This article has been written by Mahima Singh, a student of Faculty of Law, Delhi University. When the Legislature passes a law that is in conflict with the provisions of an existing law, the question that arises is whether the existing law would continue to remain in force or will it stand abrogated. This article seeks to explain the doctrine of express repeal and implied repeal, and also addresses the issue regarding whether a special law would always enjoy primacy over a general law.

Introduction

Repeal can be defined as the abrogation or revocation of an existing law by legislative action. Over the years, there have been numerous legal developments leading to the introduction of fresh legislation that may or may not repeal the existing laws that are already in force. Such repeal sometimes becomes necessary in order to suit the changing needs of the society. 

Types of Repeal

There are mainly two types of repeal: express repeal and implied repeal.

Express Repeal

In the case of express repeal, the statute expressly mentions that an earlier law will no longer be applicable, and thus would be inoperative. The Legislature doesn’t need to use any particular words or phrases, but it must make its intention to repeal the statute in question clear. Generally, phrases like “shall cease to have effect” or “all provisions that are inconsistent with this Act are hereby repealed” are used in the later statute to repeal an existing statute. Statutes may have separate repealing provisions that expressly state how that Act shall have an overriding effect over earlier enactments that may be in conflict with it or are dealing with the same subject matter. When the subsequent legislation contains a repealing provision stating that certain sections or Acts shall be repealed, it amounts to express repeal. This is based on the Latin maxim, “expressio unius persone vel rei est exclusio alterius”, which means express mention of a thing or person is the exclusion of another.[1]

For example, Section 4 of the Hindu Marriage Act, 1955 [2] states:

Overriding effect of Act – Save as otherwise expressly provided in this Act: 

(a) any test, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act. 

(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act. 

There may also be instances of partial repeal where only specific provisions or part of the legislation may be abrogated by a subsequent statute. 

Implied Repeal

In the case of implied repeal, no such express indication is provided by the Legislature as it is based on presumption or inference. The doctrine of implied repeal is based on the Latin maxim “leges posteriores priores contrarias abrogant”, which means that the later laws shall abrogate the earlier laws that are contrary or in conflict with the subsequent laws. This usually applies to cases where two or more statutes are mutually inconsistent to such an extent that it becomes impossible for them to be in force concurrently. However, this doctrine must be applied only when there is no possibility of harmonious construction of the conflicting laws and the two cannot stand together. Thus, a repeal may not be necessarily inferred if the two Acts can be read together. 

The importance of the doctrine of implied repeal is evident while dealing with the principle of double jeopardy. A single act or omission may attract more than one provision. As a result, one may think that the accused can be prosecuted under two or more statutes. However, Section 26 of The General Clauses Act, 1897 [3], which has been reproduced below, is a provision that deals with offences that are punishable under two or more enactments. 

“Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.” 

On the other hand, Article 20 (2) of the Constitution of India [4] states that:

“No person shall be prosecuted and punished for the same offence more than once.” 

In such a scenario, if the subsequent enactment varies the penalty or procedure for a given offence, then the former statute dealing with the same offence is abrogated by implication. 

Relevant case law

In the State of M.P. v. Kedia Leather & Liquor Ltd. and Ors [5], the Hon’ble Supreme Court observed that there is a presumption against repeal by implication. This is based on the view that while enacting laws on a particular subject, the Legislature has a thorough knowledge of the laws that are already in force on that subject; therefore, the absence of a repealing provision in the subsequent law would imply the intention of the Legislature that the existing provision should not be repealed. Moreover, the Legislature would never intend to create confusion by retaining conflicting provisions. 

Therefore, the issue that needs to be addressed is whether or not the later statute would automatically repeal or nullify the earlier statute. In order to determine the application of implied repeal, the following three issues need to be addressed:

(1) Whether there is a direct conflict between the two provisions in question.

(2) Whether the Legislature had an intention to lay down an exhaustive code in respect of the subject matter replacing the earlier statute.

(3) Whether the two legislations fall within the same field. [6]

In order to determine the aforementioned issues, there is a need to examine and compare the object, scope, true meaning, and effect of the enactments in question. 

In M/s Gammon India Ltd. v. Spl. Chief Secretary and Ors. [7], the Court observed that if the legislative intent to supersede the earlier law is manifested by the enactment of provisions as to effect such supersession, then it would amount to a repeal, notwithstanding the absence of the word ‘repeal’ in the later statute. In other words, the intention of the Legislature has to be inferred from the later statute to see if it proposed to preserve, modify, or completely obliterate the rights and liabilities attached to the earlier statute. This applies to both express as well as implied repeal. Thus, an analysis of the relevant authorities and case laws makes it clear that whenever an enactment is repealed and is accompanied by a simultaneous re-enactment, then the re-enacted statute is a reflection of a modified version of the earlier legislation, through express or implied repeal, as the case may be. 

It must be noted that in the absence of an express provision of repeal, the onus of proving that the subsequent enactment does not seek to abrogate the former law that must remain in force, lies on the party asserting the same. This presumption can be rebutted to bring about repeal by necessary implication, especially when the two enactments are irreconcilable and the subsequent enactment is an exhaustive code in itself. For this purpose, it would be essential for the later enactment to incorporate the entire subject matter that the former law was dealing with. 

However, there may be certain laws that are excluded from the ambit of the doctrine of implied repeal. In the Metric Martyrs case [8], the impugned Act was a constitutional statute, which by the force of common law was held to be among the class or type of legislative provisions that could not be repealed by implication, thereby upholding the supremacy of the Parliament and European law. Lord Justice Laws observed that unlike constitutional statutes, ordinary statutes may be subject to the doctrine of implied repeal. However, constitutional statutes would require express repeal by the Parliament as they are likely to touch upon fundamental rights and may also affect the citizen-State relations. 

In Zaverbhai Amaidas v. State of Bombay [9], the Constitution Bench held that no question of implied repeal arises in case of conflict between an Act of Parliament and a law of the State, as the general rule is that the former prevails over the latter. The doctrine of implied repeal is based on the principle that if the subject matter of the subsequent legislation is identical to the earlier legislation to such an extent that it becomes impossible for them to stand together, then the earlier law shall be repealed by the subsequent legislation. [10]

Special law and general law

It is not uncommon for a direct and irreconcilable conflict to arise between special laws and general laws. The distinction between a special law and a general law can be understood by considering the subject matter that the statutes are dealing with. For example, the Indian Penal Code, 1860 (IPC) [11], is a general law that covers all the substantive aspects of criminal law as it lays down the definitions of various criminal offences along with the punishments or penalties that shall be imposed for the same. On the other hand, the Information Technology Act, 2000 (IT Act), is a special law that seeks to provide legal recognition to transactions carried out by means of electronic data interchange and other means of electronic communication [12]. At the same time, the IT Act renders certain acts culpable such as data theft, hacking, defamation over the internet, obscenity, and other such online offences. These are acts of grave nature and may also amount to offences under the IPC. Thus, the question that arises is which among the two statutes shall enjoy primacy, one being a general law and the other being a special law, when there is no indication of express or implied repeal. 

In Jose Paulo Coutinho v. Maria Luiza Valentina Pereira and Ors.[13], the Court laid emphasis on the maxim ‘generalia specialibus non derogant’, which means that while interpreting two statutes that are in apparent conflict, the general statute shall yield to the special law when the two are dealing with the same subject in the same field. Another well-known maxim on the same lines is ‘lex specialis derogat legi generali’, which means that the special law repeals general laws. Thus, as a general principle, special law prevails over general law as the special law tends to focus on a particular subject in greater detail. 

However, in R.S. Raghunath vs. State of Karnataka and Ors.[14], the Court put forward an exception to this rule by stating that if the subsequent general law indicates a clear intention to supersede a pre-existing special law, then the general law would prevail over the special law. At the same time, it was observed that a special law cannot be repealed by mere implication unless the Legislature makes provisions that are wholly inconsistent or it is expressly abrogated by a subsequent legislation. The Court further observed that a general law may also contain special provisions dealing with certain matters, and thus to that context it may be termed as a special law. 

However, the Courts must not mechanically uphold a special law over a general law in all cases unless the two statutes are completely incapable of reconciliation. For instance, in State of Uttar Pradesh v. Aman Mittal. [15], the matter involved the IPC, which is a general statue, and the Legal Metrology Act, 2009 [16] which is a special statute dealing with the use of weights and measures. The Legal Metrology Act, 2009, did lay down offences for altering or tampering with any standard weights or measures, but it did not provide for certain offences like criminal conspiracy and vicarious liability, which are covered under Sections 120A and 120B, and Section 34 of the IPC respectively. Similarly, the Legal Metrology Act did not lay down any provisions for the offence of cheating, which is defined under Section 415 of the IPC. The Hon’ble Supreme Court held that since such offences were not covered within the ambit of the provisions of the Legal Metrology Act, the relevant provisions of the IPC could be maintained despite being a general law. 

Similarly, in State of Arunachal Pradesh v. Ramachandra Rabidas @ Ratan Rabidas and Anr.[17], the Apex Court held that road traffic offences can be prosecuted under both the IPC, which is a general statute, as well as the Motor Vehicles Act, 1988 [18], which is a special statute dealing with offences involving motor vehicles. This was based on the premise that the two statutes operate in entirely different spheres, and the offences under both are separate and distinct, with distinct ingredients and penal consequences [19].

The Hon’ble Supreme Court categorically discouraged trial courts from invoking their jurisdiction under general law in cases where the parties have agreed to resolve their disputes under a special law, as such an approach would unnecessarily increase the pendency in courts [20]. Thus, when the agreement contains an arbitration clause specifying that in case of a dispute, the matter shall be referred to arbitration, if one of the parties approaches the civil court instead, the court may refer the parties to arbitration in exercise of its powers under Section 8 of the Arbitration and Conciliation Act, 1996 [21] which is a special law specifically dealing with matters of arbitration. 

Conclusion

Therefore, as per the golden rule of interpretation, words should be read by keeping in mind their ordinary, natural, and grammatical meaning.[22] When there is a general provision of law dealing with a particular subject on one hand and a special provision of law dealing with the same subject, the first attempt should be to apply the principle of harmonious construction, failing which the special law shall prevail over the general law. 

References

1. Garnett v. Bradley (1878) 3 AC 944 (HL).
2. The Hindu Marriage Act, 1955 (Act 25 of 1955), s.4
3. The General Clauses Act, 1897 (Act 10 of 1897), s.26.
4.  The Constitution of India, art. 20.
5. Criminal Appeals Nos. 151-58 of 1996.
6. Criminal Appeals Nos. 151-58 of 1996.
7. Civil Appeal No. 1148 of 2006.
8. Thoburn v Sunderland City Council (2002) EWHC 195 (Admin).
9. (1955) SCR 799.
10. Pt. Rishikesh & Anr. v. Salma Begum (Smt.) Civil Appeal No. 1266 of 1979.
11. The Indian Penal Code, 1860 (Act 45 of 1860).
12. The Information Technology Act, 2000 (Act 21 of 2000).
13. Civil Appeal No. 7378 of 2010.
14.  1992 AIR 81.
15. Criminal Appeal Nos. 1328-1329.
16. The Legal Metrology Act, 2009 (Act 1 of 2010).
17. Criminal Appeal No. 905 of 2010.
18. The Motor Vehicles Act, 1988 (Act 59 of 1988).
19. Bharat Chugh and Ishan Dewan, “Criminal Law and the Fetishization of the General/Specific Canon of Interpretation,” Bar and Bench, January 19, 2020, available at https://www.barandbench.com/columns/criminal-law-and-the-fetishization-of-the-generalspecific-canon-of-interpretation (last visited on May 15, 2020).
20. Press Trust of India, “Special law should prevail over general law: SC,” Business Standard, February 20 2015, available at https://www.business-standard.com/article/pti-stories/special-law-should-prevail-over-general-law-sc-115022001410_1.html (last visited on May 21, 2020).
21. The Arbitration and Conciliation Act, 1996 (Act 26 of 1996), s.8.
22. St. Stephens’s College v. University of Delhi, (1992)1 SCC 558. 

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