Presumption against a repeal by implication
There is presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject-matter, and therefore, when it does not provide a repealing provision, the intention is clear not to repeal the existing legislation. (See: Municipal Council, Palai through the Commissioner of Municipal Council, Palai vs. T. J. Joseph (AIR 1963 SC 1561), Northern India Caterers (Private) Ltd. and another vs. State of Punjab and another (AIR 1967 SC 1581), Municipal Corporation of Delhi vs. Shiv Shanker (1971) 1 SCC 442 and Ratan Lal Adukia and another vs. Union of India (AIR 1990 SC 104). When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strenghtened on the principle expressio unius (persone vel rei) est exclusio alterius (The express intention of one person or thing is the exclusion of another), as illuminatingly stated in Garnett vs. Bradley, (1878) 3 AC 944 (HL). The continuance of existing legislation, in the absence of an express provision of repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act and that the two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred. (See: A. G. vs. Moore (1878) 3 Ex D 276, Ratanlal’s case (supra) and R. S. Raghunath vs. State of Karnataka and another (AIR 1992 SC 81).
The necessary questions to be asked are :
(1) Whether there is direct conflict between the two provisions.
(2) Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law;
(3) Whether the two laws occupy the same field.
(See : Pt. Rishikesh and Anr. vs. Salma Begum (Smt.) (1995) 4 SCC 718 and Shri A. B. Krishna and Ors. vs. The State of Karnataka and Ors. JT 1998 (1) SC 613.
The doctrine of implied repeal is based on the theory that the Legislature, which is presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions and, therefore, when the Court applies the doctrine, it does not more than give effect to the intention of the Legislature by examining the scope and the object of the two enactments and by a comparison of their provisions. The matter in each case is one of the construction and comparison of the two statutes. The Court leans against implying a repeal, “unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied, or that there is a necessary inconsistency in the two Acts standing together”. (See Craies on Statute Law, Seventh Edition, page 366, with reference to Re : Berrey, (1936) Ch 274). To determine whether a later statute repeals by implication an earlier, it is necessary to scrutinize the terms and consider the true meaning and effect of the earlier Act. Until this is done, it is impossible to ascertain whether any inconsistency exists between the two enactments. The areas of operation of the Act and the Establishments Act in question are different with wholly different aims and objects. They operate in their respective fields and there is no impediment for their existence side by side. (See State of M.P. vs. Kedia Leather and Liquor Ltd. and Ors., 2003 (6) Supreme 213).
It is to be noted that there is no direct conflict between any of the provisions of the two statutes. The determinative test as noted above is whether the enactments are sharply conflicting or are inconsistent and/or repugnant. In the instant case it is not so. The operation of the Act is not restricted in its area of operation by what is provided in the Establishments Act and vice versa. Absence of some provisions in another Act does not amount to conflicting provision or inconsistent provision amounting to repugnancy of such provision[AIR 2004 SC 1006 : (2003) 5 Suppl. SCR 1 : (2003) 12 SCC 274 : JT 2003 (8) SC 399 : (2003) 9 SCALE 119]
Categories: Judicial Dictionary