The Doctrine Of Implied Repeal - An Essential Component Of Parliament Supremacy?
Chetna Alagh
13 March 2024 4:44 AM GMT
The Indian Parliament has absolute sovereignty to enact or repeal any law. What is important to the Parliament's supremacy is that the predecessor's act cannot bind the successor's action. In this backdrop, the principle of the “Doctrine of Implied Repeal” comes into the picture. It states that “if an Act of the Parliament is in conflict with an earlier Act, the latter is deemed...
The Indian Parliament has absolute sovereignty to enact or repeal any law. What is important to the Parliament's supremacy is that the predecessor's act cannot bind the successor's action. In this backdrop, the principle of the “Doctrine of Implied Repeal” comes into the picture. It states that “if an Act of the Parliament is in conflict with an earlier Act, the latter is deemed to have repealed the earlier one, by implication.”
Derived from the latin maxim "leges posteriores priores contrarias abrogant" meaning that the subsequent law repeal prior conflicting law, this doctrine signifies that the intent of the legislature to repeal earlier laws can be inferred from the enactment of the later legislation. It serves as a guiding light for promoting uniformity and consistency within the legislative framework. The significant basis of this doctrine is that the legislature is always aware of the law that exists and therefore, it makes an effort to avoid making laws that can be in conflict with the earlier law so that coherence and clarity are preserved within the legal system.
It is pertinent to enunciate that Section 6 of the General Clauses Act, 1897, throws light upon the fact that whenever any Central Act or Regulation repeals a prior enactment, it will not impact any actions taken under the repealed enactment or its previous operation unless a clear and present contrary intention is demonstrated. It also protects rights, benefits, duties, liabilities, fines, forfeitures, and penalties earned, accumulated, or suffered under the repealed act. To ensure continuity and preservation of legal rights and obligations, legal proceedings, investigations, and remedies pertaining to such matters may be started, pursued, or enforced as if the repealing Act or Regulation had not been passed. However, the doctrine of implied repeal comes into effect when a clear intention is demonstrated by the lawmakers vis-à-vis the enactment of the later legislation and its impact on the previous legislation.
The Supreme Court had the occasion to deal with the doctrine of implied repeal in a catena of judgments. In the case of Harshad S. Mehta v. State of Maharashtra, (2001) 8 SCC 257, it was observed that the test to determine the issue of implied repeal is whether the act is inconsistent with the earlier act, that the two acts cannot stand together or the two acts only supplement each other. The intention can be garnered from the features of the new act and the court generally lean against implied repeal. When the new law is incompatible with the old law, meaning that the two statutes cannot be reconciled, the presumption against the intent to repeal by implication cannot be applied. When the legislature does not include a repealing provision, it indicates that it does not intend to repeal the current legislation. The onus of proving that the repeal by implication is feasible rests with the party making the claim. It is always assumed that the legislature is fully aware of all existing laws at the time of passing legislation.
Furthermore, the Supreme Court in Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Supp SCC 285 held that the repeal of a law through implication can be gathered only when the new legislation overrules the previous legislation. This stance of the Supreme Court was also strengthened in Lal Shah Baba Dargah Trust v. Magnum Developers and Ors. (2015) 17 SCC 65.
In Municipal Council, Palai v. T. J. Joseph, AIR 1963 SC 1561, it was held that the legislature can exercise the power of repeal by implication. The new statute cannot reconcile with the earlier statute is an important condition for the doctrine of implied repeal to set in.
In AICTE v. Shri Prince Shivaji Maratha Boarding House's College of Architecture, (2021) 12 SCC 629, it was held that there is always a presumption against a repeal by implication and the legislature has complete comprehension of the laws existing on the subject matter which is why the repeal of the earlier law can be garnered from the subsequent legislation but at the same time if the repealing provision is not provided, it conveys an intention of no repeal. The same is rebuttable and the party who wants to show that there is a repeal by implication carries the burden to prove the same.
The upshot of the aforementioned legal precedents is that there is always a presumption against repeal by implication and the legislature has complete knowledge of the existing enactments while making a new enactment on the same subject-matter. When the legislature does not provide a provision for repeal, it conveys a notion that there is no intention to repeal the previous legislation. However, if the two acts are inconsistent with each other, the possibility of implied repeal emerges and this intention is to be understood from the provisions of both the legislations. In the context of the European Legislations, it can be inferred that the Parliament can enact laws that can limit the effect of subsequent enactments unless they are specifically repealed.
The necessary queries that the courts might take into consideration while applying the doctrine of implied total are whether there is a conflict between the two laws, whether the legislature intends to make an exhaustive law in respect of the earlier law, and whether the two legislations occupy the same field. The legislature does not want to create any kind of confusion by making any conflicting legislation and has full awareness of all existing laws. The courts need to bear in mind that the intention of the legislature has to be given effect to, by examining the ambit and the sweep of the two legislations and by drawing a comparison of their provisions. The fulcrum of the doctrine is one of construction, comparison, and implication of the two legislations.
From the conspectus of the above discussion, it can be stated that to determine whether a later legislation repeals an earlier one by implication, it is imperative to carefully consider the ambit and sweep of both the enactments and see if there is any inconsistency that lies between the two. The continuance of the earlier legislation in the absence of any provision of repeal lies on the party that is asserting the same which can be refuted, when the later act and the earlier act are inconsistent with each other, the doctrine of implied repeal emerges in the interpretation of the same. Hence, the presumption of implied repeal remains a vital tool for the courts of law while checking the two enactments. It is the duty of the courts to make rational conclusions while invoking the doctrine of implied repeal which upholds the supremacy of the parliament and promotes consistency within the legislative landscape.
Views are personal.
