What is the effect upon pending proceedings when an Act was repealed or when a temporary Act expired
In Craies on Statute Law, the effect of the expiry of a temporary Act is stated to be as follows:
“As a general rule, and unless it contains some special provision to the contrary, after a temporary Act has expired no proceedings can be taken upon it, and it ceased to have any further effect. Therefore, offences committed against temporary Acts be prosecuted and punished before the Act expires, and as soon as the Act expired any proceedings which are being taken against a person will ipso facto terminate.” (pp. 347, 348, 4th Edn.)
11. This statement of law by Craies was referred to with Approval and adopted by the F. C. in J. K. Gas,Plant Manufacturing Co., (Rampur), Ltd. v. Emperor, (1947) F.C.R. 141. As to the effect of the repeal of an Act, the following passage from Craies’ book seems to sum up the legal position as it obtained in England before the enactment of the Interpretation Act of 1889:
‘When an Act of Parliament is repealed,” said Lord Tenterden in Surtees v. Ellison, (1829) 9 B. and C. 750, (7 L. J. K. B. 335), “it must be considered (except as to transactions past and close d) as if it had never existed. That is the general rule.” Tindal C. J. states the exception more widely. He says (in Kay v. Goodwin, (1830) 6 Bing. 576, (8 L.J.C.P. 212):”The effect of repealing a statute is to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law.” (p. 350).
12. Again, Crawford in his book on “Statutory Construction” dealing with the general effect of the repeal of an Act states the law in America to be as follows:
“A repeal will generally, therefore, divest all inchoate rights which have arisen under the repealed statute, and destroy all accrued causes of action based thereon. As a result, such a repeal, without a saving clause, will destroy any proceeding, 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 right” (pp. 599-600).
13. In a foot-note relating to the cases which the learned author cites in support of the above proposition, he adds:
“See Cleveland, etc., R. Co. v. Numford (Ind.), (197 N. E. 826), where the repeal of a Statute during the trial prevented a judgment from being rendered. Similarly, there can be no legal conviction for an offence, unless the act be contrary to law at the time it is committed ; nor can there be a judgment, unless the law is in force at the time of the indictment and judgment. If the law ceases to operate, by its own limitation or by a repeal, at any time before judgment, no judgment can be given. Hence, it is usual in every repealing law to make it operate prospectively only, and to insert a saving clause, preventing the retroactive operation of the repeal and continuing the repealed law in force as to all pending prosecutions and often as to all violations of the existing law already, committed.”
14. The author then proceeds to quote the following passage from Wall v. Chesapeake and Ohio Ry. Co., (125 N. E. 20):
“It is well settled that if a Statute giving a special remedy is repealed without a saving clause in favour of pending suits all suits must stop where the repeal finds them. If final relief has not been granted before the repeal went into effect, it cannot be after. If a case is appealed, and pending the appeal the law is changed, the appellate Ct. must dispose of the case under the law in force when its decision was rendered. The effect of the repeal is to obliterate the Statute repealed as completely as if it had never been passed, and it must be considered as a law which never existed, except for the purposes of those actions or suits which were commenced, prosecuted and concluded while it was an existing law. Pending judicial proceedings based upon a Statute cannot proceed after its repeal. This rule holds true until the proceedings have reached a final judgment in the Ct. of last resort, for that Ct., when it comes to announce its decision, conforms it to the law then existing, and may, therefore, reverse a judgment which was correct when pronounced in the subordinate tribunal from whence the appeal was taken, if it appears that pending the appeal a Statute which was necessary to support the judgment of the lower Ct. has been withdrawn by an absolute repeal.” (p. 601).
15. It is well known that formerly the practice in England used to be to insert in most of the repealing Statutes a clause saving anything duly done or suffered under the repealed Statutes and any pending legal proceedings or investigations. Ultimately, to dispense with the necessity of having to insert a saving clause in almost every repealing Act, S. 38(2) was inserted in the Interpretation Act, 1889, which provides that a repeal, unless the contrary intention appears, does not affect the previous operation of the repealed enactment or anything duly done or suffered under it, and any investigations, legal proceedings or remedies may be instituted, continued or enforced in respect of rights, liabilities and penalties under the repealed Act, as if the repealing Act had not been passed.
16. Crawford in his book to which I have referred adverts in these words to a similar difficulty which was experienced in America and to the manner in which it has been met:
“Due to the numerous troublesome problems which constantly arose with the repeal of Statutes, as well as to the numerous cases where hardship was caused, Statutes have been enacted in several States expressly providing that the report of a Statute shall not affect any rights causes of action, penalties, forfeitures, and pending suits, accrued or instituted under the repealed statute.”
17. In India, the earliest attempt that was made to guard against the normal legal effect of a repeal is to be found in S. 6 of Act I [1] of 1868. This provision was further elaborated by S. 6, General Clauses Act of 1897 which is on the same lines as S. 38(2), Interpretation Act of England. The position, therefore, now in India as well as in England is that a repeal has not the drastic effect which it used to have before the enactment of the Interpretation Act in England or the General Clauses Act in this country. But this is due entirely to the fact that an express provision has been made in those enactments to counteract that effect. Hence, in those cases which are not covered by the language of the General Clauses Act, the principle already enunciated will continue to operate. The learned Attorney-General had to concede that it was doubtful whether S. 6 of that Act is applicable where there is a repeal by implication, and there can be no doubt that the law as to the effect of the expiry of a temporary Statute still remains as stated in the books, because S. 6, Genera1 Clauses Act, and S. 38 (2), Interpretation Act have no application except where an Act is repealed. It should be remembered that the soundness of the law which has been consistently applied to cases governed by Statutes which have ceased to be in force, by reason of having been repealed or having expired, has never been questioned, and it cannot be brushed aside as if it embodied some archaic or obsolete rule peculiar only to the Common Law of England. It is the law which has been enunciated by eminent Judges both in England and in America and is based on good sense and reason,
18. I shall now proceed to Consider what would be the correct legal position, when a provision of an existing law is held to be void under Art. 13 (1) of the constitution. From the earlier proceedings before the Constituent Assembly, it appears that in the original draft of the constitution, the words “shall stand abrogated” were used instead of “shall be void,” in Art. 13 (1), and one of the questions directly before the Assembly was what would be the effect of the use of those words upon pending proceedings and anything duly done or suffered under the existing law. Ultimately, the Article emerged in the form in which it stands at present, and the words “shall stand abrogated” were replaced by the words “shall be void.” If the words “stand abrogated” had been there, it would have been possible to argue that ‘those words would have the same effect as repeal and would attract S.6, General Clauses Act, but those words have been abandoned and a very strong expression, indeed the strongest expression which could be used, has been used in their place. The meaning of the word “void” is stated in Black’s Law Dictionary (3rd E dn.) to be as follows:
“null and void ; ineffectual ; nugatory ; having no legal force or binding effect ; unable in law to support the purpose for which it was intended ; nugatory and ineffectual so that nothing can cure it ; not valid.”
19. A reference to the constitution will show that the framers thereof have used the word “repeal’’ wherever necessary (see Arts. 252, 254, 357, 372 and 395). They have also used such Words as “invalid” (See Arts. 245, 255 and 276), “cease to have effect” (see Arts. 358 and 372), “shall be inoperative,” etc. They have used the word “void” only in two articles, these being Art. 13 (1) and Art. 154, and both these articles deal with cases where a certain law is repugnant to another law to which greater sanctity is attached. It further appears that where they wanted to save things done or omitted to be done under the existing law, they have used apt language for the purpose; ( see for example Arts. 249, 250, 357, 358 and 369. The thoroughness and precision which the framers of the constitution have observed in the matters to which reference has been made, disinclines me to read into Art. 13 (1) a saving provision of the kind which we are asked to read into it. Nor can I be persuaded to hold that treating an Act as void under Art. 13 (1) should have a milder effect upon transactions not past and closed than the repeal of an Act or its expiry in due course of time. In my opinion, the strong sense in which the word “void” is normally used and the context in which it has been used are not to be completely ignored. Evidently, the framers of the constitution did not approve of the laws which are in conflict with the fundamental rights, and in my judgment, it would not be giving full effect to their intention to hold that even after the constitution has came into force, the laws which are inconsistent with the fundamental rights will continue to be treated as good and effectual laws in regard to certain matters, as if the constitution had never been passed. How such a meaning can be read into the words used in Art. 13 (1), it is difficult for me to understand. There can be no doubt that Art. 13 (1) will have no retrospective operation, and transactions which are past and closed and rights which have already vested will remain untouched. But with regard to inchoate matters which were still not determined when the constitution came into force, and as regards proceedings whether not yet begun or pending at the time of the enforcement of the constitution and not yet prosecuted to a final judgment, the very serious question arises as to whether a law which has been declare by the constitution to be completely ineffectual can yet be applied. On principle and on good authority, the answer to this question would appear to me to be that the law having ceased to be effectual can no longer be applied. In R. v. Mawgan (Inhabitants), (1838) 8 Ad. and E. 496, (112 E. R. 927), a presentment as to the non-repair of a highway had been made under13 Geo, III, C. 78, S. 24, but before the case came on to be tried, the Act was repealed. In that case, Lord Denman C. J. said:
“if the question had related merely to the presentment, that no doubt is complete. But dum loquimur, we have last the power of giving effect to anything that takes plane under that proceeding.” And Littledale J. added:”I do not say that what is already done has become bad, but that no more can be done.” In my opinion, this is precisely the way in which we should deal with the present case.
Source: Keshavan Madhava Menon-AIR 1951 SC 128 : (1951) SCR 228 : (1951) CriLJ SC 860
