, may often lead to gross injustice to parties affected by such violation/ breach. Therefore, in order to deal with such situations, reference to the provisions of General Clauses Act becomes imperative.
Section 6/ 6A were inserted under the General Clauses Act on the similar principles as under the English Law, providing for general provisions relating to effect of repeal11/ repeal of Act making textual amendment in Act or Regulation12. Section 6 of the General Clauses Act saves, inter alia, rights, privileges, obligations or liabilities acquired, accrued or incurred under any enactment so repealed13 and even the penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed14. The said provision makes enough fortification for not only exiting rights, liabilities, punishment, etc., rather, protects even pending investigation, legal proceeding. etc. As per the said Section, unless a different intention appears15, there is no embargo under law for initiation and/ or continuation16 of proceedings (Civil or Criminal) under the repealed enactment.
While discussing the applicability of Section 6 of the General Clauses Act, the Hon'ble Supreme Court in State of Punjab v. Mohar Singh, AIR 1955 SC 84 has held, "Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention...." The principles laid down by the Hon'ble Supreme Court in the said case are of significance in the cases where the repealing Act, being the subsequent Act on same subject, makes no provisions in nature of a saving clause. As per the Hon'ble Court, under such situations, it has to be specifically determined from the reading of the provisions of such subsequent Act, whether the subsequent enactment manifests an intention to destroy17 the rights and liabilities under the repealed Act. In order to determine the issue of survival of liabilities under the repealed Act, reference may be even made to the statement of object and reasons of the repealing enactment18. Section 6 of the General Clauses Act, in such case, would be applicable unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Further, such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new statute and the mere absence of a saving clause is by itself not material19.
Situation may also arise where the repealing-subsequent enactment provides for enhanced punishment for the offence. Therefore, for the act which amounts to offence under, both, the repealed and the repealing enactment, committed at the time when the repealed Act was in force, the prosecution may have been initiated after such repeal. Under such situations, in case proceedings under the repealed Act are initiated20 punishment21 must also follow from the provisions under the old repealed Act22 and not enhanced punishment, as provided under the repealing law.
Conclusively, law may23 not provide any respite to its violators even when it ceases its existence. Liability under the repealed law may continue to haunt the perpetrators of wrong and may eventually grab hold of wrongdoers under its clutches. Repeal of an enactment is no reason to rejoice for those who blatantly plundered its soul. Even on its demise, this 'vanishing beast' may leave behind its rudiments to avenge its wrongdoers.
1 Quote by distinguished American legal scholar and educator, Roscoe Pound.
2 Black's Law Dictionary – (https://thelawdictionary.org/saving-clause/)
3 1998 Ed., p. 612-13
4 Sixtieth Report on the General Clauses Act, 1897 (May, 1974)
5 Chief Inspector of Mines v. Lala Karam Chand Thapar, AIR 1961 SC 838
6 As per Tindal, C.J., in Kay v. Goodwin (1830) 6 Bing. 576 : 130 E.R. 1403
7 The Construction of Statutes by Earl T. Crawford, pages 599-600
8 Section 38 of Interpretation Act, 1889- Effect of repeal in future Acts
9 In a case where the repealed law is followed by another Act on the same subject.
10 Without being followed by another law on the same subject matter
11 Section 6 of the General Clauses Act, 1897
12 Section 6A of the General Clauses Act, 1897
13 Section 6(c) of the General Clauses Act, 1897
14 Section 6(d) the General Clauses Act, 1897
15 From the reading of the provisions of the repealing enactment and the object, etc. of repeal
16 Reference may be made to the words, "and any such investigation, legal proceedings or remedy may be instituted, continues or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed" under Section 6 of the General Clauses Act, 1897.
17 Hon'ble Supreme Court in State of Punjab v. Mohar Singh, AIR 1955 SC 84 has held, "The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them."
18 Reference in this regard may be made to the judgment of the Hon'ble Supreme Court in Sushila N. Rungta v. Tax Recovery Officer, 2018 SCC Online SC 2418
19 T.S. Baliah v. T.S. Rangachari, AIR 1969 SC 701
20 In case permitted, in light of the provisions of the repealing-subsequent enactment and Section 6 of the General Clauses Act, 1897.
21 Refer to para 5 of State of Punjab v. Mohar Singh, AIR 1955 SC 84
22 Lest the same may amount to violation of Article 20(1) of the Constitution of India, which provides, "(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence."
23 Unless not only the law, but the liabilities provided therein cease for reasons which may be gathered from reading of repealing enactment (eg. law losing its functionality, or for failure of repealed Act to achieve desired results, etc.)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.