Affect of repealing of amendment acts

This Article is prepared from the argument submitted in a civil court in Karnataka India

On the purpose of Repealing and amendment acts

After noticing the repeal of Hindu Succession (Amendment) Act 2005 by the parliament of India by the repealing and amendment act 17 of 2015 court raised the issue of maintainability of suit filed by the daughters in India.

Background

Hindu Succession (Amendment Act) 2005 was passed by the parliament of India to amend the Hindu Succession Act 1956 by substituting section 6 in place of original section 6.

Wherein as per new section 6 daughters were given coparcenary status and given birth right in the ancestral property putting them on par with the son.

As per old section in the Hindu succession act 1956 only son was coparcener and daughters were not coparceners. Hindu Mithakshara law recognised son's birth right in the ancestral property. Who have birth right are called coparcener.

The purpose of the Hindu succession amendment act 2005 was to substitute section 6 in place of the old section and on assent by the president the same is gazetted and inserted into the Hindu succession Act 1956.

After substitution the purpose of Hindu succession amendment act 2005 is served and it existence is no more required and is to be repealed and its repeal by the repealing and amendment act 17 of 2015 does not affect the original act and the inserted section 6 will be operational even after the repeal of the Hindu succession (amendment) act 2005.

If the 1956 act to be amended it is by way another amendment act only it is to be amended and parliament should pass such act to remove section 6 after discussion.

Reasons and law is given below

1 Section 6A of the General Clauses Act is as under

“6A: Repeal of Act making textual amendment in Act or Regulation, Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal.

Section 6A of general clauses act makes provision for repeal of amendment acts and the law it amended is saved and continues to prevail and governs the concerned.

2. There is saving section in every Repealing and amendment act which safeguard the amendments made in the original act.

Section 4 of the Repealing and Amendment act 17 of 2015 as regarding the repealing of the amendment acts is as under.

“The repeal by this Act of any enactment shall not affect any Act in which such enactment has been applied, incorporated or referred to;”

3. The following cases are also held the same

a. Khuda Bux Vs Manager Caledonian press reported in law journal AIR Cal 1954 page 484.

Wherein Calcutta High court in India held (summary given below)

“The scope and effect of a repealing and amending Act. Such 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 reason for their existence. They are guarded by saving clauses drawn with elaborate care, of which Section 3 of the Repealing and Amending Act of 1950 is itself an apt illustration.

b. Jethanand betab Vs State of Delhi case reported in law journal Air 1960 Sc page No.89

Where in supreme court of India held

“The Act of 1949 inserted s. 6 (1 -A) in the Act of 1933. The 1949 Act was repealed by the 1952 Act, but the latter Act saved the operation of other enactments in which the repealed enactment has been applied, incorporated or referred to. The first question that arises for consideration is whether the amendments inserted by the 1949 Act in the 1933 Act were saved by reason of s. 4 of the 1952 Act.

Court Held referred to Halsbury's Laws of England, 2nd Edition, Vol. 31, at p. 563, thus: 'A statute Law Revision Act does not alter the law, but simply strikes out certain enactments which have become unnecessary.

Apex Court referred to ' Khuda Bux v. Manager, Caledonian Press referred above and approved the same and held.

It is, therefore, clear that the main object of the 1952 Act was only to strike out the unnecessary Acts and excise dead matter from the statute book in order to lighten the burden of ever increasing spate of legislation and to remove confusion from the public mind. THE object of the Repealing and Amending Act of 1952 was only to expurgate the amending Act of 1949, along with similar Acts, which had served its purpose.  The next question is whether s. 4 of the Act of 1952 saved the operation of the amendments that had been inserted in the Act of 1933 by the repealed Act.  The relevant part of s. 4 only saved other enactments in which the repealed enactments have been applied, incorporated or referred to.

Court referred to statement made in Maxwell on Interpretation of Statutes, 10th Edition, page 406: Where the provisions of one statute are, by reference, incorporated in another and the earlier statute is afterwards repealed the provisions so incorporated obviously continue in force so far as they form part of the second enactment.'

Referred  to Craies on Statute Law, 3rd Edition, the same idea is expressed in the following words, at p. 349: ' Sometimes an Act of Parliament, instead of expressly repeating the words of a section contained in a former Act, merely refers to it, and by relation applies its provisions to some new state of things created by the subsequent Act. In such a case the rule of construction is that where a statute is incorporated by reference into a second statute, the repeal of the first statute by a third does not affect the second '.

Hence finally held that the Section 6 (1-A) inserted by the Indian wireless telegraphy act amending act 1949 into the wireless Telegraphy act 1933 will continue to operate in spite of repeal of amending act 1949.

c.  Jaipal Singh Vs State of Uttar Pradesh reported in law journal CrLJ 1990 page 2504 of Allahabad high court.

Wherein question was “section 498A of the penal code was incorporated in the code by criminal amendment act 46 of 1983. Since this act has been repealed by the repealing and amending act 19 of 1988, the said section 498-A is not longer on statute book, therefore the applicant could not be arrested and prosecuted under the said section.

The court referred to Khuda Bux case and opined that the said view is approved by the apex court with authority in the Jethanand case referred to above and summed up its view on the repeal of the amending act as under.

“Interpreting this provision the Hon'ble Supreme Court of India has said that after the Section was incorporated the amending Act had served this purpose and there was no necessity of continuing it on the statute book. Despite passing of repealing and amending Act, it was observed that, Section 6(1-A) of the Indian Wireless and Telegraphy Act continued in existence in the statute book. Consequently the conviction was maintained even though the offence u/s 6(1-A) of the Act had been committed after enactment of the repealing and amending Act of 1952. Court held “Supreme Court had approved the dictum laid down in the case of Khuda Bux by Calcutta High Court. The Supreme Court had also referred to judicial committee in Secretary of State v. Hindustan Co-operative Insurance Society, AIR 1931 PC 149”.

And finally held that

Considering the law laid down in the above mentioned cases I find no force in the contention of the applicant that Sec. 498-A cannot be deemed to be in existence at the present”

In spite of repeal of amending act by which that section is inserted the court held that the section continues on the statute book and arrest is correct.

d. State of Karantaka Vs Subhas reported in law journal Kantlj 1991 vol.2 page 132

Wherein the question was whether the insertion made by the criminal procedure (Amendment) act 1978 for the word sixty days the words Ninety days “to file charge sheet still operates in view of repeal of the amending act 1978 by the repealing and amending act of 1988.

The court referred to section 6A of general clauses act, followed Khuda Bux case and Jethanand case and finally held that

“Therefore, I find considerable force in the argument of Sri Y.R. Jagadeesh, learned High Court Government Pleader, that there is no force in the stand taken by the respondents in their application and also the argument advanced by their learned Counsel Sri Vishwanath that the Repealing Act has completely wiped out the amendments incorporated in the Code by the Amending Act thereby restoring the words "sixty days" occurring in Section 167(2) of the Code before the words "ninety days" were substituted in place of "sixty days" by the Amending Act,

Court further held it would be necessary to mention here that Sri Vishwanath did not bring to my notice any Decision in support of his above mentioned contention. Therefore, the resultant position is that the prosecution was entitled to file charge -sheet within "ninety days" from the date of arrest of the respondents -applicants and as a matter of fact, charge sheet was filed within "ninety days" from the date of their arrest on 4 -12 -1989. That being so, the learned Sessions Judge was not justified in ordering the release of the respondents on bail by acting under Section 167(2) of the Code. Consequently, I hold that the respondents have not made out any case for reviewing the order of this Court dated 27 -11 -1990.

e. K.K.Vasudeva Kurup Vs Union of India reported in law journal Air Bom 2003 page 64.

Where in the petitioner who was lawyer filed PIL writ petition seeking direction to lower courts not to take cognisance as Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 has been repealed by the Repealing and amending act 30 of 2001.

The argument of the petitioner in this case was that since the Amending Act of 1988 is repealed as "the whole", the provisions of Chapter XVII   i.e. sections 138 to 142 also stood repealed. Appropriate directions, therefore, are required to be issued to the respondents not to take cognizance of any such offence alleged to have been committed under the aforesaid sections.

Court held

In our opinion, there is misconception on the part of the petitioner in raising a contention that the provisions of sections 138 to 142 of the Original Act have been repealed and the case is governed by section 6 of the General Clauses Act, 1897 and sections 138 to 142 cannot remain operative. In our opinion, the relevant section applicable to the instant case is section 6-A of the Act and not section 6 thereof.

Court  referred to 6A ..........of General clauses act extracted in this article at the starting.

Court Referred to Khuda Bux case and jethanand

Finally held

“In our considered opinion, the ratio laid down in Jethanand Betab directly covers the case on hand and answers the question raised before us by the petitioner. To us, it is clear that once an amendment was made in 1881 Act by the Amending Act of 1988 and it had been brought into force, it has served its purpose and amended the Original Act. Its object was to plant necessary amendment in the 1881 Act. Once such planting has been effected, the Amending Act (Planting Act) having achieved its object, lost its efficacy. It was thereafter not necessary to continue the Amending Act in a statute book. There are several such Amending Acts under which amendments have been made in Original Acts. Once the plant takes root in the Original Act, an appropriate step is required to be taken by the legislature. If no action is taken, hundreds and thousands of such Amending Acts continue to remain in statute books. A device is, therefore, adopted by the Legislature to repeal all such Amending Acts, which would repeal only those Acts, i. e. Amending Acts. But such repeal does not affect original Acts which already stood amended. As observed in (Clarke v. Bradlough) 1881 (1) Q. B. D. 63, "where a statute is incorporated, by reference, into a second statute, the repeal of the first statute by a third does not affect the second".

Court finally held

In our view, therefore, the contention of the petitioner is not well-founded and cannot be upheld. The amendment made in the Original Act of 1881 by the Amending Act of 1988 remains in force and repeal of Amending Act in 2001 has not affected the amendment. The contention is, hence, rejected.

Court also held

There is an additional reason for holding that the Repealing and Amending Act, 2001 will not affect the amendment already made by the Amending Act of 1988 in the Original Act of 1881. Section 4 of the Repealing and Amending Act saves the operation of the amendments inserted in the original Act by the Repealed Act. The amendments, therefore, are clearly covered by the saving clause of section 6-A of the General Clauses Act. In Jethanand Betab, the Supreme Court indicated that such provision (section 4) is "designed to provide for a different situation, namely, the repeal of an earlier Act which has been applied, incorporated or referred to in a later Act. Under that section the repeal of the earlier Act does not affect the subsequent Act".

Government advocate placed on record an Office Memorandum dated 31st May, 2002 addressed by the Deputy Legislative Council wherein it was specifically stated that the sole purpose of the Repealing and Amending Act, 2001 was to weed out unnecessary enactments, which clutter the statute book. But it would not affect the amendments made in the Act of 1881. It was also clarified by section 4 of the Repealing and Amending Act of 2001 (saving clause).

So Court held

“In our opinion, the legal position is well settled. Since the Amending Act has already been enacted and implemented by making necessary amendment and insertion in the original Act, the Amending Act has lost its utility as its purpose has already been served. Hence, the Amending Act was repealed as a whole”

f. Uhita Debsarma Vs New India Insurance Co. Reported in law journal CALLJ 2004 vol.1 page 32.

In this case question was whether repeal of Motor Vehicles (Amendment) Act, 1994 by the Repealing and Amendment Act, 2001 saved the insertion of Section 163A as introduced in the Motor Vehicles Act, 1988. Repealing and Amending Act, 2001 received assent of the President on 3rd September, 2001 and was published in the Calcutta Gazette dated September 3,2001.

The learned Judge in the Tribunal had held that by reason of the said Repealing and Amending Act, 2001 the amendment introduced in 1994 in the Motor Vehicles Act, 1988 is no longer is enforceable and therefore, Section 163A thereof introduced in the year 1994 is to be treated as not available in the Statute book and therefore, present applicant under Section 163A of the Motor Vehicles Act, is not maintainable.

Court followed the view held in the above case of K.K.Vasudeva and Held

“Therefore, in view of the provisions contained in Section 6A of the General Clauses Act and the position in law as decided by the Apex Court in the case of Jethanand Betab (supra) and reiterated by the Division Bench in the case of K. K. Vasudeva Kurup (supra), we hold that the amendment in the original Act remained in operation and did not get abrogated on introduction of Repealing and Amending Act. And set aside the judgement of the tribunal as section 163A continues on the statute book in spite of repeal of amendment act by which the section is inserted.

Message of the article

Therefore in view of the Section 6A of General Clauses act, after the purpose of amending act is fulfilled i.e. once inserted, substituted into the original act, the purpose of the amending act is fulfilled and as held by the apex court and followed in different cases and held that the repealing of the amending act is of no consequence and removal of wastage and insertion made to the Hindu succession act 1956 will continue to hold ground and daughters will continue to have right in the coparcenary property.

The Parliament in order to weed out waste acts has repealed the number of acts including the Hindu succession amending act 2005 but it does not affect the substitution made in the original act as held by the courts above.

Therefore the suit filed by the daughters for partition and separate possession regarding coparcenary property is maintainable.

Author of the article

Rudrawar Narayanreddy

Advocate Sedam Dist: Kalaburagi Karnataka India

Purpose of Repealing and amendment acts Hindu Succession (Amendment Act) 2005 Section 6A of the General Clauses Act: Repeal of Act making textual amendment in Act or Regulation, Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal. Saving section in every Repealing and amendment act which safeguard the amendments made in the original act.

Suit filed by the daughters for partition and separate possession regarding coparcenary property is maintainable.

 

Published in Constitutional Law
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