REFERENCE NOTE. No. 10/RN/Ref./February/2016

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1 LOK SABHA SECRETARIAT PARLIAMENT LIBRARY AND REFERENCE, RESEARCH, DOCUMENTATION AND INFORMATION SERVICE (LARRDIS) MEMBERS REFERENCE SERVICE REFERENCE NOTE. No. 10/RN/Ref./February/2016 For the use of Members of Parliament Not for Publication REPEAL OF STATUTES: CURRENT POSITION The reference material is for personal use of the Members in the discharge of their Parliamentary duties, and is not for publication. This Service is not to be quoted as the source of the information as it is based on the sources indicated at the end/in the text. This Service does not accept any responsibility for the accuracy or veracity of the information or views contained in the note/collection.

2 REPEAL OF STATUTES: CURRENT POSITION INTRODUCTION Repeal means to revoke, abrogate or cancel particularly a statute. Any statute may repeal any Act in 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 Thus a statute frequently states that certain prior statutory provisions are thereby repealed. The courts will treat matter as repealed by implication only if the earlier and later statutory provisions are clearly inconsistent. When a repealing provision is itself repealed, this does not revive any provision previously repealed by it, unless intent to revive is apparent, but it may allow common law principles again to apply.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 When an Act is repealed "it must be considered (except as to transactions past and closed) as if it had never existed." Just as the Legislature has the power to enact laws, similarly it has the power to repeal laws. The efficacy of the Legislature depends upon the possession of the power to repeal the existing law, for without this attribute the power to enact would be a nullity, and the body of the law a series of contradictory enactments. Consequently the legislative power to repeal prior laws is not inhibited by any constitutional prohibitions, but exists as a necessary part and increment of the legislative power and function. No statute can make itself secure against repeal. There is nothing to prevent any Parliament from enacting that a particular statute shall never in any circumstances be altered or abrogated. It is within the power of any Parliament to repeal any of the Acts passed by its predecessors and that it is not within the power of any Parliament to prevent the repeal of any of its own Acts, or to bind its successors. Repealing and amending 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 reasons for their existence. At times, inconsistencies are also removed by repealing and amending Acts. The

3 -2- 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. A statute is either perpetual or temporary. It is perpetual when no time is fixed for its duration, and such a statute remains in force until its repeal which may be express or implied. A perpetual statute is not perpetual in the sense that it cannot be repealed; it is perpetual in the sense that it is not abrogated by efflux of time or by non-user. A statute is temporary when its duration is only for a specified time, and such a statute expires on the expiry of the specified time unless it is repealed earlier. Simply because the purpose of a statute, as mentioned in its preamble, is temporary, the statute cannot be regarded as temporary when no fixed period is specified for its duration. The Finance Acts which are annual Acts are not temporary Acts and they often contain provisions of a general character which are of a permanent operation. A cessation of transitional legislative power has also no effect on the continuance of a perpetual Act enacted during the continuance of that power. The duration of a temporary statute may be extended by a fresh statute or by exercise of a power conferred under the original statute. When the life of a temporary Act is merely extended, it cannot be said that a new law has been enacted; but if the extension is accompanied by any substantial amendment, it would not be a case of mere extension. It appears that after a temporary statute expires, it cannot be made effective by merely amending the same. The only apt manner of reviving the expired statute is by re-enacting a statute in similar terms or by enacting a statute expressly saying that the expired Act is herewith revived 1. NEED FOR REPEAL A debate on the need to repeal obsolete laws has been set in motion in India with the government taking various steps to look into the matter. Even our erstwhile coloniser, Great Britain, initiated the process of repealing 38 such laws in the year 2013, which were passed between the years 1849 and 1942, pertaining to the construction and maintenance of the Indian Railways. Meanwhile, our own post-independence efforts to weed out obsolete laws, through a process of spring cleaning, remain pending The Hindu, New Delhi, dated

4 -3- LAW COMMISSION OF INDIA In the past the Law Commission had submitted various reports identifying number of laws as obsolete which demanded repeal. Commission s 18th and 81st Reports recommended the repeal of particular colonial law. The 18th Report sought to repeal of Converts Marriage Dissolution Act and the 81st Report recommended the repeal of Hindu Widows Remarriage Act. The 96th Report recommended repeal of the substantial number of obsolete laws. Once again the Commission in its 148th Report suggested repeal of a number of laws. Following the same path in its 159th Report submitted in the year 1998, the Commission recommended a substantial number of laws for repeal. Many of the laws identified as obsolete in these reports have been repealed. The Government also in 1998 appointed the P.C. Jain Commission which gave its report in September 1998 identifying a large body of laws for the purpose of repeal. During the course of its study the Commission found that a large number of Appropriation Acts passed during past several years have lost their meaning but these are still shown on statue-books. The Appropriation Acts are intended to operate for a limited period of timeauthorising expenditures for the duration of one financial year, or less, for example in the case of Vote on Account Bills. Though these Acts are not usually included in any list of Central Acts, either by the Ministry of Law and Justice, or elsewhere, these laws still technically remain on the books. It may be relevant to note that mechanisms exist in many other countries to systematically remove Appropriation Acts that have served their purpose. For example, in the United Kingdom, all Appropriation Acts usually contain a repealing provision which specifically repeals older Appropriation Acts. In Australia the route followed is that of automatic repeal for Appropriation Acts. Section 89 of Australian Legislation Act of 2001 mandates that certain Acts are automatically repealed and this includes Appropriation Acts, on the last day of the Financial Year for which it makes appropriation and thus in other words provisions in the nature of a sunset clause are read into every Appropriation Act by virtue of the Legislation of In India, however, no such mechanism is in place and Appropriation Acts continue to sit on statute-books. The Law Commission recommended that a practice like the one of the United Kingdom to include a repeal clause in the Appropriation Act every year would serve a useful purpose, without necessitating major amendments or introduction of new laws.

5 -4- The 20th Law Commission of India had undertaken a study The Legal Enactments : Simplification and Streamlining and the Committee till date had submitted four (interim) Reports titled "Obsolete Laws: Warranting Immediate Repeal" wherein it has identified, analyzed and duly recommended a number of archaic statutes as well as certain preconstitution and pre-independence enactments for either complete or partial repeal as per contemporary requirements 3. Ramanujam Committee Prime Minister on August 2014 had approved the constitution of a Committee to carry out a review to identify obsolete laws and to examine all Acts recommended to be repealed by the Committee on Review of Administrative Laws, which had been appointed by the Union Government of the then Prime Minister, Shri Atal Bihari Vajpayee, in The Prime Minister has expressed concern that out of the 1382 Acts recommended for repeal by that Committee, only 415 have been repealed so far. He has called for a focused and result-oriented exercise to systematically weed out archaic laws and rules 4. Accordingly, a Committee was constituted on 1 September, 2014 consisting of Shri R. Ramanujam, Secretary, Prime Minister's Office as Chairperson and Shri V.K. Bhasin, Former Secretary, Legislative Department, Ministry of Law and Justice as Member with the following Terms of Reference, namely:- "(i) to further process the act of repealing the Central Acts which are not relevant or no longer needed as on date and can be repealed whole or in part immediately based on recommendation of various Reports, Departmental/Ministry, the Law Commission and other Commissions and Committees; (ii) to identify the Acts amending the Central Acts which can be wholly or partially repealed in view of section 6A of the General Clauses Act, 1897; (iii) to identify the Central Acts which would require revisiting in the present socioeconomic context through appropriate amendments thereto or re-enactment thereof ". 3 Law Commission of India, Report No. 248 on "Obsolete Laws: Warranting Immediate Repeal", September 2014, pp PIB Release, dated

6 -5- At the outset, the Committee prepared the status of the Central Acts enacted from the year 1834 to 15th October, Briefly, the aforesaid status of the Central Acts is given in the Table below: CENTRAL ACTS ENACTED BEFORE THE COMMENCEMENT OF THE CONSTITUTION (FROM THE YEAR 1834 TO THE YEAR 1949) ENACTED AFTER THE COMMENCEMENT OF THE CONSTITUTION i.e., 26TH JANUARY, 1950 UPTO 15 OCTOBER, 2014) TABLE TOTAL CENTRAL ACTS ENACTED (No's.) CENTRAL ACTS IN FORCE/ EXISTING ON STATUTE BOOK (No's.) CENTRAL ACTS REPEALED (No's.) TOTAL The Committee has identified total 1741 Central Acts for repeal, out of total 2781 Central Acts existing as on 15th October, 2014 on the Statutes Book. The details of aforesaid 1741 Central Acts identified for repeal given as under: i). ii). iii). iv). 777 Central Acts identified for repeal (wholly or partly); 83 Central Acts relating to State subjects identified for repeal by the State Legislatures; 624 Central Appropriation Acts (in whole) upto the year 2010 identified for repeal; 257 Central Appropriation Acts in respect of States identified for repeal (in whole) by the State Legislatures. Briefly, out of 2781 Central Acts existing on the Statutes Book, the gist of the identification of Central Acts for repeal, consolidation, re-enactment and retention is briefly indicated as below:

7 -6- i). Total Central Acts identified for repeal 1741 No's ii). iii). iv). Total Central Acts identified for consolidation and re-grouping under 21 proposed Total Central Acts identified for repeal and reenactment Central Acts. Total Central Acts identified for retention (Although suggested for repeal) 150 No's 55 No's 18 No's In addition to 1741 Central Acts identified for repeal, the Committee has identified 150 Central Acts (on the related subjects/matters) to be consolidated and enacted into 21 Central Acts to avoid multiplicity of laws. thereof. In addition to above, the Committee identified 55 Central Acts for repeal and reenactment The Committee has identified 18 Central Acts suggested for repeal but recommended by the Committee for retention thereof at the present 5. The Repealing and Amending Act The enactment of Repealing and Amending Act since 1950 is one of the periodical measures undertaken by the Legislative Department of the Ministry of Law whereby enactments which have ceased to be in force or have become obsolete or the retention whereof as separate and independent Act is unnecessary, then, such enactments are repealed, or as the case may be, to remove any formal defects in any enactment which comes to notice during its administration. So far, ten Repealing and Amending Acts have been passed through which 1367 enactments have been repealed. The principal object of such Acts is to exercise dead matter, prune off superfluities and reject clearly inconsistent enactments. The last such enactment was 5 Ramanujam Committee Report, PMO, November 2014, pp. 1-3

8 -7- the Repealing and Amending Act, 2001 (30 of 2001), in which the Acts from the year 1985 to 1998 were included. The following table depicts Repealing and Amending Acts since 1950 S.No. Short Title Act No Number of Acts repealed 1. The Repealing and Amending Act, of The Repealing and Amending Act, of The Repealing and Amending Act, of The Repealing and Amending Act, of The Repealing and Amending Act, of The Repealing and Amending Act, of The Repealing and Amending Act, of The Repealing and Amending Act, of The Repealing and Amending Act, of The Repealing and Amending Act, of Total 1367 A perusal of the above tabular chart suggests that while the first repealing and amending exercise was carried out in the year The next exercise was initiated after a gap of 2 years i.e. 1952, the third such exercise was initiated after a gap of 1 year, Fourth after 4 years, Fifth after 3 years, sixth after 4 years, seventh after 10 years, Eighth after 4 years, Ninth after 10 years and the last such exercise was initiated after 13 long years 6. Repeal of Statute: Current Position The Central Government's resolve to bring reform in the legal system of the country, to make it more accessible to the common man and to imbibe the principles of rule of law, has, 6 Rajya Sabha, Report of the Select Committee on The Repealing and Amending Bill, 2014, February 2015, pp. 8-9

9 -8- inter-alia, began with the review of enactments which are obsolete, redundant and unnecessary. In fulfilment of this objective, the Central Government has undertaken a comprehensive review of laws and the legal system with a view to remove incoherent and redundant laws. As a step forward towards this direction, the Central Government has undertaken the following initiatives towards achieving its objective to repeal obsolete and redundant laws. The following Acts, namely, (i) the Repealing and Amending Act, 2015 (17 of 2015) to repeal 35 Acts; (ii) the Repealing and Amending (Second) Act, 2015 (19 of 2015) to repeal 90 Acts have been enacted (see Annexure). The Appropriation Acts (Repeal) Bill, 2015 (to repeal 758 Appropriation Acts) and the Repealing and Amending (Fourth) BIll, 2015 (to repeal 295 obsolete and redundant laws) as passed by the House of the People on 11 May, 2015 and 6 August 2015 respectively, are pending in the Council of States. On remaining Acts, action for repeal is at different stages. On being enacted, it would reduce obsolete laws and bring in clarity to those for whose benefit the laws are enacted 7. Conclusion The Government is moving purposefully to secure a declared objective of the Prime Minister: the identification and repeal of archaic laws that bloat up the statute books, occasionally conflict with other laws and may hinder governance and growth. However, sporadic commissions and initiatives would serve the purpose erratically. Lawmaking is the routine business of Government, and review for possible repeal should also happen routinely. If a review system were in place, our statute books would be slimmer 8. 7 Lok Sabha, Bill No. 194 of 2015, Repealing and Amending (Fourth) Bill The Indian Express, New Delhi, dated

10 -9- Annexure Acts repealed by the Repealing and Amending Act 2015 (17 of 2015) Year No. Short title Extent of repeal The Indian Fisheries Act, The Foreign Jurisdiction Act, The Sugar Undertakings (Taking Over of Management) Act, The Representation of the People (Amendment) Act, The Indian Majority (Amendment) Act, The Administrators-General (Amendment) Act, The Notaries (Amendment) Act, The Marriage Laws (Amendment) Act, The Repealing and Amending Act, The Mariage Laws (Amendment) Act, The Indian Divorce (Amendment) Act, The Indian Succession (Amendment) Act, The Legal Services Authorities (Amendment ) Act, The Representation of the People (Third Amendment) Act, The Transfer of Property (Amendment) Act, The Indian Evidence (Amendment) Act, The Representation of the People (Second Amendment) Act, The Representation of the People (Amendment) Act, The Election Laws (Amendment) Act, The Representation of the People (Amendment) Act, The Election and Other Related Laws (Amendment) Act, The Marriage Laws (Amendment) Act, The Representation of the People (Second Amendment) Act, The Delimitation (Amendment) Act, The Delegated Legislation Provisions (Amendment) Act, The Hindu Succession (Amendment) Act, The Parliament (Prevention of Disqualification) Amendment Act, The Delimitation (Amendment) Act, The Representation of the People (Amendment) Act, The Representation of the People (Amendment) Act, The Personal Laws (Amendment) Act, The Representation of the People (Amendment) Act, The Anand Marriage (Amendment) Act, 2012

11 The Administrators-General (Amendment) Act, The Parliament (Prevention of Disqualification) Amendment Act, 2013 Acts repealed by the Repealing and Amending (Second) Act, 2015 (19 of 2015) Year No. Short title Extent of repeal The Export-Import Bank of India (Amendment) Act, The High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, The Salary, Allowances and Pension of Members of Parliament (Amendment) Act, The Recovery of Debts Due to Banks and Financial Institutions (Amendment) Act, The Small Industries Development Bank of India(Amendment) Act, The Food Corporations (Amendment) Act, The National Housing Bank (Amendment) Act, The Salary, Allowances and Pension of Members of Parliament (Amendment) Act, The Leaders and Chief Whips of Recognised Parties and Groups in Parliament (Facilities) Amendment Act, The Major Port Trusts (Amendment) Act, The Insecticides (Amendment) Act, The Border Security Force (Amendment) Act, The State Financial Corporations (Amendment) Act, The Multimodal Transportation of Goods (Amendment) Act, The National Bank for Agriculture and Rural Development (Amendment) Act, The Chit Funds (Amendment) Act, The Warehousing Corporations (Amendment) Act, The Food Corporations (Amendment) Act, The Government of Union Territories and the Government of National

12 -11- Capital Territory of Delhi (Amendment) Act, The Inland Waterways Authority of India (Amendment) Act, The Salary, Allowances and Pension of Members of Parliament (Amendment) Act, The Explosive Substance (Amendment) Act, The Inter-State Water Disputes (Amendment) Act, The Salaries and Allowances of Officers of Parliament and Leaders of Opposition in Parliament (Amendment) Act, The Sugar Development Fund (Amendment) Act, The Salaries and Allowances of Officers of Parliament(Second Amendment) Act, The Salary, Allowances and Pension of Members of Parliament (Amendment) Act, The General Insurance Business (Nationalisation) Amendment Act, The Insurance (Amendment) Act, The Homoeopathy Central Council (Amendment) Act, The Indian Medicine Central Council (Amendment) Act, The Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, The Salaries and Allowances of Officers of Parliament and Leaders of Opposition in Parliament (Second Amendment) Act, The Consumer Protection (Amendment) Act, The High Court Judges (Salaries and Conditions of Service) Amendment Act, The Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, The Scheduled Castes and Scheduled Tribes Orders(Amendment) Act, The Companies (Second Amendment) Act, The Delhi High Court (Amendment) Act, The Essential Commodities (Amendment) Act, 2003

13 The Sixth Schedule to the Constitution (Amendment) Act, The National Bank for Agriculture and Rural Development (Amendment) Act, The Railways (Second Amendment) Act, The Indian Medicine Central Council (Amendment) Act, The Merchant Shipping (Amendment) Act, The Prevention of Terrorism (Amendment) Act, The Citizenship (Amendment) Act, The Salary, Allowances and Pension of Members of Parliament (Amendment) Act, The Foreigners (Amendment) Act, The Banking Regulation (Amendment) and Miscellaneous Provisions Act, The Enforcement of Security Interest and Recovery of Debts Laws (Amendment) Act, The Government of Union Territories and the Government of National Capital Territory of Delhi (Amendment) Act, The Citizenship (Amendment) Act, The Sree ChitraTirunal Institute for Medical Sciences and Technology, Trivandrum (Amendment) Act, The Warehousing Corporations (Amendment) Act, The High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, The Criminal Law (Amendment) Act, The Government of Union Territories and the Government of National Capital Territory of Delhi (Amendment) Act, The Contempt of Courts (Amendment) Act, The Reserve Bank of India (Amendment) Act, The Salary, Allowances and Pension of Members of Parliament (Amendment) Act, The Banking Companies (Acquisition and Transfer of Undertakings and Financial Institutions Laws(Amendment) Act, The Essential Commodities (Amendment) Act, 2006 Sections 2 to 5.

14 The Banking Regulation (Amendment) Act, The National Tax Tribunal (Amendment) Act, The State Bank of India (Subsidiary Banks Laws) Amendment Act, The State Bank of India (Amendment) Act, The Inland Vessels (Amendment) Act, The Merchant Shipping (Amendment) Act, The Sugar Development Fund (Amendment) Act, The Salaries and Allowances of Officers of Parliament(Amendment) Act, The Code of Criminal Procedure (Amendment) Act, The Supreme Court (Number of Judges) Amendment Act, The Agricultural and Processed Food Products Export Development Authority (Amendment) Act, The High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, The State Bank of Saurashtra (Repeal) and the State Bank of India (Subsidiary Banks) Amendment Act, 2009 Sections 3 to The State Bank of India (Amendment) Act, The Salary, Allowances and Pension of Members of Parliament (Amendment) Act, The Code of Criminal Procedure (Amendment) Act, The Indian Medicine Central Council (Amendment) Act, The State Bank of India (Subsidiary Banks) Amendment Act, The State Bank of India (Subsidiary Banks Laws) Amendment Act, The New Delhi Municipal Council (Amendment) Act, The Life Insurance Corporation (Amendment) Act, The Export-Import Bank of India (Amendment) Act, The North-Eastern Areas (Reorganisation) and Other Related Laws (Amendment) Act, The Chemical Weapons Convention (Amendment) Act, 2012

15 The Enforcement of Security Interest and Recovery of Debts Laws Amendment) Act, The Banking Laws (Amendment) Act, The Wakf (Amendment) Act, 2013