Language of Law

8/12/2019 Language of Law

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LANGUAGE OF LAW

TOPICDistinguish Repealed law from the law declared

Unconstitutional


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ACKNOWLEDGEMENT


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TABLE OF CONTENTS


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INTRODUCTION

The constitution of Indian explicitly establishes the doctrine of judicial review in several

Articles, such as, 13, 32, 131-136, 143,226 and 246. The doctrine of judicial review is thus

firmly rooted in India, and has the explicit sanction of the Constitution. The Courts in India

are thus under a constitutional duty to interpret the constitution and declare the law as

unconstitutional if found to be contrary to any constitutional provision.1The Courts act as

sentinel on the qui vive so far as the Constitution is concerned.

The validity of a statute is to be tested by the constitutional power of legislature at the time of

its enactment by that legislature, and, if thus tested, it is beyond the legislative power, it is not

rendered valid without re-enactment, if later, by Constitutional amendment, the necessary

legislative power is granted.

The general rule of repeal that when a parent Act is repealed, and law made there under stand

repealed does not apply to laws made under Constitution. Such a law has to be expressely

repealed if it has to be effected.

The effect of sec 292, Government of Indian Act 1935, is not merely to declare that the repeal

of the Government of India Act 1915 will not affect the validity of the laws passed under thatAct, but it proceeds further and enjoins that all the laws in force in British India immediately

before the commencement of Part III shall continue in force until altered or repealed or

amended which alteration, repeal or amendment would in its turn not be with retrospective

effect.

An act of the legislature not authorised by Constitution at the time of its passage is absolutely

void, and is not validated by a subsequent adoption of an amendment to Constitution

authorising the passage of such and Act. But a void statute is rendered valid by the adoption

of a constitutional amendment which expressly ratifies and confirms it.

1Jain, M.P. (2010).Indian Constitutional Law. LexisNexis Butterworths Wadhwa Nagpur. p.2238


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1. UNCONSTITUTIONALITY

Judicial review is adopted in the Constitution of India from judicial review in the United

States. In the Indian constitution, Judicial review is dealt with under Article 13. Judicial

Review refers that the Constitution is the supreme power of the nation and all laws are under

its supremacy. Article 13 states that:

1. All pre-constitutional laws, if in part or completely in conflict with the Constitution,shall have all conflicting provisions deemed ineffective until an amendment to the

Constitution ends the conflict. In such situation the provision of that law will again

come into force, if it is compatible with the constitution as amended. This is called

theDoctrine of Eclipse.2

2. In a similar manner, laws made after adoption of the Constitution by the ConstituentAssembly must be compatible with the constitution, otherwise the laws and

amendments will be deemed to be voidab initio.

3. In such situations, the Supreme Court or High Court interprets the laws to decide ifthey are in conformity with the Constitution. If such an interpretation is not possible

because of inconsistency, and where a separation is possible, the provision that is

inconsistent with constitution is considered to be void. In addition to article 13,

articles 32, 226 and 227 provide a constitutional basis to judicial review in India.

According to Article 13 in The Constitution Of India 1949. Laws inconsistent with or in

derogation of the fundamental rights

(1) All laws in force in the territory of India immediately before the commencement of this

Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the

extent of such inconsistency, be void

(2) The State shall not make any law which takes away or abridges the rights conferred by

this Part and any law made in contravention of this clause shall, to the extent of the

contravention, be void

2Jain, M.P. (2010).Indian Constitutional Law. LexisNexis Butterworths Wadhwa Nagpur. p. 921
http://indiankanoon.org/doc/1010805/http://indiankanoon.org/doc/772605/http://indiankanoon.org/doc/772605/http://indiankanoon.org/doc/1010805/


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(3) In this article, unless the context otherwise requires law includes any Ordinance, order,

bye law, rule, regulation, notification, custom or usages having in the territory of India the

force of law; laws in force includes laws passed or made by Legislature or other competent

authority in the territory of India before the commencement of this Constitution and not

previously repealed, notwithstanding that any such law or any part thereof may not be then in

operation either at all or in particular areas

(4)Nothing in this article shall apply to any amendment of this Constitution made under

Article 368 Right of Equality

The Supreme Court emphasized in Gopalan: InIndia it is the constitution that is supreme

and that a statute law to be valid, must in all cases be in conformity with the constitutional

requirements and it is for the judiciary to decide whether any enactment is constitutional or

not and if a legislature transgresses any constitutional limits, the Court has to declare the law

unconstitutional, for the Court is bound by its oath to uphold the Constitution.3

A statute cannot be struck down merely because the Court thinks it to be arbitrary or

unreasonable. Any such ground of invalidity must be related to a constitutional provisions,

such as Atricles 14, 19 or 21. Challenge on ground of wisdom of legislation is not permissible

as it is for the legislature to balance various interests.4

In State of Gujarat v. Akhil Gujarat Pravasi V.S. Mahamandal , rule of pith and substance

can be followed to determine wether a statute is ultra vires. The adavantage of the rule is that

it avoids a law being declared unconstitutional merely because it incidentally trenches intothe prohibited legislative area. The rule thus adds a further dimension to the legislative power

of a legislature.

3AIR 1950 SC 24

4Mylapore Club v. State of T.N.(2005) 12 SCC 752
http://indiankanoon.org/doc/654960/http://indiankanoon.org/doc/430906/http://indiankanoon.org/doc/430906/http://indiankanoon.org/doc/654960/


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Examples

a)Supreme Court of India Upholds Constitutionality of Criminalization of Sodomy

InKoushal v. NAZ Foundation, the Supreme Court of India has reversed the2009 decision

of the Delhi High Court that Sec.377 of the Indian Penal Code was unconstitutional under the

India Constitution and upheld India's sodomy law as constitutional.

The Supreme Court decision noted that India's sodomy law was pre-constitutional - - - and

derived from British rule - - - and also that the Court certainly had the power to declare the

law unconstitutional as inconsistent with several provisions of the India Constitution,

including

Article 13 (Laws inconsistent with or in derogation of the fundamental rights) Article 14 (Equality before law) Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place

of birth)

Article 19 (Protection of certain rights regarding freedom of speech etc.) Article 21 (Protection of life and personal liberty)

b) SC preference of NLU for judicial clerkship held unconstitutional

In a 56 page judgment justice Rajiv Shakdher said

Therefore, I have no hesitation in declaring that the scheme/ policy, as formulated, is

unconstitutional. This is not to say, that respondent no.1 cannot devise a scheme/policy.

It is undoubtedly empowered to design a policy which is fair and equitable, and that,

which enables every aspirant to be considered for engagement as a LCRA.

The courts do not adjudicate upon a constitutional question unless it is absolutely necessary

to do so for disposal of the case in hand. For example, In Saghir Ahmad5, the court found an

impugned law bad under Article 19(1)(g) and 31(2) and so it refrained from going into the

question whether or not the impugned law was bad under Article 301 as well because it was

not longer necessary to decide that question. The court would not cover the ground which is

strictly not relevant for the purpose of deciding the matter before it.

5(1955) 1 SCR 707
http://lawprofessors.typepad.com/conlaw/2013/12/supreme-court-of-india-upholds-constitutionality-of-criminalization-of-sodomy.htmlhttp://lawprofessors.typepad.com/conlaw/2009/07/dehli-high-court-invalidates-indias-sodomy-law-analysis.htmlhttp://lawprofessors.typepad.com/conlaw/2009/07/dehli-high-court-invalidates-indias-sodomy-law-analysis.htmlhttp://lawprofessors.typepad.com/conlaw/2009/07/dehli-high-court-invalidates-indias-sodomy-law-analysis.htmlhttp://lawprofessors.typepad.com/conlaw/2009/07/dehli-high-court-invalidates-indias-sodomy-law-analysis.htmlhttp://lawprofessors.typepad.com/conlaw/2013/12/supreme-court-of-india-upholds-constitutionality-of-criminalization-of-sodomy.html


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In State of Andhra Pradesh v. McDowell & Co.6 Supreme Court has observed

No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or

other constitutional infirmity has to be found before invalidating an Act. An enactment

cannot be struck down on the grounds that Court thinks it is unjustified. The Parliament and

the legislatures, composed as they are of the representatives of the people, and are supposed

to know the needs of the people and what is good and bad for them. The Court cannot sit in

judgement over their wisdom.

EFFECT

If an Act is initially unconstitutional being violative of a Fundamental Right, its invalidity

cannot be cured by framing rules for removing the infirmities from which the Act was

suffering. Thus, the Maharashtra Vacant lands was held to be violative of Article 14 and

Article 19(1)(f). The unconstitutionality of the Act was not cured by framing the Rules

thereunder.7

When the Supreme Court declares a law unconstitutional, the decision is binding on all courts

in India under Article 141. The virtual effect thereof is that the decision operates as a

judgement in rem against all persons who may seek relief subsequently and it is not necessary

for them to establish the unconstitutionality of the statute again. The courts are bound to

ignore an unconstitutional law.8

6

AIR 1996 SC 16287State of Maharashtra v. Kamal S. Durgule AIR 1985 SC 119

8p. 2295


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REPEALED

TheAnnulmentor abrogation of a previously existing statute by the enactment of a later law

that revokes the former law.

The revocation of the law can either be done through an express repeal, whereby a statute

specifically indicates that the former law shall be revoked and abrogated, or through

an implied repeal, which arises when the later statute contains provisions that are so contrary

or irreconcilable with those of the prior law that only one can remain in force.

The repeal of a law differs from the amendment thereof, because the amendment of a law

involves making a change in a law that already exists, leaving a portion of the original still

standing. When a law is repealed, however, it is completely abrogated.

Under Art.368

Power of Parliament to amend the Constitution and procedure therefore

(1)Notwithstanding anything in this Constitution, Parliament may in exercise of its

constituent power amend by way of addition, variation or repeal any provision of this

Constitution in accordance with the procedure laid down in this article

The power of a legislative body to repeal a law is coextensive with its power to enact such a

law. A statute after its repeal is as completely obliterated as if it had never been enacted.

Many laws has been repealed by Indian Parliament like Prevention of Terrorism Act, 2000,

Environment Tribunal Act, 1995 and Companies Act, 1956. Just as the legislature has the

power to enact laws, similarly it has the power to repeal them. Legislative power to repeal

prior laws is not inhibited by any constitutional prohibitions, but exists as a necessary

concomitant function of the legislature power.

Express Repeal

Repeal of a Statute may be express or by necessary implication. There is no reason to restrict

the meaning of the word repeal merely to an express repeal and to exclude the implied one.

Express repeal of a statute is usually made by stating that the earlier statute or a particular

provision therein is thereby repealed.
http://legal-dictionary.thefreedictionary.com/Annulmenthttp://legal-dictionary.thefreedictionary.com/Annulmenthttp://legal-dictionary.thefreedictionary.com/Annulmenthttp://indiankanoon.org/doc/528655/http://indiankanoon.org/doc/528655/http://legal-dictionary.thefreedictionary.com/Annulment


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Implied Repeal

Where there is direct reference in the repealing clause to a particular Act, it is a case of

express repeal. But where there is no direct reference, the matter will have to be determined

by taking into account the exact meaning and scope of the general words contained in the

repealing clause and the principles of law which govern the interpretation of the same.

Implied repeal is not readily inferred and the mere provision of an additional remedy by a

new Act does not take away an existing remedy.

EFFECT

Whenever an act is repealed it must be considered, except so as to transactions past and

closed, as if it had never existed. The effect thereof is to obliterated the Act completely from

the record of Parliament as if it had never been passed; it never existed except for the purpose

of those actions which were commenced, prosecuted and concluded while it was an existing

law.9

If any Act is repealed, without specifying the consequences of the repeal, Section 6 of the

General Clauses Act will apply and the repeal will not affect any legal proceedings or remedy

in respect of any right, privilege, obligation and liability acquired, accrued or incurred under

the repealed Act and legal proceedings or remedy may be instituted, continued or enforced as

if the repealing Act has not been passed.

But where the repeal is accompanied by fresh legislation on the same subject, the provision of

the new Act will have to be looked into to determine whether and how far the new Act

evinces a contrary intention affecting the operation of provision in question.

9Jain, M.P. (2010),Interpretation of Statutes. LexisNexis Butterworths Wadhwa Nagpur, p.1529


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Prevention of Terrorism Act, 2000

The Prevention of Terrorism Act, 2002(POTA) was ananti-terrorism legislation enacted

by theParliament of India in 2002. The act was enacted due to several terrorist attacks that

took place in India especially the attack on theParliament.The act replaced the Prevention of

Terrorism Ordinance (POTO) of 2001 and theTerrorist and Disruptive Activities

(Prevention) Act (TADA) (198595). The act wasrepealed in 2004 by theUnited Progressive

Alliance coalition.

The act defined what a "terrorist act" and a "terrorist" is, and granted special powers to the

investigating authorities described under the act. To ensure certain powers were not misused

and human rights violations would not take place, specific safeguards were built into the act.

Once the Act became law, many reports surfaced of the law being grossly abused.POTA was

arbitrarily used to crack down political opponents. Only four months after its enactment, state

law enforcement officers had arrested 250 people nationwide under the Act, and the number

was steadily increasing.

On October 7, 2004, theUnion Cabinet underUPA government approved the repeal of the

act. The act was repealed by passing Prevention of Terrorism (Repeal) Act, 2004.

Companies Act, 1956

The Companies Act 1956 is anAct of theParliament of India, enacted in 1956, which

enabledcompanies to be formed by registration, and set out the responsibilities of companies,

theirdirectors andsecretaries. Since its commencement, it has been amended many times.

The Act has now been replaced by the The Companies Act, 2013 after receiving the assent of

thePresident of India on Thursday, 29 August 2013.
http://en.wikipedia.org/wiki/Anti-terrorismhttp://en.wikipedia.org/wiki/Parliament_of_Indiahttp://en.wikipedia.org/wiki/2001_Indian_Parliament_attackhttp://en.wikipedia.org/wiki/Terrorist_and_Disruptive_Activities_(Prevention)_Acthttp://en.wikipedia.org/wiki/Terrorist_and_Disruptive_Activities_(Prevention)_Acthttp://en.wikipedia.org/wiki/Repealhttp://en.wikipedia.org/wiki/United_Progressive_Alliancehttp://en.wikipedia.org/wiki/United_Progressive_Alliancehttp://en.wikipedia.org/wiki/Union_Cabinethttp://en.wikipedia.org/wiki/United_Progressive_Alliancehttp://en.wikipedia.org/wiki/Act_of_Parliamenthttp://en.wikipedia.org/wiki/Parliament_of_Indiahttp://en.wikipedia.org/wiki/Companyhttp://en.wikipedia.org/wiki/Executive_directorhttp://en.wikipedia.org/wiki/Company_secretaryhttp://en.wikipedia.org/wiki/President_of_Indiahttp://en.wikipedia.org/wiki/President_of_Indiahttp://en.wikipedia.org/wiki/Company_secretaryhttp://en.wikipedia.org/wiki/Executive_directorhttp://en.wikipedia.org/wiki/Companyhttp://en.wikipedia.org/wiki/Parliament_of_Indiahttp://en.wikipedia.org/wiki/Act_of_Parliamenthttp://en.wikipedia.org/wiki/United_Progressive_Alliancehttp://en.wikipedia.org/wiki/Union_Cabinethttp://en.wikipedia.org/wiki/United_Progressive_Alliancehttp://en.wikipedia.org/wiki/United_Progressive_Alliancehttp://en.wikipedia.org/wiki/Repealhttp://en.wikipedia.org/wiki/Terrorist_and_Disruptive_Activities_(Prevention)_Acthttp://en.wikipedia.org/wiki/Terrorist_and_Disruptive_Activities_(Prevention)_Acthttp://en.wikipedia.org/wiki/2001_Indian_Parliament_attackhttp://en.wikipedia.org/wiki/Parliament_of_Indiahttp://en.wikipedia.org/wiki/Anti-terrorism


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CONCLUSION

The judicial function of assessing the constitutional legitimacy of legislation is both delicate

and responsible. To declare a statute unconstitutional places an onerous burden on the courts,

for a statute is enacted by an elected legislature which is conversant with the needs and

aspirations of the people. The courts, therefore, do not hold legislation unconstitutional in a

light vien. They have to draw a fine balance between the felt necessities of time and

constitutional fundamentals.

Parliament has been repealing many laws according to the needs and development of the

Society and thus making law more efficient and applicable and removing vagueness to some

extent.

Unconstitutionality and Repealing are two different things. On one hand, where

Unconstitutionality is declared by Judiciary when an act or provision conflicts with

Constitution or encroaches upon the fundamental right. Whereas, repealing is a legislative

act, where parliament either partially or completely enacts a new legislation or removes the

obsolete terms from an act.


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BIBLIOGRAPHY

Books-

1. Jain, MP,Indian Constitutional Law( 6th edn., LexisNexis Butterworths

Wadhwa, Haryana 2010)

2. Bindra, NS,Interpretation of Statutes(10th edn., LexisNexis Butterworths,

New Delhi 2008)

3. Singh, GP,Principles of Statutory Interpretation(13th edn., LexisNexis

Butterworths Wadhwa, Haryana 2012)

4. Seervai, HM, Constitutional Law of India(14th edn., Universal Law

Publishing House, New Delhi 2006)

5. Basu, DD, Commentary on the Constitution of India(8th edn., Wadhwa andCompany, New Delhi 2008)

Documents

Language of Law