Expiry and Repeal of Statute Flashcards
What is a perpetual statute?
When no time is fixed is fixed for its duration
It remains in force until it is repealed expressly or impliedly
Can a temporary statute after expiry date be revived?
It cannot be made effective by merely amending the same.
The only manner to revive is
1. By re-enacting a statute in similar terms
2. By expressly stating that expired act is herewith revived
Can legal proceedings under an expired act be continued or initiated after act is expired.
Generally Proceedings taken against a person under a temporary statute ipso facto terminates as soon as statute expires.
This can be avoided if enactments have the saving clause.
If a prosecution is not ended before the expiration of the act it will AUTOMATICALLY TERMINATE
Expiry does not make statute dead for all purposes
- Even in the absence of a saving clause, the nature of rights and obligations resulting from the provisions of the temporary act and their character may have to be considered before considering if they’re enduring or not.
- A person who has been prosecuted therefore cannot be released before he serves his sentence, even if the temporary statute expires before the expiry of full period.
Does the repealed statute revive on the expiry of the repealing statute?
Justice Gajendagadkar observed that the intention of the temporary act in repealing the earlier act will have to be considered on a case by case basis. There is no general rule.
Presumption against implied repeal
Reason?
What happens when the legislature does not enumerate the acts sought to be repealed and only mentions “All provision inconsistent with this act are hereby repealed”?
Courts are to determine whether earlier provisions are repealed on the grounds of inconsistency
State of Kerala v. Mar Appraen Kure Company
Make Notes
Burden of proof in asserting implied repeal
Lies on the party who asserted the same.
Must be proved that
- Provisions of the later acts are inconsistent with earlier acts
- The two cant’ stand together
If this fails, the existing legislature will continue. A repeal will not be inferred if the two may be read together. [Ratanlal Adukia v. UOI]
Supreme Court’s test to apply implied repeal
- Is there a direct conflict between the two provisions?
- Whether the legislature intended to lay down an exhaustive code in respect of the subject matter replacing the earlier laws?
- Whether the two laws occupy the same field.
[Municipal Council, Palai v. TJ Joseph]
When prior general law exists and later special law is enacted?
The particular act is considered as an exception or qualification to the general law, read together
What if subject matter of the particular act prior to its enforcement was governed by general law?
Partial repealing of general law
What is there is prior particular law and later general law
General laws applies to all persons and localities within its jurisdiction and scope
Application of implied repeal in special law
Prior special law is not presumed to be repealed by general law unless expressly repealed!
Court tries to give effect to both enactments as far as possible
